Hong Kong Intelligence Report #35 Fragrant Harbour: Hidden Meaning of Controversy on Trias Politica

Updated: Oct 8

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FILE PHOTO: Hong Kong Meme on ''Decolonization''. ©imgflip/Huaxia Film Distribution Company; Ryota Nakanishi

IMPORTANT



The Original Concept of Trias Politica


“If the legislative and executive authorities are one institution, there will be no freedom. There won’t be freedom anyway if the judiciary body is not separated from the legislative and executive authorities.”


- Charles de Montesquieu (1)


Trias Politica (Tripartite System; Separation of Powers):

Recent controversy on Trias Politica is just misleading and inaccurate, a bureaucratic disinformation operation that it's politically meant to distract public attention from the imminent necessity of decolonisation of UK-dominated jurisdiction of Hong Kong courts, the last bastion of UK colonialist interests in post 1997 Hong Kong.


Apparently the present social status of Hong Kong is semi-autonomy within China but it still is partially semi-British colony, too. Hong Kong has no adequate conditions for normalised Trias Politica due to the fatal lack of decolonisation within the framework of One Country & Two Systems implemented astonishingly without decolonisation of the ex-British colony in 1997 yet it does not mean that the present SAR Hong Kong does not have certain extent of Trias Politica.


Under the circumstances, the controversy on ''No Existence of Trias Politica in HK'' not only politically serves external forces like USA who recently labeled Hong Kong as ''mainland China'', but also it serves distracting public attention from necessary decolonisation reform on its common law system. The major issue is that incumbent UK judges are in charge of Hong Kong jurisdiction while foreign judges are not allowed in both UK and USA. This judicial contradiction from colonial era must be solved in order to safeguard judicial independence of SAR Hong Kong from foreign forces.


The SAR bureaucrats ''systematically'' initiated the unfruitful controversy from above and its resulted malign cycle which inevitably involved calculated cliched reactions from opposition, mainstream media, pro-establishment camp, law figures and bots. The aim is to manipulate general public opinion by dominating it with false propositions and pseudo-themes. Because it's purely rooted in brains of bureaucrats and their business friends in employers' trade unions, it won't infiltrate grassroots level for a long time. As this time, it started from bureaucrats and ended in bureaucrats yet they actually achieved the aim to close doors for decolonisation. This ''sanitising'' operation on the general public opinion forms a systematic cycle when there is a certain reformist tendency in political sphere then SAR bureaucrats instigate a controversy with a false proposition to push aside the actual reform meanwhile it is also deliberately done as a PR stunt to comfort the central government.


Furthermore, the denial of Trias Politica is harmonious with the long term political agenda of ruling class of Hong Kong to fuel so called ''pro democracy'' movement against China while posing as pro-Beijing. They can now say that Hong Kong's difficult condition is due to the lack of both universal suffrage and separation of powers. In fact, self-contempt of its own establishment by SAR bureaucrats is an insult to the central government that it implies the totalitarian nature of being part of China in terms of Western democracy.


In fact, lack or denial of Trias Politica in Hong Kong has not been driving force for any public unrest or discontent ever occurred in Hong Kong until present. On the contrary, the majorities of SAR government, opposition and pro-establishment camp had unanimously insisted that the political system of Hong Kong is based on Trias Politica since the handover of Hong Kong to China in 1997 until the recent controversy. Thus the denial of Trias Politica is not only self disdain for the central government itself, justification of US interpretation of the present Hong Kong status for sanctions but also it is a totally ''empty'' controversy to distract attention of public from decolonisation reform.


The judicial hegemony or judicial dictatorship of Hong Kong is originated in direct continuation of the British Hong Kong judicial system and systematic recruitment of UK judges. It is an aftermath of the lack of decolonisation in the judicial filed not an essential result of Trias Politica or One Country Two System itself. At least Trias Politica has nothing to do with the political turmoil at all.


FACTS


The controversy instigated by the secretary for education, Kevin Yeung on August 31, 2020 when he required deletion of Trias Politica phrase from the liberal studies text books during a voluntary screening by the Education Bureau.


高中通識教科書經教育局「專業諮詢服務」審閱後,新版書介紹香港法治時,刪去或修改「三權分立」內容。教育局長楊潤雄昨日回應,指「在香港是沒有三權分立」,不論九七前的制度,至九七後根據《基本法》的制度,都不是一個三權分立的制度,強調「這些事實必須清楚在教科書中說出」,這是本屆官員首次公開否定「三權分立」之說。有民主派質疑楊改寫事實,建制派則贊同教育局糾正。(2)


Kevin Yeung thinks there was and is no Trias Politica while Hong Kong has maintained executive dominance since the British Hong Kong colonial era. Key figures of opposition and pro-establishment camps responded to his remark immediately.


Chairperson of ''opposition'' Civic Party Alan Leong criticised:


梁家傑:基本法多項條文為監察政府 洗腦下一代信「一權獨大」

基本法條文上沒有列明「三權分立」,但也沒說到「行政主導」或「超然」。公民黨主席梁家傑批評楊潤雄說法錯誤、帶「政治目的」,「將三權分立抹掉,變成一權獨大」。他說,基本法雖無寫明三權分立,但多項條文的精神及用意均是為了監察政府。梁舉例說,終院首席法官的任命必須通過立法會,而非由特首直接委任,足以顯示立法、司法、行政三權之間「分庭抗禮」,互相制衡。(3)


Indeed, Alan Leong told the facts that the basic law did not literally mention both Trias Politica and executive dominance. Regina Ip who is a member of Executive Council of Hong Kong, legislative council of Hong Kong and a chairman of New People's Party agreed with Kevin Yeung:


葉劉:港司法獨立 三權分立另概念 教科書寫得不好 贊同糾正

行政會議成員、新民黨主席葉劉淑儀表示,本港從沒有「三權分立」的觀點,她早已撰文提出,認同楊局長所言正確,「回歸前是港督主持立法局,回歸後則奉行行政主導,哪裏有三權分立?」她說,香港有司法獨立,三權分立是另一概念,全球只有美國將此寫入憲法,「連英國都無」。(4)


Moreover Mingpao cited the chief judge of the controversial Court of Final Appeal's claim on this theme which published in January 2014:


終審法院首席法官馬道立2014年稱《基本法》清楚訂明立法、行政、司法機關三權分立的原則。(5)


At a press conference, Carrie Lam publicly supported Kevin Yeung on September 1, 2020:


Hong Kong’s constitutional system has no separation of powers between the executive, legislature and judiciary, Chief Executive Carrie Lam said on Tuesday, throwing her weight behind her education secretary despite previous statements to the contrary from top judges. ......


“Many people misunderstand the role of the chief executive as merely the head of the government. This is incorrect,” she said, adding that she has the power to appoint judges and approve legislative budgets.


Lam said the central government [China] grants administrative, legislative and judicial power to the Hong Kong Special Administrative Region; ultimately, the three institutions are accountable to Beijing through an executive-led system of governance. “I hope the three institutions can work together and I agree they should be subject to checks and balances.” ......


In 2001, then-chief justice Andrew Li said judicial independence was the most basic feature of Hong Kong’s common law system and “lies at the heart of the separation of powers.” ......


In 2015, then-president of the Legislative Council Jasper Tsang wrote in a column that the separation of powers was not a necessary condition for democracy. And in 2016, Rita Fan, a pro-Beijing heavyweight and member of China’s top legislative body – the Standing Committee of the National People’s Congress – said the Basic Law only safeguards judicial independence. (6)


It seems that Carri Lam is intending to deal with the grave issue of judicial dictatorship by revising the decades long acknowledgment of the present governing system in Hong Kong however it tended to serve the opposite purpose.


All of them agree one thing on this that the basic law only safeguards so called ''judicial independence''.


The notorious Secretary for Justice Teresa Cheng later published her blog post on September 5 ,2020, and echoed the same assertion but she did not clearly concluded it.


Some refer to the concept of separation of powers. However, even international academic research shows that this phrase may connote different interpretations.


The Basic Law empowers the courts of the HKSAR to exercise judicial power independently, including that of final adjudication. Some have raised concerns over the judicial independence in the light of the political structure of the HKSAR. But these concerns are totally unfounded. Article 85 guarantees that the courts of the HKSAR shall exercise judicial power independently, free from any interference.


The Basic Law safeguards the exercise of judicial power by members of the judiciary without interference. According to the late Chief Justice of the United Kingdom, Lord Bingham, the meaning of “judicial independence” is “independent in the sense that they (adjudicators) are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial” (remarks). The political structure laid down in the Basic Law fully reflects the principle of rule of law and the essence of judicial independence. (7)


Teresa Cheng got to the point that it is just a matter of interpretations thus we can approve it or deny it. It just depends on different point of view. In general, any government can be seen as executive-led system or incompetent. Furthermore, Teresa Cheng implied their real intention and emphasis on the controversy that she put more emphasis on safeguarding the Judicial independence than so called vague ''executive-led'' system. Like her blog post, the core of their establishment is not ''executive-led'' incompetent government but its core system is ''judicial independence.'' This is the point.


On September 7, 2020, The China Liaison Office and the Hong Kong and Macau Affairs Office (HKMAO) backed Carrie Lam on this and restated that ''no separation of powers'' in Hong Kong.


The Liaison Office further stated that the three branches of government – the executive, the legislature and the judiciary – report to the central government in Beijing through the chief executive. This supported the belief that the city is governed by an “executive-led” system, it said.

“The HKSAR political systems can be summarised as the division of three powers, executive-led, judicial independence, the executive reports to the central government on behalf of the HKSAR.” (8)


Alvin Yeung of the Civic Party concisely mentioned their intention:


“When they say there is no such thing as the separation of powers, we have to think: what is the rationale? Why did they come out and argue in this way out of nowhere twenty-odd years after the handover? I don’t think it’s a purely academic [question].”


Yeung added the denial of the separation of powers, when considered in the context of recent criticisms from the pro-Beijing camp on the courts, was a major cause for concern: “When read together with the criticism by the pro-Beijing camp… it’s reasonably suspicious,” he said.

“These people are targeting the courts and individual judges. That’s extremely worrying.” (9)


Indeed, Alvin Yeung is not stupid that on the superfluous aspect of the controversy, pro-establishment and Beijing sides target the judicial system yet Carrie Lam and her team skilfully reversed the political meaning of the entire controversy without changing the pose and staging, and it ended up in suppression of any criticism against the problematic judicial dictatorship on September 9, 2020. Real journalists should not ignore this zigzag of the SAR government on this issue. This is how they systematically bury pro-China criticism on the judicial system. SAR bureaucrats are political specialists to manage the central government and pro-China camp for the vested interests of the local oligarchs behind them.


''Kill two birds with one stone''


After the predictable release of Jimmy Lai from the criminal charge on his threatening the journalist of Oriental Daily in June 2017 on September 3, 2020, raged pro-establishment figures complained about judicial bias on the case. Then Carrie Lam skilfully and efficiently ended the rising discontent by using the momentum of the Trias Politica controversy. The latter served suppression on the judicial complaints just raised from the release of Jimmy Lai. The royal pro-establishment figures silenced swiftly. This is Hong Kong politics.


On September 8, 2020, Carrie Lam reasserted that people should respect the judicial independence. This is not only the finale of the Trias Politica controversy but also it's ''Kill two birds with one stone'' that silenced the complaints from pro-establishment camp on the release of Jimmy Lai. The most powerful body in the SAR establishment is obviously the judiciary not so called ''executive-led'' incompetent bureaucrats.


READ MORE:

林鄭︰不應肆意批評法官裁決 特首不干預司法機關



COMMENT


Immanuel Kant-like Dialectics on Trias Politica:


(a) Thesis


One can say that Hong Kong has Trias Politica because executive facility, legislative facility and judicial body are separated. For SAR Hong Kong, The Basic Law defines separation of powers into six sections, such as The Chief Executive; The Executive Authorities; The Legislature; The Judiciary; District Organizations; Public Servants. (10)


People's Republic of China separates powers into at least eight bodies, such as National People's Congress (NPC); Standing Committee of the National People's Congress (NPCSC); President; State Council (central government); Central Military Commission (CMC); National Supervisory Commission (NSC); Supreme People's Court (SPC); Supreme People's Procuratorate (SPP). Thus SAR Hong Kong and China further separated powers into six or eight bodies not just only division among three basic facilities -Taiwan separates the powers into five bodies-. Formally separation of powers does exist in the HK and Chinese establishment no matter it is based on one party or two party or multiple party (Mainland) or non party system (HK).


(b) Antithesis

One can also say that Hong Kong has no Trias Politica because SAR government and central governmental bureaucrats are not elected by universal suffrage of the people. Only 1200 political members of Election committee of the Hong Kong Special Administrative Region can elect Chief Executive of Hong Kong. SAR government is based on non-party system; the central government is CCP led government, almost one party system - in fact China is multiple party system - those members who enjoying both executive powers and legislative powers are overlapped to some extent, not completely separated. Furthermore, both executive-legislative power holders appoint judicial bodies in supreme and local courts. Thus they can claim that Hong Kong has no Trias Politica at all. Appointment of judges by the executive body is here seen as denial of Trias Politica.


Synthesis: Both are correct. The latter (b) also denies the advanced western countries in where governments are formed by the same legislative ruling party members. If we think overlapping of certain figures of executive and legislative bodies or vast majority of party memberships in both facilities and beyond, many western democratic countries can be labelled as non Trias Politica. In fact, separation of powers is originally limited and illusional when the entire establishment is run by the ruling class and ruling parties. Thus Trias Politica formalistically just means separation of executive, legislative and judicial powers into different bodies. It does not define itself if it should be based on one party or two party or multiple party or non party system.

This dialectics means that the recent controversy on Trias Politica is politically biased, and Trias Politica does exist in Hong Kong to some extent. And Executive Dominance (行政主導) is reversely questionable in practice while Hong Kong government is not based on party system in which this concept originally defined. In fact, many advanced capitalist countries are so called elective dictatorship / executive dominance. Japan's Abe regime and Trump administration are the best examples. They controlled three powers by grabbing the control on human resourcing within the establishment. For instance,


President Donald Trump has made big changes to the federal judiciary since taking office in 2017. Trump has appointed two Supreme Court justices – Neil Gorsuch and Brett Kavanaugh – as well as nearly 200 other judges with lifetime appointments to lower federal courts.


  1. Trump has now appointed almost a quarter of all active federal judges in the United States.

  2. Trump has appointed more federal appeals court judges to date than any recent president at the same point in their presidency.

As of July 7, there were 792 active judges serving across the three main tiers of the federal court system: the Supreme Court, 13 regional appeals courts and 91 district courts governed by Article III of the U.S. Constitution. In his first term, Trump has appointed 194 of those judges, or 24% of the total. (This analysis excludes appointees to certain specialized courts, such as the U.S. Court of International Trade, as well as appointees to non-Article III territorial courts in Guam, the Northern Mariana Islands and the Virgin Islands.) (11)

In conclusion, Donald Trump regime and other US presidents can be seen as so called ''executive-led'' system bodies, ''non-separation of powers'' according to the logic of the recent SAR government officials. Thus the theory of ''executive-led'' system is totally groundless and inevitably conflicted with the reality of separation of powers. On this controversy, both theories were equally used for camouflage of judicial dominance / judicial dictatorship. No local ''professional'' media found this.

As citizens consciously know, Hong Kong's real issue is not executive dominance but judicial dominance / judicial dictatorship (司法獨大) which still remains as part of British colonialism. It is the grave origin of social injustice in Hong Kong and the last target of uncompleted decolonisation of the ex-British colony.


NOTES


  1. Medium.com, Charles de Montesquieu Important Quote, April 15, 2017. https://medium.com/@montesquieu1689/baron-de-montesquieu-important-quote-8d71293a77b9

  2. Basiclaw.gov.hk, Chapter IV Political Structure, July 17, 2020. https://www.basiclaw.gov.hk/en/basiclawtext/chapter_4.html

  3. Mingpao, 楊潤雄:港沒「三權分立」 須在教科書說出, September 1, 2020. https://news.mingpao.com/pns/要聞/article/20200901/s00001/1598897221618/楊潤雄-港沒「三權分立」-須在教科書說出

  4. Ibid.

  5. Ibid.

  6. JENNIFER CREERY, Hongkongfp.com, No separation of powers in Hong Kong says Chief Exec. Carrie Lam, despite previous comments from top judges, September 1, 2020. https://hongkongfp.com/2020/09/01/no-separation-of-powers-in-hong-kong-says-chief-exec-carrie-lam-despite-previous-comments-from-top-judges/

  7. Teresa Cheng, Doj.gov.hk, Division of work and complementing each other, September 5, 2020. https://www.doj.gov.hk/eng/public/blog/20200905_blog1.html

  8. RHODA KWAN, Hongkongfp.com, Beijing agencies express support for Chief Exec. Carrie Lam’s stance that Hong Kong has no separation of powers, September 9, 2020. https://hongkongfp.com/2020/09/09/beijing-agencies-express-support-for-chief-exec-carrie-lams-position-on-no-separation-of-powers/

  9. Ibid.

  10. Basiclaw.gov.hk, Chapter IV Political Structure, July 17, 2020. https://www.basiclaw.gov.hk/en/basiclawtext/chapter_4.html

  11. Pewresearch.org, How Trump compares with other recent presidents in appointing federal judges, July 15, 2020. https://www.pewresearch.org/fact-tank/2020/07/15/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/


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