Both Kevin Yeung, the Secretary for education, and Carrie Lam, the Chief Executive, stirred up controversies by claiming there was no separation of powers in Hong Kong.
Today (September 9) Teresa Cheng, the Secretary for Justice, submitted an article in South China Morning Post and Sing Tao Daily, stating that “separation of powers” is not relevant in Hong Kong, and such a term used arbitrarily will lead to misunderstanding of the constitutional system of Hong Kong.
Quoting a 2008 judgment of Andrew Cheung, soon-to-be Chief Justice and judge of the Court of First Instance at that time, Cheng quoted Cheung’s advice to exert great care in the application of the concept in Hong Kong.
However, legal expert Danny Gittings, in his twitter, questions, “perhaps she should explain to HK's next Chief Justice why she misquoted him in support of her anti-separation of powers agenda?"
(1/5) Did the Secretary for Justice actually write this oped? If so, perhaps she should explain to HK's next Chief Justice why she misquoted him in support of her anti-separation of powers agenda? https://t.co/F3l4QDm33G— Danny Gittings (@dgittings) September 9, 2020
In her article, Cheng stated that Cheung mentioned separation of powers in Luk Ka Cheung’s case against market inappropriate behavior and another case. Cheung quoted the article of Sir Anthony Mason, non-permanent judge of the Court of Final Appeal at that time, to remind an extremely careful application of the concept in Hong Kong.
However, legal expert Danny Gittings argued that Cheng, as the Deputy Judge of the Court of First Instance of the High Court in 2011, has correctly quoted Cheung’s judgment, but misquoted this time in her article. He asked, "Did the Secretary for Justice actually write this oped?"
Reporter from Stand News has reviewed the judgment of Cheung, which quoted the article of Sir Mason that suggested each place has its own principles on the separation of powers, and “the consequence is that judicial decisions on the separation of powers need to be treated with great care before they can be imported from one jurisdiction to another”. Cheung also stated in the same judgment that “the principle of separation of powers is enshrined in the Basic Law”.
Gittings added that executive-led government has only ever been mentioned by courts in two cases since 1997, compared with more than 70 cases related to the separation of powers. He believed Cheng article was distorted because the readers would not know the details of these court cases and get the impression from reading the article.
In her article, Cheng pointed out that the court judgments, which have referred to ‘separation of powers’ often, simply described division of duties and responsibilities of various departments under the Basic Law, but have not addressed the concept in detail.
In quoting the cases of Lau Cheong v HKSAR and Leung Kwok Hung v President of the Legislative Council; and the document of the Appeal Committee on the case of Sixtus Leung Chung Hang and Yau Wai Ching v Chief Executive, Cheng also stated that “on none of these occasions did the Court of Final Appeal or the Appeal Committee attempt to embark on any in-depth discussion of the doctrine, such as its origin and its applicability in Hong Kong before and after July 1, 1997, probably because the matters before the court could be disposed of without such discussion.”