tim's experiment

Look at this way. If Mr Zhang Xiaoming, chief of the central government’s liaison office in Hong Kong, had stood up at a public function and said that the Occupy Central movement was organised by little green men as a preparation for a Martian invasion, we would all have giggled. But the Martian invasion theory cannot be dismissed as totally off the planet, as it were. Absence of evidence is not evidence of absence. We may feel it is a long shot but it cannot be positively disproved. Perhaps there was a Martian connection.

What Mr Zhang did say at a recent celebration of the 25th anniversary of the Basic Law, on the other hand, was not just unlikely but palpably and demonstrably wrong. The Chief Executive of the SAR, according to Mr Zhang, “possesses a special legal position”. For this reason he was above the executive, legislature and judiciary … “his power is not limited to leading the Hong Kong administration”.  Mr Zhang’s first error was to include the word “legal”. Of course we may well suppose that the CE does enjoy a special position – he enjoys the protection and advice (usually bad) of the Liaison Office. If he is in real trouble he can call on the support of the PLA. But we cannot deduce his legal position from observations of this kind. His legal position derives from the law, specifically in this instance from the relevant articles of the Basic Law, which specify his powers and role, as well as those of the other parts of the government. Mr Zhang’s fundamental error is to suppose that the law is whatever he says it is. This is the way things work on the mainland, but it is not yet the way things work here.

Let us suppose that you are accused of a crime. Let us further suppose that the Chief Executive publicly orders the court to convict you. This is a clear breach of Hong Kong law. The court will disregard the order. The CE will be prosecuted (albeit, the way things are done these days, very slowly). If it is argued in his defence that he enjoys a special legal superiority over the courts, conferred by the chief of the Liaison Office, then the defence will fail. Legal authority in the Hong Kong system derives only from the law, as interpreted by judges. Mr Zhang’s pronouncements enjoy no special status and indeed if he breaks the law himself he will be arrested and (extremely slowly) prosecuted. At least in theory. This is what the rule of law means, among other things.

Not content with annoying the simple by elevating the CE to godlike status Mr Zhang proceeded to irritate the constitutionally sophisticated by chatting about that mysterious beast, the separation of powers. The separation of powers was invented in the 18th century by the French political theorist Montesquieu, who picked up a moderate version of the idea from Blackstone and, as French intellectuals tend to do, carried it to its logical conclusion. The power of government commonly takes three forms, according to the theory – to run the country, which is executive, to make laws, which is legislative, and to adjudge disputes, which is judicial. Montesquieu claimed that the English system owed its success to the fact that the “three powers” were separated. In his defence we should perhaps note that the alternative political model in 18th century Europe was absolute monarchy, in which the powers were not separated at all. Still, it is now generally agreed that the three powers were not actually separated in the 18th century. Nor are they now. The idea had much influence on the framers of the American constitution, but it is impractical. Some overlap cannot be avoided. Even in America the President appoints some judges and his approval is required for legislation. Congress has unavoidable power over policy because it controls the purse strings.

So when Mr Zhang says, as he did, that “Hong Kong is not a political system that exercises the separation of powers — not before the handover and not after the handover — ” What can one say? No shit, Sherlock, perhaps. Or Doh!

I suspect that Mr Zhang was not really addressing the Hong Kong audience at all. There seems to be a backstage tussle going on between those who think that Hong Kong’s problems can be solved by redressing grievances and reforming the system, and those who think they can be solved by repressing dissent. It is suggested — and when dealing with a secretive organisation I realise that this may be unfair — that the Liaison Office is pushing for repression and the Hong Kong and Macau Affairs Office in Beijing for reform and redress. This sort of controversy can run and run. A similar argument over Ireland preoccupied English governments for four centuries. Clearly any attempt to soothe rugged feelings by giving the people what they want will have to start with the thought that C.Y. Leung should be removed from the scene as soon as decently possible. But he is the Liaison Office’s pick. So any attempt to remove him from his pedestal would imply (quelle horreur!) a bad choice by them in the first place. Better to provide a higher pedestal. Personally I think the priorities in the Dump CY campaign are misplaced. It would be more useful to get rid of Mr Zhang.