It might have been expected for the National People’s Congress Standing Committee to proclaim that Hong Kong’s system of governance is based on an “executive-led” model. But to hear this argument coming from the Department of Justice is alarming.
The DOJ, which oversees prosecutions, has submitted an application to the Court of Appeal seeking to overturn the High Court’s decision that ruled the government’s face-mask ban unconstitutional. Apparently, it is on the grounds that the court doesn’t understand who is really the boss of this place.
The DOJ actually did this on Monday, but it seems that few alert reporters read the 30-page document until late yesterday. The SCMP’s Alvin Lum picked it up, filing a story at 10pm that was pushed off the home page by lunchtime today. It needs to be read.
The audacity is remarkable. Despite many legal precedents, including statements by Chief Justices, confirming that the Basic Law marks out a separation of powers between Hong Kong’s executive, legislative and judicial branches, the DOJ has decided to, in the parlance of the pub, have a go.
The document argues that, in essence, Hong Kong’s system of governance has always been “executive-led”. This alone is not worth challenging. But then it goes further, extrapolating to say this means that: “The learned judges [in the High Court] … have failed to appreciate that the system in the HKSAR does not embody the purest form of separation of power. … Before July 1, 1997, neither the British system nor the Hong Kong system was based on a rigid separation of powers.”
This is a slope that is way too slippery for Hong Kong to be heading toward. It can only be hoped that the Court of Appeal stands up not only for itself, but for the system of which it is a part. December 6 is the date when Hong Kong will know.