Can’t get the Bar or Judiciary to bow to pressure?
Easy, create a faux legal argument based on the tenuous proposal that the
administration can make decisions with implications on judicial oversight and legislation.
Here’s what the SCMP has to say……. simply hand over Argument submitted to Court of Appeal by the HK Justice Dept suggests administration can make decisions with implications on judicial oversight and legislation..
Hong Kong’s justice department has told the courts that the city has always been “executive-led” on constitutional matters instead of being governed by the principle of a pure separation of powers, fuelling an ongoing legal debate over the validity of the anti-mask law.
The argument, presented in a 30-page paper by the Department of Justice (DOJ) and submitted to the Court of Appeal, suggested the administration had more power than commonly thought, with implications on judicial oversight and legislation.
Hong Kong’s justice department has told the courts that the city has always been “executive-led” on constitutional matters instead of being governed by the principle of a pure separation of powers, fuelling an ongoing legal debate over the validity of the anti-mask law.
The argument, presented in a 30-page paper by the Department of Justice (DOJ) and submitted to the Court of Appeal, suggested the administration had more power than commonly thought, with implications on judicial oversight and legislation.
The High Court had previously found the ban on masks – which was introduced to quell the anti-government movement roiling the city –
, ruling that the chief executive had displaced the power of the legislature by invoking an emergency law.
The government then brought the case to the Court of Appeal in a bid to reinstate the ban, arguing the lower court should allow the executive branch a broader discretion over emergency laws.
On Monday, arguing that the first instance court was wrong to find power only vested in the legislature, the DOJ said in its paper that Hong Kong’s system had always been executive-led.
“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,” the department said in the paper.
“The Basic Law does not follow a rigid separation of powers … Before July 1, 1997, neither the British system nor the Hong Kong system was based on a rigid separation of powers.”
“Basic Law Article 56(2) clearly contemplates that the chief executive, as head of the [SAR] government, needs to adopt measures in emergencies,” it said.
The department added that the National People’s Congress Standing Committee (NPCSC) – China’s top legislative body – had never found that the emergency laws contravened the Basic Law, and therefore such a position should be “deemed to have continued”.
