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請張曉明熟讀基本法

2015/9/14 — 13:31

【法政匯思短評:關於張曉明的「特首超越三權」論】
THE PROGRESSIVE LAWYERS GROUP'S SHORT COMMENTARY REGARDING ZHANG XIAOMING'S CLAIM THAT "THE CHIEF EXECUTIVE TRANSCENDS THE THREE BRANCHES OF GOVERNMENT"

中聯辦主任張曉明在九月十二日表示,行政長官具超然於行政、立法和司法機關的地位,又指三權分立只適用於主權完整國家的層面上。法政匯思認為此等論點欠缺法律基礎。

(1)特首地位來自基本法,不存在「特殊法律地位」

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基本法於香港特區具有憲法地位,是特首的權力來源。特區事務,包括特首的職能和權限,均由基本法規定,不可能由於有某個幹部認為行政長官是中央管治香港的途徑而隨意改變:

- 基本法第二條列明,香港享有行政管理權、立法權、獨立的司法權和終審權。

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- 基本法第十一條規定香港的行政、立法和司法方面等的制度以及政策,均須依據基本法的規定。

- 基本法第五十九條訂明特區政府是香港的行政機關,而第六十條則訂明特首是特區政府的首長。因此,特首明顯只是行政機關的一部分,絕不享有凌駕行政機關的地位。

- 基本法第六十四條亦訂明特區政府必須遵守法律。因此,作為特區政府的首長,行政長官亦必須遵守亦不能超越法律,包括基本法。

由此可見,在基本法下,特首在香港政制的地位絕並不存在所謂特殊法律地位的空間。所以,張曉明有關的說法,毫無法律基礎。

(2)三權分立並非只適用於主權國家,特首受立法司法制衡

三權分立,即行政、司法和立法三個機關獨立運作而又互相制衡,目前在不少民主地區的全國政府、州政府甚至地方政府均正實行。張曉明指其只適用於主權國家層面就充分表現他的無知。

至於在香港,從基本法整體的條文來看,三權分立的安排至為明顯,這一點亦已得到終審法院確認(參見梁國雄 對 香港特別行政區立法會主席 (2014),第27段)。基本法清楚分辨香港的行政、司法和立法機關,並於多處列出其三者互相制衡的條文。例如:

- 基本法第六十四條列明特區政府須遵守法律,並對立法會負責。

- 基本法第四十九條、五十條、五十一條及七十六列出行政長官對立法會的限制,如在特殊情況下可解散立法會等。

- 司法機關方面,基本法第八十條訂明香港各級法院是香港的司法機關,行使香港特別行政區的審判權,司法獨立則受第八十五條保障:「香港特別行政區法院獨立進行審判,不受任何干涉」。

(3)請張曉明熟讀基本法

張曉明是一位西南政法學院及中國人民大學等在內地被視為著名院校的法律系畢業生。惟他在星期六的那番言論卻展示出他對法律的曲解及無知,實在有愧於其母校的聲譽。與其再為香港添煩添亂,張曉明這位幹部應該先熟讀基本法再說。簡單來說,張的論述簡直是荒謬絕倫,而那些嘗試為他護航的人士應小心「跟車太貼」,最終同樣被視為一群小丑。

法政匯思
2015年9月14日

The Director of the Central Government's Liaison Office, Zhang Xiaoming, said on 12 September that the. Chief Executive's ("CE") position transcends that of the executive, legislative and judicial branches of government, and that separation of powers between these three branches of government can only be applied at the level of a sovereign. The Progressive Lawyers Group considers such views to be devoid of legal basis.

(1) The CE's position stems from the Basic Law, with no "special legal status"

The Basic Law has constitutional status in Hong Kong SAR, and is the source which sets out the CE's powers. The SAR's affairs, including the CE's roles and limits on his powers, are provided for under the Basic Law, and cannot be altered simply by some apparatchik claiming that the CE is the means by which the Central Government rules Hong Kong:

- Article 2 of the Basic Law clearly states that Hong Kong enjoys executive, legislative, and independent judicial (including the power of final adjudication) powers.

- Article 11 of the Basic Law requires that Hong Kong's systems in respect of executive, legislature and judiciary shall be based on the Basic Law itself.

- Article 59 of the Basic Law stipulates that the SAR Government is the executive branch of government in Hong Kong, and that the CE is the head of the SAR Government. Thus, the CE is clearly and merely part of the executive branch, and does not in any way enjoy a status which transcends the executive branch.

- Article 64 of the Basic Law also states that the SAR Government must abide by the law. Thus, as the head of the SAR Government, the CR must abide by and cannot transcend the law, including the Basic Law.

As can be seen, under the Basic Law, there does not exist any so-called special legal position when it comes to the CE's role in Hong Kong's political system. Thus, Zhang Xiaoming's statements are devoid of legal basis.

(2) Separation of powers between the three branches of government is not only applicable at the sovereign level, the CE is subject to legislative and judicial checks

The separation of powers between the executive, legislative and judicial branches, where they operate independently but also subject to checks on each other's powers, is something that is currently applicable to the national, state and even local governments of many democratic jurisdictions. Zhang Xiaoming's assertion that this concept is applicable only at the level of the sovereign clearly shows his ignorance in this regard.

As to Hong Kong, looking at the provisions of the Basic Law as a whole, the existence of such separation of powers is relatively clear, and was affirmed by the Court of Final Appeal (see Leung Kwok Hung v The President of the Legislative Council of the Hong Kong Special Administrative Region (2014), paragraph 27). The Basic Law clearly delineates Hong Kong's executive, legislative and judicial branches of government, and in a various parts set out provisions which create checks on each other's powers. For example:

- Article 64 of the Basic Law states that the SAR Government must abide by the law and be accountable to the Legislative Council.

- Articles 49, 50, 51 and 76 states that the CE's checks on the Legislative Council, such as the special circumstances when he can dissolve the Legislative Council.

- As regards the judiciary, Article 80 of the Basic Law states that the various courts of Hong Kong constitute Hong Kong's judiciary, which exercises the Hong Kong SAR's judicial power, and the independence of the judiciary is protected by Article 85: "The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference."

(3) Zhang Xiaoming should seek to familiarise himself with the Basic Law

Zhang Xiaoming graduated with law degrees from Southwest University of Political Science and Law and Renmin University of China, both of which are apparently colleges of renown within Mainland China. However, his remarks on Saturday demonstrated his twisting and ignorance of the law, which is a disservice to his alma mater's reputation. Rather than yet again sowing trouble and discord in Hong Kong, Zhang Xiaoming the apparatchik should seek first to familiarise himself with the Basic Law before saying anything further on these topics. In short, Zhang's comments are so patently absurd that those seeking to defend him should be careful of being seen as sailing too close to the wind, lest they end up also appearing as buffoons themselves.

Progressive Lawyers Group
14 September 2015

(標題由編輯所擬)

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