The US election impasse, coinciding with constitutional crises in Indonesia and the Philippines and perhaps Taiwan and Thailand too, focuses attention on the issue of separation of powers. This is relevant for Hongkong too. SCMP


The world is awash with issues of the constitution, that word which sounds grave and imposing but in reality is simply the place where law and politics meet. In the US, the election looks likely to be decided by the Supreme Court. In the Philippines, Indonesia and Taiwan elected presidents are faced with the possibility of impeachment before their terms are even half complete. Thailand faces a parliamentary election under a completely new set of constitutional rules which may see leading personalities disbarred even before the January 6 polling day.

All this is worth watching. Constitutional conditions in Hongkong are of course entirely different from those named above. But Hongkong faces a dilemmas over the future relationship of the legislative and executive branches, the role of the executive council, the relationship of the permanent bureaucracy to the executive, and of the judiciary to all the other power centres. So what can we learn?

One of the great strengths of the US Constitution has been the clear separation of powers between the executive - an elected presidency - the lawmakers (the two chamber Congress which represents individual state as well as majority interests) and the judiciary which applies and interprets the law. It may not be a very efficient or quick acting system but that is part of its aim - to keep a balance of power, provide for popular representation without succumbing to mob rule or the tyranny of a temporary majority. So does the Florida vote counting fiasco tells us more about the system than that the actual voting procedures are haphazard?

Certainly the electoral college system is not to blame. One can argue that given modern communications and the de facto greater centralisation of power in the US the president should now be elected by direct popular, national vote. But the electoral college is a legitimate way of reflecting the nation's origin as a union of states with individual identities and diverse interests. To me, the problem shown up by the electoral impasse is the inadequate separation of the judiciary from the political process. Judges may want to be thought to be trying to apply the law in an independent manner. But the fact is that in the real world, as in the popular and media perception, they mainly reflect the political biases of those who appointed or elected them to office.

The politicisation of judicial positions has always been a fact of life in the US. But it takes an issue such as this to make people realise that simply saying "leave it to the courts to decide" is not necessarily going to satisfy the public. Eventually it will produce a result, but not an untainted one. Doubtless the Supreme Court will go to extra lengths to appear politically impartial. But even it cannot be seen as neutral given that appointments to the court are a lasting legacy of all presidents. Indeed, many liberals who have no enthusiasm for Gore are more worried about what Bush as president could do through future court appointments to reverse social decisions of the court than they are about his tax or foreign policies.

Given Hongkong's history of centralised colonial bureaucratic government, with scant separation of powers, the judiciary's independence has had to be judged by its performance rather than the mechanism of appointment. However, given that a supposedly self-governing Hongkong now has political processes in which the executive is, inevitably, involved there needs to be a more transparent mechanism for appointing judges. Certainly one would not want to see an appointments committee divided along political lines. But it would be comforting to see oversight by a broadly representative body consisting of people known to value judicial independence.

The notion of the independence of the judiciary from the executive is perhaps the most fundamental difference now between Hongkong and the mainland and needs better protection. The problems in the Philippines, Taiwan and Indonesia also focus primarily on division of powers between popularly elected presidents and the legislatures. In Manila, the president is supposedly being impeached for corruption. However the lawmakers have already admitted that the process is as much a political as a judicial one by ruling that to convict it is not necessary to achieve the same standard of proof beyond reasonable doubt required in a criminal action.

We can leave aside for now the gross hypocrisy whereby a bunch of senators, several notoriously corrupt and not a few of whom were beneficiaries of Marcos' pillage, seek to throw out an elected, albeit incompetent, president. But a system is clearly not working as intended if the president is made answerable to congress rather than directly to the electors.

The same is true in Taiwan where the allegations against recently elected president Chien Shui-bian are insigificant compared with the punishment of impeachment that many opposition legislators favour. The problem for Taiwan's fledgling democracy is that the Kuomintang has not yet learned to live with losing power - entirely the result of the division in its own ranks. And the political institutions have yet to learn to live with the fact that it is now - as in France - possible to have a president from one party while another party dominates the legislature. The French are moving to synchronize elections to reduce the likelihood of this recurring. However, to do so is to step further away from the US model of separation of powers.

In Indonesia, the president is chosen by the largely elected people's consultative assembly so in theory this body should be able to remove him. However a strong presidency has always been at the heart of the Indonesian constitution so it is certainly a departure to try to submit the president to regular review and the possibility of impeachment. Indonesia seems stuck between making the presidency directly elected by popular vote, and subjecting him to a legislature which wants to build up its own role.

There is an argument that Asia should abandon these strong directly elected presidencies which can lead either to autocracy or, alternatively, to long periods of incompetent government as seems possible in Estrada's Philippines, where presidents have a single six year term. The alternative is a parliamentary system, necessary in constitutional monarchies such as Japan and Thailand but found in places such as Germany, Singapore and Israel where presidents are figureheads Many Koreans favour a move to a parliamentary system and in theory Kim Dae Jung is supposed to be backing such a move -- though it seems unlikely that any president is going to push for a reduction in his own powers.

Thailand's parliamentary system gets low marks for stability and money often counts more than ideas or competence in decision-making. However, it has also proved successful in getting rid of incompetent prime ministers such as Chuan Leekpai's predecessor, Chavalit Yongchaiyudh. The Thais have been making some remarkable efforts at constitutional changes and mechanisms to reduce corruption and vote buying, increase party stability, raise the quality of legislators and force ruling party members to choose between their ministerial and legislative roles. The results are ar as yet uncertain but at least the issues are being addressed - and the political process is being closely monitored by a lively press and a host of NGOs.

These Asian situations all have in common a struggle to find a balance between stability, honest popular representation and executive accountability. Hongkong may think it can just muddle along with blurred lines of responsibility and accountability. The Basic Law which has basically sound principles. But is easily abused by the executive which faces little challenge from an emasculated and unrepresentative legislature and a judiciary whose future independence is uncertain. Constitutional events elsewhere make this an ideal moment for Hongkong to get down to serious discussion on what sort of flesh it now needs to put on the bare bones of the Basic Law. ends by Philip Bowring





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