HKP Lecture 5 - Institutional actor (1): The Executive PDF

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HKP Lecture 5 Institutional actor (1): The Executive Is the term “executive-led” still applicable to the present executive-legislative relations? (A) The Political Executives in HK  Headed by the Chief Executive (CE), 5 years term, not more than two consecutive terms. Accountable to CPG and citizen...

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HKP Lecture 5 Institutional actor (1): The Executive Is the term “executive-led” still applicable to the present executive-legislative relations? (A) The Political Executives in HK  Headed by the Chief Executive (CE), 5 years term, not more than two consecutive terms. Accountable to CPG and citizens in HK, He/ she is supported by:  (1) Principal officials (POs) o Only emerged in 2002 with the introduction of POAS – clearer distinction between executive and politicians  Bureaucratic polity – the senior officials are themselves senior civil servants (policy formulation + policy implementation  against the principle of “politics-administration dichotomy”) o From bureaucratic polity to the political appointment system o 3 senior secretaries (Chief Secretary for Administration, Financial Secretary, Secretary for Justice) o 12 bureau secretaries (policy formulation and supervision) o Assisted by undersecretaries 副局長 and political assistants o All politicians, come and go with CE  (2) The Executive Council (ExCo) o An organ for assisting the CE in policy making (Basic Law Article 54) o Composition of the ExCo: Appointed by the CE from among the Principal Officials, members of the legislature and public figures (Official and non-official members) o Operation: meeting presided over by the CE, Collective responsibility, confidentiality (minutes will not be accessible by the public) o Dissolve LegCo  consult ExCo  (3) CE’s Office  (4) Central Policy Unit (CPU) o Policy research, drafting Policy Address, opinion polls to collect public opinion Power and functions of the CE • Introduction of legislation • Cabinet formation and dismissal • Appointment of public officials and judges • Budgetary powers • Dismissal of the Legislative Council (Basic Law Articles 49,50,74) • CE can eventually remove the LegCo but LegCo cannot remove the CE by vote of no-confidence • External affairs • Pardon to criminals

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HKP Lecture 5 Institutional actor (1): The Executive Institutional controls of the CE • (1) Basic Law Article 45 • (2) The method of selection (Basic Law, Annex I): Selection through a committee • Nomination committee • (3) Non-partisan CE • The CE should not belong to any political parties (Section 31, Chief Executive Election Ordinance) • Local legislation, not provided in the Constitution • Winning candidate has to declare he in not a member of political party • Problem: Permanently deprived of stable legislative support (B) Types and features of executive-legislature relations (Lijphart, 1992) Parliamentary model Presidential model • Separation of powers • Fusion of power • The executive is dependent on the • Fixed term of office, cannot be forced to resign by the legislature confidence of the legislature (vote of • President: By popular election no confidence) • Prime minister: Selected by the • Members of the president’s cabinet are subordinates of the president legislature (appointed by the president) • Collective or collegial executives, • Veto power defend policy in the Legislature • PM exercise leadership over cabinet •

Relationship between the executive and the legislature: • Westminster model: Executive dominance (majoritarian electoral system and party discipline) • Executive backed up by legislature majority • Echo with the party line • Continental European model: Executive-legislature balance • Power-sharing in policy-making • Presidential and semi-presidential systems: Executive dominance/ executive-legislative balance • France: cohabitation – 2 different parties in the executive • Executive-led system of HK: More accurately described as a kind of parliamentary or presidential system? • Before 1985: overlapping membership between the Executive and Legislature, the Governor himself is the Chairman of the LegCo who can constitute the LegCo

Electoral system (majoritarian/ Proportionate representation system) Strength of president’s party (C) The executive-led model in HK 2

HKP Lecture 5 Institutional actor (1): The Executive    

The dominant position held by the executive in the governance of Hong Kong, particularly in its relationship vis-à-vis the legislature Derived from the political system and institutional design of Hong Kong under British colonial rule from 1842 to 1997 A strong executive-led system in colonial Hong Kong, especially before 1985 with officials and appointed members Capacity of the executive to control the composition of the legislature and the dominance of the executive in the process of decision making (the executive is the major source of policy and the legislature is reactive)

Executive-led as a colonial legacy • Deng Xiaoping: • Not looking for a system of strong check and balance • Institutional continuity • As a strategy of political supervision (concentration of power and the executive as the major source of policy) • But unfeasible to adapt the whole colonial system, the executive-led system has to be modified Post-handover: New Executive-Legislature Relations • The CE is no longer the president of the LegCo • The LegCo is to be constituted by election (Basic Law, Article 68), which means separated formation of the executive and the legislature • All members of LegCo are returned by elections instead of being chosen by the Executive • Emergence of a new executive-legislature relationship • Can the term “executive-led” capture the new power relations between the two? Constitutional Advantages to the Executive under the Basic Law In principle, the Basic Law is designed to have an executive-led government 1. Article 74: Constraints on the private bills and the executive power to veto  Cannot be related to public expenditure, government policy, political structure (operation and public fundings of the government)  Written consent of CE is required 2. Annex II: Voting procedures of the LegCo (Lawmakers are substantially restrained from proactively institutionalizing their agendas into legislative initiatives/ The executive got the initiative)  Minority veto is possible 3. Article 50: Dissolution of the LegCo  Triumph by the CE 4. Exclusive power of political appointment  CE needs not consult the Legislature

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HKP Lecture 5 Institutional actor (1): The Executive 5. Functional constituency election: De-facto alliance between the government and the pro-establishment camp (yet it is subject to strategic contingency rather than institutional default)  Tend to ally with the government Executive-led in practice: Legislative success rate (Brian C.H. Fong, 2014)

Only about half of govt’s policy is endorsed by the LegCo, around 1/3 is shelved or postponed  The govt is having difficulties in bring or actualizing its policies Executive-led in practice: The Asian Games Fiasco (2011) • Public opinion: around 57% disapprove such proposal because it was too expensive, organising “megaevents” is disarticulated from the needs of local community • The Financial Committee of the LegCo rejected a funding application of 6 billion proposed by the government to host the Asian Games in 2023 • DAB’s disapproval – betrayal of pro-establishment camp against the govt • 40-to-14 voting margin against the government proposal • Donald Tsang, “We have ‘fooled’ during the process, with our back being probed with holes, just as when we saw our athletes continued to race even after falling to the ground from her bicycle….” Executive-led in practice: Restructuring of the Government Secretariat (2012) • CY Leung’s proposal to increase the number of policy bureaus from 12 to 14 • Deputies for Chief Secretary and Financial Secretary • Not welcomed at large as it expands the unpopular political appointment system and incurs extra government expenditure • CY Leung moved a motion requesting that the LegCo pass his restructuring plan ahead of other outstanding bills • The plan was narrowly defeated (opposition by Chim Pui-chung and Tse Wai-chun, abstained vote and absence of several pro-government legislators) Executive-led in practice: Three strategic landfills (2013)

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Three strategic landfills in Tuen Mun, Ta Kwu Ling and Tseung Kwan O Strong opposition from pro-government parties; the stance of the DAB was vague Tseung Kwan O: Clear opposition from the DAB in mid-June Deferring scrutiny of the proposal in Tuen Mun and Ta Kwu Ling Ended in failure

Diagnosis (1): Designed institutional weaknesses • Governor as the major patron (before 1997) replaced by a pro-China coalition • Party-less administration of the CE and a legislature increasingly dominated by party politics (Anthony Cheung, 2002) • Does not command a stable number of votes in the LegCo • Beijing does not want to have a robust party politics  designed institutional weakness • Working relationship between the government and the pro-establishment camp: Strategic contingency rather than ideological bulwark (Chan, 2013) • Lack of real power sharing and initiatives in policy-making (the appointment of independents to fill most of the ministerial posts) (Brian C.H. Fong, 2014) • Pro-government legislators share the kind of humiliation when citizens scold the government and pro-China camp; but they cannot share the honour •  Institutional disconnection, no institutional guarantee that the government proposals can be passed Diagnosis (2): Performance Shortfall • Underlying factors: • “The hatred of the oppressors was enough to mobilize toward liberation but was inadequate for the management of an independent state” (Masao Miyoshi, 1993: 6) • Lack good governing skills and experience • “Newly-independent nation (post-colonial states) can find itself administered by an indigenous middle-class that uses its privileged education and position cheerfully to replicate the colonial administration of the nation for its own financial profit” (John Mcleod, 2000: 89) • Hybrid regime, too much reliance on business sector • Political appointment shortly after the handover resembled that before the handover, all the business tycoons • The problem of dual accountability (Kit Poon, 2007) • Accountable to CPG and HK people, sometimes interests are incompatible • The lack of procedural legitimacy • Executive does not have legitmacy, but has power 5

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• Legislative has legitimacy but does not have power Problems with the Chief Executives’ governing strategies

Executive-driven but not executive-led? (P.K. Li, 2012) • The separated formation of the executive and the legislature and the possible presence of an opposition majority in the legislature • Li proposed a different model to describe the executive-legislature relations (a) Whether the legislature is constituted by the executive (b) Whether the governing coalition or the opposition forms the majority • Criterion (a): Defined by the constitution/ electoral system • Criterion (b): Driven by politics of the day/ situational factors – elector’s choice, result is uncertain and contingent • Transformed from executive-led to executive-driven after the handover • Even though the executive has advantage in policy formulation, whether the legislature support the bills or not depends on situational factors – uncertainty • Still applicable nowadays? (D) Challenge: Are these frameworks outdated? • To examine the relationship between the institutions by looking outside the institutions • “Executive-led” means leadership or domination of the executive over the legislature  the two still works in partnership, though the executive has the upper hand and they may fight with each other • How shall we describe the situation in which the executive attempts to bypass, marginalize and even oppress the legislature? Tactics employed to overrule the LegCo • (1) To bypass the LegCo • C.f. Proclamation/ Executive order in US: bypass the Legislature • Example: Innovation and Technology Bureau (ITB) • Background: • The bureau was initially introduced as part of CY Leung’s 2012 election manifesto, but due to opposition, it did not receive the green light to proceed until last year • Its setting up is facing the last hurdle of gaining funding approval from the Finance Committee • Try to prioritise this item and regroup other items • Verbal abuse from CY Leung: “If Legco members, and these are the opposition members of Legco, do not give up filibustering, we’ll probably lose ITB, definitely for a few months…it will be sad, very sad for Hong Kong.” • “Mr Yang will advise me and the Government on the development strategy for innovation and technology, with a focus on how Hong 6

HKP Lecture 5 Institutional actor (1): The Executive

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Kong can make the best use of our advantages of ‘One Country’ and ‘Two Systems’ and how we can strengthen co-ordination between the Government, industry, academia and research sectors” (2/3/2015) “Advisor” on Innovation and Technology • Nicholas W.H. Yeung: Newly appointed advisor to the Chief Executive on Innovation and Technology, and Non-official Member of the Executive Council • Non-salaried advisor, not accountable to the LegCo • Serves until the establishment of the ITB • Any problems with appointing a non-salaried advisor who is not accountable to the LegCo? • Ambiguity of the appointment and policy formulation

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(2) To withdraw bills from the LegCo Example: Paternal leave (2014) • Three-day paternity leave with 80 percent pay • The pan-democrats moved an amendment to increase the leave to seven days with pay • Secretary for Labour and Welfare Matthew Cheung had warned before the vote that if the seven-day paternity leave was approved, the government would be forced to withdraw the bill. • Take it or leave it • “Increasing the number of paternity paid leave days to seven, changing it to fully-paid leave, or forbidding employers from dismissing employees who are on paternity leave, will seriously undermine the cooperation between the labor and business sectors, which has been well-established through negotiations,” he said. • Labour Party lawmaker Fernando Cheung Chiu-hung said: “How does the Legco work if this [threatening action] continues?”

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(3) To bypass the rules in the LegCo Example: Ng Leung-sing in the North East New Territories Development Plan The government’s plan to demolish a series of villages in Kwu Tung North and Fanling North to make way for new development areas. This plan, they claim, will provide much needed housing for HK’s growing population.

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(4) Verbal threats/ attempts to denounce the LegCo Example: The constitutional reform The NPSCS’s framework on constitutional reform in 2017 (August, 2014) Second round of public consultation Blamed the LegCo for ruining the “collective interest” of HK (e.g. filibuster, the pro-democratic camp’s attempt to boycott the government’s consultation) Shifted the responsibility of governance problems to the LegCo 梁指若政改方案否決非政府責任

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HKP Lecture 5 Institutional actor (1): The Executive 行政長官梁振英晚上出席施政報告論壇時指，若政改方案被否決，並非政府責 任，又指沒考慮過是否解散立法會，以再提交政改方案給新的立法會表決。 •

(5) To rely on Beijing: counter-social movements

Implications: • Let bygones be bygones? Executive-led seems to function well before 1997: • Conditions of success: • Strong leadership and political experience • An obedient bureaucracy • A cooperative/ submissive legislature • Dampened political participation, a relatively content public • How to improve the performance of the executive? • A partisan Chief Executive? • Methods of policy consultation? • Improvements in governing strategies?

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