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Recently, the government filed a judicial review and an injunction to the court in hope of barring LegCo members from re-taking their oaths. This unprecedented move has stirred up heated debates on the legal issue of whether there is a separation of power in Hong Kong.
But before we decide on this matter, we must first give a meaning to the notion of ‘Separation of Powers’. There is no dispute that the ‘Powers’ consists of three institutions or branches, namely the legislature, judiciary and executive. I believe that as long as each of the three branches checks and balances the other, then there is separation of powers. (This is quite the literal definition as embodied in the classic The Spirit of the Laws.) Hence, if one advocates that there is no separation of powers, he or she must prove that the branches are capable of intervening and influencing the operation of one another without limitations or checks and balances to their powers. This is however, fortunately, not the case in Hong Kong, and this is also the reason why I adhere to the beliefs that separation of powers exists, and is a fundamental concept of the constitution of Hong Kong. Such conviction is echoed by former and present Chief Justice Andrew Li and Geoffrey Ma.
I would like to support such a belief with two reasons. First, Chapter IV of the Hong Kong Basic Law separately details the powers of each of the three branches. To this, pro-Beijing heavyweight Rita Fan Hsu Lai-tai proclaims that ‘the separation of powers is neither implemented in Hong Kong nor stipulated by the Basic Law as it is not written in the territory’s mini-constitution’. I do not adhere to her wordplay as the principles of separation of Powers are underpinned in the Basic Law. There is a clear check-and-balance mechanism as exemplified by the facts that lawmakers can impeach the chief executive, the chief executive has a say over judges’ appointments, and the courts can quash decisions made by the executive or legislative branches. Second, separation of powers is an underlying principle to the Common law system, and is affirmed by various court cases in Hong Kong over the years. The 2014 Leung Kwok Hung v President of the Legislative Council case, and the 2007 judicial review all point to a crystal-clear concept that separation of powers is enshrined by the Basic Law, such that the three branches can ‘perform their constitutionally designated roles in a co-ordinated and co-operative manner for the good governance of Hong Kong.’
A lot of people may hold dissenting views to the above, and their arguments are subsequently listed below. First of all, some argue that the overlaps of three branches is a clear indication that there is no separation of powers. Examples include permitting legislators to sit on the Executive Council (Article 55) and granting the Chief Executive sweeping powers over the introduction (Article 74) and promulgation of legislation (Article 49). In 1987, Deng Xiaoping also suggested that ‘Complete separation of powers would contradict the central government's jurisdiction over Hong Kong’. I would like to respond with Gitting’s idea that separation of powers has never been a complete separation of the executive, legislature and judiciary. The whole concept of check-and-balance indeed entails and demands some degree of overlap between the executive, legislature and judiciary. We should discern ‘separation of powers’ as a ‘continuum’ that ‘embraces separation of powers to varying extents, and can be placed at different places along this continuum based on the degree to which they do so.’
Secondly, some suggest that Basic Law only safeguards judicial independence but not separation of powers. To this I would like to counter-argue with the statement made by Mr. Alan Wong of the Progressive Lawyers Group, ‘But if there is no separation of powers, how can there be judicial independence?’
The third dissenting argument to which a number of public figures adhere is that despite having checks and balance between executive and legislative branches, what is being implemented in Hong Kong is a executive-led political system. This is different from true separation of powers although it has a ‘separation of powers shadow.’ (Zhang Xiaoming echoed to this by proclaiming that Hong Kong is an ‘executive-led government with the Chief Executive enjoying a special legal status that transcends the executive, legislature and judiciary”.) However, even if the political system of Hong Kong is described to be ‘executive-led’, it does not mean that separation of powers does not prevail. Separation of powers in essence differs from an equalisation of powers of each of the three branches. Giving the example of United Kingdom, some may say that parliamentary supremacy gives rise to a more legislative/Parliament-led system, but none will advocate that there is no separation of powers in the UK. Compared to UK’s parliamentary supremacy which allows government to sit in the Parliament, the near-presidential system or the so-called ‘executive-led system’ in Hong Kong, in fact tends to bring the city more firmly into the orbit of separation of powers.
In light of all the above, I would like to reiterate my conviction that there is separation of powers in Hong Kong, and such a constitutional principle underscored in the Basic Law is the crux to effective governance, stability and liberty in our city.