Separation of powers is already a fact of life in Hong Kong

Michael Davis says the city already abides by this widely accepted principle, with all checks and balances intact, notwithstanding the claims of a senior Beijing official

PUBLISHED : Friday, 18 September, 2015, 11:24am
UPDATED : Friday, 18 September, 2015, 11:24am

Zhang Xiaoming , head of the central government's liaison office in Hong Kong, caused quite a stir when he proclaimed that the city's executive-led government does not have separation of powers and that the chief executive is superior to the other two branches of government. He claimed that having three branches of government - the executive, legislative and judiciary - with each checking and balancing the other, did not amount to separation of powers. He also doubted separation of powers could apply to a sub-national government.

One can speculate on what Zhang was attempting to achieve, but when it comes to his legal analysis, he is clearly confused. Zhang's claim that the Hong Kong system has never been characterised by separation of powers is simply false. His own recital of a dozen Basic Law provisions that afford oversight of one branch of the Hong Kong government over the others in a web of checks and balances belies such a claim.

Indeed, contrary to his statement, when you have the three branches of government and each checks and balances the other, then you have separation of powers. That is quite literally the definition of separation of power originating in the writings of Montesquieu in the classic The Spirit of the Laws.

Hong Kong has become somewhat used to hearing these over-the-top statements by mainland officials

The claim that separation of powers is only a concept applicable to sovereign national governments is likewise false. States or local governments within national systems routinely have separations of powers. Legislatures offer oversight through approval or not of government bills and budgets. Chief executives or presidents do the same through approval or veto of legislative bills and through a variety of other devices, as even described in Zhang's speech.

The independent courts offer oversight through constitutional judicial review of both legislation and executive acts. All these checks and balances unquestionably occur in Hong Kong.

Zhang should have considered Chief Justice Geoffrey Ma Tao-li's statement at the opening of the legal year in January last year, when he said: "The Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and in quite specific terms, the different roles of the three institutions."

The Hong Kong system of separation of powers has its flaws, with the Legislative Council often proving rather toothless. As Zhang aptly notes, Legco's power to introduce bills is limited to those that do not involve expenditure and have little impact on policy. Yet, as with the recent democratic reform bill, the legislature can block bills favoured by the government. Filibustering has also become commonplace.

Subject only to being overruled by the National People's Congress Standing Committee, the courts' role in checking both executive and legislative action has been more substantial, winning the courts the highest approval rating.

Zhang oddly asserts that because the Hong Kong system is executive-led, it is not subject to separation of powers. Parliamentary systems are often thought to have less substantial separation of powers because the government sits in parliament and the courts may be subject to parliamentary supremacy.

By contrast, presidential systems, where the executive is independent from the legislature and each of the three branches are independent of the other, are generally characterised by greater separation of powers. Hong Kong's executive-led system has therefore tended to bring the city more firmly into the orbit of separation of powers.

Hong Kong has become somewhat used to hearing these over-the-top statements by mainland officials. They often demand reading between the lines. Zhang's statements emphasising that Hong Kong is directly under the central government and that the chief executive is directly answerable to Beijing may be his only point. A chief executive who claims to "transcend" the law would surely engender outrage and lose public support.

Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights