LettersHong Kong textbooks now get the balance right on separation of powers
- True separation of powers goes beyond branches of government performing different functions. It implies equality of constitutional power
- Hong Kong not only lacks this arrangement, but did not have it during the colonial period either
The writer has an oversimplified understanding of the term, taking the fact that the judicial, legislative and executive branches are independent departments to be proof that there has always been a separation of powers in Hong Kong. Rather, separation of powers represents a constitutional balance of power.
As the Encyclopaedia Britannica puts it, “the sanction of all three branches is required for the making, executing, and administering of laws.” Thus, the separation of powers entails not only the literal division of bureaus, but also the independence of powers and equality of constitutional power.
Contrary to the writer’s belief, this kind of balance has never existed in Hong Kong. Before the handover, the British-appointed governor could nominate numerous members to the Legislative Council. While this arrangement favoured the passing of laws, it significantly hindered the legislature’s power to regulate the government.
Even after the establishment of the Hong Kong special administrative region, the executive still has the upper hand, given its power to draft laws and policies, as senior Beijing adviser Lau Siu-kai has pointed out. Thus, whereas the letter writer asserted that Hong Kong has “always been run on the ‘separation of powers’ model”, this has never been the case.