Illustration: Craig Stephens
by Teresa Cheng
by Teresa Cheng

Why separation of powers has no place in Hong Kong’s political structure

  • The Basic Law lays down an executive-led system, while providing for the division of powers among the executive, judiciary and legislature
  • While court judgments have referred to ‘separation of powers’, they have not addressed the concept in detail and have also affirmed the executive-led system

The desperate attempt to try to latch on to a phrase or label without properly understanding what it entails is pathetic. The suggestion that the concept of “separation of powers” is a given in the constitutional order of the Hong Kong Special Administrative Region is an oversimplification.

One must not lose sight of the fact that we are not looking at something in the abstract but at the constitutional structure of the Hong Kong SAR. An analysis of the constitutional order must not be based on what anyone has said or desired, but what is set out in the Chinese constitution and the Basic Law.

The concept of “separation of powers” has attracted multiple interpretations, expositions and understandings internationally by scholars, judges and academics. Very briefly, the French philosopher Montesquieu’s theory involved the separation of the executive, legislative and judicial powers of government, and the balancing of the unequal power among them. Montesquieu viewed judges as “no more than the mouth that pronounces the words of the law.”

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In contrast, the English philosopher John Locke’s exposition differentiates between legislative power, executive power and what he terms “federative” power, which effectively are powers relating to foreign affairs, with no emphasis on the role of the judiciary. The English political theorist M.J.C. Vile’s “pure doctrine” separated the legislative, executive and judicial branches strictly, confining each branch to exercising its own function without encroaching upon the functions of others.

The United States Constitution aims to provide for separation of the executive, legislative and judicial branches of government, each with separate institutions and personnel. Yet, the president nominates Supreme Court judges. Potential Supreme Court judges have to attend nomination hearings before the US Senate Judiciary Committee to be questioned and to provide testimony before being confirmed by the US Senate.
The building housing the Court of Final Appeal in Central, Hong Kong. The French philosopher Montesquieu viewed judges as “no more than the mouth that pronounces the words of the law”. Photo: EPA-EFE

In the United Kingdom, the concept of parliamentary sovereignty, where Parliament is the supreme legal authority, means that it cannot be overruled by the courts. There is also no clear separation between the executive and legislature, and indeed up until 2005, between the legislature and the judiciary either.

In discussing the doctrine of separation of powers, it is important to bear in mind two points. First, the political structure of a state is entirely a matter within the sovereign right of that state. Secondly, the People’s Republic of China is a unitary state and all power comes from the central authorities. The people’s congress system is China’s political system.

The Hong Kong SAR was established by a decision of the National People’s Congress under Article 31 of the constitution. The Basic Law was promulgated by the NPC in 1990 and has been applicable to the HKSAR since 1997 when China resumed the exercise of sovereignty over Hong Kong. The political structure of the HKSAR is set out in Chapter IV of the Basic Law and it lays down an executive-led system headed by the chief executive, who is the head of the HKSAR and the HKSAR government.


What does ‘one country, two systems’ mean?

What does ‘one country, two systems’ mean?

The Basic Law further provides for the division of powers and functions among the three branches: the executive authorities, the legislature and the judiciary. The powers and functions of the executive authorities and legislature are set out in, inter alia, Articles 62 and 73 respectively. By Articles 80 and 82, the judiciary is authorised to exercise judicial power including that of final adjudication.

The three branches are interrelated with delegated powers and functions to discharge their constitutional duties under the executive-led system. They complement each other, with the common goal of “[u]pholding national unity and territorial integrity” and “maintaining the prosperity and stability of Hong Kong”. Their powers emanate from the central authorities, and their roles and duties are constitutionally designated under the Basic Law.

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Hong Kong courts have referred to the concept of “separation of powers” from time to time. A proper reading of the judgments would reveal that the courts used the term to describe the division of labour or the different responsibilities of various institutions under the Basic Law without condescending to any detailed discussion of the concept.

For example, the Court of Final Appeal referred to the doctrine of “separation of powers” in Lau Cheong v HKSAR, a case concerning, inter alia, the constitutional validity of life imprisonment as the mandatory penalty for murder, and; in Leung Kwok Hung v President of the Legislative Council (No 1), a case concerning filibustering. The Appeal Committee also referred to the doctrine in Sixtus Leung Chung Hang and Yau Wai Ching v Chief Executive of HKSAR, a case concerning the validity of the applicants’ Legislative Council oaths.

Yau Wai-ching (left) and Sixtus Leung arrive at the Court of Final Appeal in Central on August 25, 2017. The court rejected their final bid to be reinstated to the Legislative Council. Photo: Sam Tsang

On none of these occasions did the Court of Final Appeal or the Appeal Committee attempt to embark on any in-depth discussion of the doctrine, such as its origin and its applicability in Hong Kong before and after July 1, 1997, probably because the matters before the court could be disposed of without such discussion.

The doctrine was also referred to by Mr Justice Andrew Cheung Kui-nung (as he then was) in Luk Ka Cheung v The Market Misconduct Tribunal and Another. Citing “The Place of Comparative Law in Developing the Jurisprudence on the Rule of Law and Human Rights in Hong Kong”, an article by Sir Anthony Mason, the former chief justice of Australia, Mr Justice Cheung cautioned that the doctrine must be treated with great care in its application in Hong Kong.

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Our courts have also affirmed in different cases that Hong Kong has an executive-led government. An example can be seen in the case of Leung Kwok Hung v The President of the Legislative Council and Another, where Mr Justice Michael Hartmann (as he then was) in the Court of First Instance acknowledged that the HKSAR has an executive-led government, and while the term “separation of powers” was used, Mr Justice Hartmann highlighted that the Basic Law “makes it evident that the executive, the administration and the legislature are each to perform their constitutionally designated roles in a coordinated and cooperative manner for the good governance of Hong Kong.”

More recently, the Court of Appeal affirmed in the case of Kwok Wing Hang and Others v Chief Executive in Council and Another (No 5) that, apart from the division of responsibilities among different branches of political structure, the Basic Law envisages an executive-led system in the administration of Hong Kong.

Chief Executive Carrie Lam (on screen) attends a question-and-answer session at the Legislative Council in Tamar, Admiralty, on January 16. Photo: Sam Tsang

The doctrine of separation of powers is commonly used in the context of the political structures of sovereign states. This doctrine has no place in the political structure of Hong Kong. When the term “separation of powers” is loosely used in Hong Kong, it is prone to contribute to misinterpretation or misunderstanding of the constitutional order of the Hong Kong SAR.

One should not just refer to a label, but should objectively review the substance of the Basic Law in ascertaining what the political structure of Hong Kong entails – an executive-led system, with the executive authorities, the legislature and the judiciary performing constitutionally designated roles with a division of work and complementing each other.

Teresa Cheng, SC, is Hong Kong’s secretary for justice