Topics include
- Concept, element and aims of separation of powers
- Separation of powers pre-1997 and post-1997
- Relevant Basic Law articles on the Chief Executive and Legislative Council along with context and commentary from lecture
- Executive-legislative checks
6. SEPARATION OF POWERS
1. CONCEPT, ELEMENTS AND AIMS
Traditional v Articulated by French theorist Montesquieu in 18th Century
Doctrine v Separation of the responsibilities of the three branches – legislature, executive and judiciary – each
acting as a check and balance against the others
v Ultimate aim: prevention of tyranny. No one branch should become too powerful
Modern v Modern view more nuanced
View v More clearly defined separation written into the constitution.
Ø In Britain, separation between Parliament and the Crown evolved over centuries and is
governed by custom – not easily replicable
v Accountability: mechanisms to monitor government officials.
v Political Participation: The “people” are the best check against an authoritarian government
v Additional checks and balances against the executive and legislature in particular
v Additional checks and balances against the executive
v This includes: fixed or secure tenured of the judiciary (very important – one branch that isn’t elected
by the people at all; independent institution that checks them; not scared of reprisal – best way to
lose it is having people scared of losing their job), constitution court (CFA in Hong Kong) (complicated
in Hong Kong as we have the NPCSC), electoral system (voting method, watchdog, political parties,
campaign finance), upper house in the legislature, independent public service, independent
“watchdog” institutions e.g. ombudsman, the right to information, the free press.
2. SEPARATION OF POWERS
A. Separation of Powers Pre-1997
v Overarching powers of Governor, including over legislature
v Development of legislative powers before Handover – greater separation of powers, but still executive-led system
v Independent judiciary, but deferential to government
v Independent Commission against Corruption (1974)
B. Separation of Powers Post-1997
v Mainland Authorities have consistently held the view that the “Western” conception of separation of powers does
not apply in the HKSAR.
Ø Deng Xiaoping’s Statement to Basic law Committee in 1987: “Hong Kong has not adopted the British or the
American systems and made it past one-and-a-half centuries, it is inappropriate to fully adopt their system at
this moment.”
Ø China Liaison Office in 2020: HKSAAR has executive-led system in which “the division of the three powers,
executive-led, judicial independence, the executive reports to the central government on behalf of the
HKSAR.”
v Hong Kong government has recently endorsed the Mainland view.
Ø CE Carrie Lam: Separation of Powers based on “misunderstandings” on how HKSAR is governed. Hong Kong
has an “executive-led system” with a “division of labour” between the three branches.
Ø Secretary of Justice Teresa Cheng: There is “division of work” and three branches ‘complement each other
with a view to upholding national unity and territorial integrity, maintaining the prosperity and stability of
Hong Kong”
v Judiciary has a consistently reaffirmed the principle of SOP as a common law principle and part of the Basic Law
Ø CFA in Leung Kwok Hung (2014): Referring to SOOP as “a common law doctrine which, in the case of Hong
Kong, is reinforced by the constitutional separation of powers provided for by the Basic Law”
Ø Chief Justice Ma (2014): “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
institution.”
Ø Chief Justice Li (2001): “Judicial independence is the most basic feature in the common law system as
implemented in Hong Kong and lies at the heart of the separation of powers among the executive, the
legislative, and the judicial branches, providing checks and balances against one another.
B1. Chief Executive
45(1) The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through
consultations held locally and be appointed by the Central People's Government.
45(2) The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong
Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The
Chloe T 23
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