Critically Evaluate the Extent the Doctrine of the Separation of Powers Underpin the Basic Law

According to Wesley Smith, “The doctrine of separation of powers is a general technique for limiting the ability of government officials to wield excessive powers to the detriment of citizens’ rights. The three types of power (the legislative, executive and judicial) should be distributed amongst three distinct branches of government; no branch should exercise more than one variety of function, and no person should belong to more than one branch. Each branch is balanced by the others, some kind of parity is established between them. ”[1]

This paper serves to evaluate the extent separation of powers underpin the Basic Law. It will elucidate Hong Kong’s political structure and the distribution of powers among the three Government branches. It will examine how they interact and the checks & balance as enshrines in the Basic Law. EXECUTIVE AUTHORITIES & LEGISLATURE A. Basic Structure (Basic Law Chapter IV) Government of HKSAR shall be the executive authorities of the Region (Article59). The head of the Government and HKSAR shall be the Chief Executive (CE), accountable to CPG and HKSAR (Article43, 60).

Executive Council (ExCo) assists CE in policy-making (Article 54). CE presides over the ExCo and he shall consult it on nearly all matters, although not obliged to follow the advices (Article 56). Legislative Council (LegCo) shall be the legislature (Article 66). B. Political Accountability The Government is accountable to LegCo (Article 64). LegCo can scrutinize the performance of government in the following areas: 1. Law Enactment CE consults ExCo before introducing bills (Article 56). Government drafts and introduces bills, motions and subordinates legislation (Article 62(5)).

LegCo enacts, amends or repeals laws (Article 73(1)). CE signs bills passed by LegCo and promulgates laws (Article 48(3)). Government implements the law (Article 64). On one hand, power for LegCo to introduce bills is limited as CE’s consent is needed for introducing bills relating to Government policies (Article 74); and all bills take effect only if signed and promulgated by the CE (Article 76). On the other hand, all bills do require the support of a majority of LegCo members to become law.

Once a bill is passed, CE may refuse to sign it but if LegCo passed it again with a two-thirds majority, CE must sign (Article 49). 2. Budgets and Final Accounts Government draws up and introduces budgets and final accounts (Article 62(4)). LegCo examines and approves budget (Article73(2)). CE signs budgets passed by the LegCo and report to the CPG for final record (Article 48(3)). 3. Taxation & Public Expenditure Government shall obtain approval from the LegCo for taxation and public expenditure (Article 64). LegCo approves taxation and public expenditure (Article 73(3)). 4. Policy Address.

Government presents regular policy addresses to LegCo and answers questions raised by its members (Article 64). LegCo receives and debates the policy addresses of the CE (Article 73(4)). Check & Balance If CE refuses to sign a bill passed by the LegCo for the second time or LegCo refuses to pass a budget or any other important bills, CE can dissolve LegCo (Article 50). CE must resign when the new LegCo insists on passing the original bill in dispute with a two-thirds majority and CE still refuses to sign or the new LegCo still refuses to pass the original bill in dispute (Article 52).

Note that government bills need only a simple majority vote to pass in LegCo, whereas private bills need majority votes from both the functional constituency and geographical constituency (Annex II). It is easier for a government bill to be passed than a private bill. Also, it is very difficult to obtain a two-thirds majority vote. With this voting system, private bills are difficult to pass in the LegCo and government bills rarely fails in the LegCo. Therefore, it is not likely that Article 50 & 52 would function and the role of LegCo to scrutinize Government is weak.

C. Other Checks & Balances Power to Summon LegCo may summon persons concerned to testify or give evidence (Article 73(10)). However, CE can decide, in the light of security and vital public interests, whether government officials or other personnel in charge of government affairs should testify or give evidence before the LegCo or its committees (Article 48(11)). Note that the definition of “public interest” is broad and CE enjoys a wide discretion. Also, under this provision, it does not provide whether CE can refuse to attend a LegCo hearing on the same ground.

Impeachment of the CE LegCo can impeach the CE (Article 73(9)). However, two-thirds majority must be attained and the ultimate decision rests on the CPG. JUDICIARY A. Structure The courts of the HKSAR at all levels shall be the judiciary, exercising the judicial power of the Region (Article 80). HKSAR enjoys independent judicial power, including that of final adjudication (Article 2, 19). Courts of the HKSAR shall exercise judicial power independently, free from any interference.

Members of the judiciary shall be immune from legal action in the performance of their judicial functions (Article 85). Save for CE has a residual prerogative power in granting pardons and commuting penalties (Article 48(12)), both Executive and Legislature cannot be involved in the judicial process. The judicial system previously practised shall be maintained except for the establishment of the Court of Final Appeal (CFA) (Article 81). CFA has final adjudicating power and may invite judges from other common law jurisdictions to sit on it (Article 82).

Courts may refer to precedents of other common law jurisdictions (Article 84). B. Checks & Balances 1. Power of Judicial Review Common law system is preserved (Article 8). Naturally, Courts enjoy power of judicial review. Hong Kong residents have rights to review executive acts in the courts (Article 35). Courts can interpret provisions of the Basic Law within the limits of its autonomy (Article 158). Hong Kong Courts recognized the doctrine of separation of powers underpin the Basic Law and have safeguarded it in numerous cases[2].

They have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. For example, in Leung Kwok Hung v President of Legislative Council of HKSAR[3], CFA affirmed a procedural rule of LegCo which prevent private members from introducing amendment with a charging nature to the bills and ruled that it does not contravene the Basic Law. However, regards have to be given to the presence of a higher power – the NPCSC, which has the ultimate authority for interpretation of the Basic Law (Article 158). 2. Appointment & Dismissal of Judicial Officers

Judges and judicial officers are appointed/ removed by the Chief Executive on the recommendation of an independent commission / tribunal (Article 88, 89). Appointment and removal of judges of CFA and Chief Judge of the High Court must be endorsed by the Legislature (Article 73(7)). CONCLUSION Separation of powers does underpin the Basic Law. However, most of the checks on the Executive by the Legislature are difficult to put into effect. The Basic Law has created a strong executive government and a weak legislature[4]. To actually realize the doctrine of separation of power, the Judiciary carries a much heavier burden.

We may also give regards to the NPCSC has the ultimate power on interpreting the Basic Law and the presence of a higher power, the CPG, in which the CE is accountable. Bibliography Textbooks/journal articles Dobinson, Ian and Roebuck, Derek Introduction to Law in the Hong Kong SAR, Sweet & Maxwell, 2001 Dr Leung, Priscilla Mei-fun The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law, LexisNexis, 2007 Ghai, Yash ‘The Political and Administrative System’ in Ghai, Yash Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, Hong Kong University Press 1999, Ch 7.

Sir Mason, Anthony “The Role of the Common Law in Hong Kong”, The Common Law Lecture Series 2005 The University of Hong Kong 2006 Wesley-Smith, Peter An Introduction to the Hong Kong Legal System, Oxford University Press 1998 Wesley-Smith, Peter ‘The Hong Kong Constitutional System: The Separation of Powers, Executive-Led Government, and Political Accountability’ in Chan, Johannes and Harris, Lison (eds) Hong Kong’s Constitutional Debates, Hong Kong Law Journal Limited 2005, Ch 1 Cases Leung Kwok Hung v President of Legislative Council of HKSAR [2007] 1 HKLRD 387.

Yau Kwong Man & Another v Secretary for Security [2002] 3 HKC 457 ----------------------- [1] Wesley-Smith, Peter, An Introduction to the Hong Kong Legal System, Oxford University Press 1998, 24 [2] ie: Yau Kwong Man & Another v Secretary for Security [2002] 3 HKC 457 The Court held that judicial power is reserved for judges only. [3] [2007] 1 HKLRD 387 [4] Sir Anthony Mason, “The Role of the Common Law in Hong Kong”, The Common Law Lecture Series 2005 The University of Hong Kong 2006, 20.

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