IntroductionThe protection of property rights in Hong Kong Special Administrative Region is always a large and important topic. This article attempts to discuss protection of property right in the perspective of separation of powers under Basic Law. It will look at how Basic Law has entrenched the doctrine of separation of powers in protecting property rights.
The first part of this article involves in some theories of property right and separation of powers, as well as their relationship. Then the article will look at how the doctrine of separation of powers is adopted in Basic Law. At last, the implication of the adoption of separation of powers in the area of protecting property right will be considered.
Property right and separation of powers
Property right is the right “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”. And in modern world, the property right always include the following thirteen elements: the right to possess; the right to use; the right to manage; the right to the income; the right to consume or destroy; the right to modify; the right o alienate: the right to transmit; the right to security; the absence of term; the prohibition of harmful use; liability to execution and residuary rules.
The importance of property right can never be over stresses. In the West, the right to property like the right to life and liberty, is regarded as the fundamental right of human beings, which is also tightly related to human dignity, identity and self-respect. Blackstone views property as providing its owner with freedom over resources, and he regards material freedom as the basis for other freedoms, “the guardian of every other right.”
In defending private property, there famous theorists-John Locke, Thomas Hobbes and Adam Smith all declare that the preservation of private property is the raison d’etre of government. Meanwhile, the property right is associated with the development of capitalism in the West: in “bourgeois revolutions” of late eighteenth century, the right to private property was said to be natural right of human and enshrined in constitutional instruments.