There have been numerous attempts by both local and foreign entities to misrepresent the political structure of Hong Kong in the past 23 years, and “separation of powers” is no doubt one of the most repeated of them all. Suffice to say, the tireless claims of “separation of powers” in Hong Kong are, in many cases, aimed at changing the constitutional status of the special administrative region by obliterating its executive-led governing system anchored by the Basic Law of the Hong Kong Special Administrative Region, but they have neither the legal grounds nor historical precedence to make sense.
The governing system under British rule before the 1997 handover, as established under the Hong Kong Letters Patent and Hong Kong Royal Instructions, was anything but one of “separation of powers”. Neither is the system established under the Basic Law after China resumed the exercise of sovereignty over the city.
Both the governing models before and after reunification are executive-led. The only difference between the two is that power was centralized in the executive branch ... whereas the modified executive-led system adopted after reunification gives more emphasis on division of labor (functions)... as well as on the mechanism of checks and balances
The truth is, both the governing models before and after reunification are executive-led. The only difference between the two is that power was centralized in the executive branch — specifically in the hands of the governors — before 1997, whereas the modified executive-led system adopted after reunification gives more emphasis on division of labor (functions) among the executive, legislature and judiciary, as well as on the mechanism of checks and balances.
Under British rule, there were no such things as checks and balances: The governors, who were all appointed by the British Crown instead of democratically elected, controlled all the powers except that of final adjudication, which belonged to the Judicial Committee of the Privy Council in London; there was no genuine local legislature; and all court judges were handpicked by the governors or dispatched by the British judiciary in London, not to mention the fact that Hong Kong never had the power of final adjudication under 155 years of British rule. The British Crown and government never bothered to reduce the powers of the governors — picked by the prime minister and appointed by the British monarch — to show deference to the concept of “separation of powers”.
While the governing model adopted after reunification gives consideration to the need for division of labor as well as for the mechanism of checks and balances, it in no way fits into the definition of “separation of powers” as described by French philosopher Charles-Louis de Secondat, creator of the concept.
Since it became a special administrative region of the People’s Republic of China, Hong Kong has been governed by an executive-led political institution. The exact term “executive-led” can be found in Annex III of the Basic Law, and the provisions regarding the roles and responsibilities of the executive, legislative and judiciary bodies and their officers, including their relations, more than cement the concept of executive-led governance.
According to the Basic Law, the chief executive is the head of the HKSAR and its government, which is why the CE is accountable to the people of Hong Kong as well as to the Central People’s Government. The executive branch has the right of legislative initiative; bills initiated by the executive branch take priority on the agenda of the Legislative Council, reflecting the priority the executive branch enjoys over members of LegCo, whose bills need to undergo more procedures and conform to certain restrictions. According to Article 74 of the Basic Law, lawmakers cannot introduce bills relating to public expenditure, political structure or the operation of the government; they can introduce bills relating to government policies only after securing the written consent of the chief executive. The executive branch also imposes checks and supervision on the judiciary. The CE has the authority to appoint and remove court judges in accordance with legal procedures.
“Separation of powers” was never in the mind of late State leader Deng Xiaoping, architect of the “one country, two systems” political framework. He once commented on the design for Hong Kong’s governing model: “Hong Kong’s system of governance should not be completely Westernized; no Western system can be copied in total. For a century and a half, Hong Kong has been operating under a system different from those of Great Britain and the United States. I am afraid it would not be appropriate for its system to be a total copy of theirs with, for example, the separation of powers and a British or American parliamentary system. Nor would it be appropriate for people to judge whether Hong Kong’s system is democratic on the basis of whether it has those features.”
There are at least three reasons why a modified executive-led system was adopted for Hong Kong after reunification. Firstly, it retains what has worked well in the old system, namely governance efficiency, which contributed significantly to the city’s past success on both the social and economic fronts. Secondly, an executive-led system with the chief executive at the core provides the central government with an effective mechanism to maintain its sovereign power and overall jurisdiction over the HKSAR, or the proposed high degree of autonomy would become full autonomy. Third, both the “separation of powers” and legislature-led governing models are suitable only for sovereign states and not appropriate political structures for regional administrations under a central government. As a special administrative region of China, Hong Kong therefore can only adopt an executive-led governance model.
The author is a current affairs commentator.
The views do not necessarily reflect those of China Daily.
