Friday, September 18, 2015

Zhang's Strict Version of Separation of Powers (Danny Gittings)

Hong Kong’s newspapers, and radio airwaves, have been dominated for the past week by reaction to the self-professed “controversial” comments by Zhang Xiaoming. In a 12 September 2015 speech to a seminar on the 25th anniversary of the promulgation of the Hong Kong Basic Law, the Director of the Liaison Office of the Central Peoples’ Government in Hong Kong denied the existence of any system of separation of powers under the Hong Kong Basic Law. Instead he insisted the correct description was one of executive-led government with, most controversially, the Chief Executive enjoying “a special legal status that transcends the executive, legislature and judiciary”.
     Zhang’s denial of the existence of any system of separation of powers might seems puzzling to those who have read Chapter IV of the Hong Kong Basic Law, with its separate sections on the powers of the Chief Executive (Articles 43-58), Executive Authorities (Articles 59-65), Legislature (Article 66-79) and Judiciary (Article 80-98), as well as the relevant case law on the subject, especially the Court of Final Appeal’s strong affirmation of the existence of a system of separation of powers in Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689.
     But they are readily understood by reference to another—little noticed—speech Zhang delivered four years ago, where he examined separation of powers in more detail in the context of Macau, another Special Administrative Region with a mostly similarly worded Basic Law. In that 2011 speech,[i] Zhang offered something missing from his latest speech, explaining his understanding of separation of powers, and defining it as requiring “a certain level of checks and balances and a degree of equilibrium among executive, legislative and judicial powers are attained, with complete institutional, functional and personnel separations of the three branches, each being not accountable to the other two and roles of officers of each branch not overlapping those of the others”[ii] (emphasis added).
     Assuming Zhang still adheres to such a strict definition of separation of powers, it is no surprise he concluded that the system under the Hong Kong Basic Law, which permits legislators to sit on the Executive Council (Article 55) and grants the Chief Executive sweeping powers over the introduction (Article 74) and promulgation of legislation (Article 49) (to cite just a few examples of overlaps between the three branches), fails to fulfil his definitional requirement of “complete institutional, functional and personnel separations of the three branches”. But nor would almost any other constitutional document in world history, with the possible exception of the short-lived French Constitution of 1791 and a few equally brief experiments in states such as Pennsylvania during the American War of Independence.
     Such ill-fated experiments aside, separation of powers has never entailed the complete separation of the executive, legislature and judiciary that Zhang’s definition would appear to require. Indeed the whole concept of checks and balances demands some degree of overlap between the executive, legislature and judiciary. Instead it would seem preferable to view the concept through a “separation-of-powers continuum”[iii] that embraces a wide range of constitutional models, which all embrace separation of powers to varying extents, and can be placed at different places along this continuum based on the degree to which they do so.
      As Yash Ghai once observed, “the interesting question is not whether there is a separation of powers, but the balance and relationship between the institutions”.[iv] Rather than making definitive judgments based on an overly strict definition, it might be more productive to consider more precisely where Hong Kong fits within the “separation-of-powers continuum”.
     Written by Danny Gittings, who is completing his PhD on the topic of separation of powers in Hong Kong.

[i] “Why the Political System of the Macao SAR is not One of Separation of Powers’. Speech at the Graduation Ceremony of the Advanced Seminar for Macao Basic Law Studies”, reprinted in (2013) 2 Academic Journal of “One Country, Two Systems” (English Edition) 5-13.
[ii] Ibid. at 9.
[iii] Donald S. Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006) at page 123.
[iv] Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 2nd edition, 1999) at page 263.

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