Rhoda Kwan
Hong Kong Free Press
26 September 2020
26 September 2020
Chief Executive Carrie Lam and her administration insist that Hong Kong has an “executive-led” system of government, with no formal separation of powers between the executive, the judiciary and the legislature. This seems directly to contradict statements by successive chief justices about guarantees of judicial independence under the doctrine of separate powers.
The issue at the crux of the debate is whether Hong Kong’s system is founded on a common law principle which provides safeguards against the abuse of power. Given the uncertainties surrounding the national security law, there are concerns that Lam’s administration is weakening the checks and balances that guarantee judicial independence and the rule of law...
What legal scholars say
Albert Chen, a professor of constitutional law, told HKFP that the debate was merely an issue of interpretation and description, deferring to the statements from Beijing as the appropriate description of the Hong Kong system.
“Hong Kong and Chinese government officials reject the [Chinese term for the separation of powers] mainly because it is considered to be inconsistent with the [Chinese term for an executive-led system], which they believe to be the accurate description of the nature of the HKSAR political system.”
However, he said there is no inconsistency between the separation of powers and an executive-led system, and he does not think the government’s comments “will change the way in which courts apply the doctrine of separation of powers in the future.“
Another constitutional law expert, Professor Johannes Chan, told HKFP it goes deeper than a matter of description:
“It is true that there is a different understanding between Hong Kong and the Mainland on separation of powers, but this is more than a matter of interpretation. The understanding will affect how one sees the development of the system.“
He also raised concerns that the government interprets “executive-led” to mean that it can override the courts. “It begs the question of what is executive-led… if it means that the executive prevails over the judiciary or that the Chief Executive is above the law, that is something to be worried [about].”
Chan also said that the separation of powers does not touch on the question of sovereignty. “No one says that [the separation of powers] would allow Hong Kong to usurp power that is beyond its autonomy. For powers that are within its autonomy, there is nothing wrong about separation of powers among the three branches, in that each has its own constitutional role and there are checks and balances.“
“This has nothing to do with the sovereign power. Nor is it inconsistent with the power coming from the sovereign. But if the objection is that the sovereign has power over the judiciary and the judiciary is expected to be a compliant judiciary, that is of course not our understanding and contrary to what the Basic Law has provided for."
Published in September 2020
(Editor's note: The following is an excerpt of written response by Professor David Law on recent remark by Chief Executive Carrie Lam, who rejected the notion of separation of powers...)
It does sound like Carrie Lam is deeply confused or deeply mistaken. The allocation of power between national and subnational governments is *not* the same as “separation of powers”.
"Separation of powers” traditionally refers to the separation of powers among the legislative, executive, and/or judicial branches. In this sense, the concept dates back to Montesquieu. A parliamentary system has only a bipartite (two-part) separation of powers, between the legislative and executive (which are combined together, because the Prime Minister and Cabinet are executive but also sit in the legislature) and the judiciary, which is separate.
In other words, separation of powers is a horizontal relationship, among equal institutions that perform different functions.
But the relationship between Beijing and HKSAR is a vertical relationship, between a government that rules over broader territory, and a government that rules over narrower territory.
That is about dividing power on the basis of geography (national vs subnational) and subject matter (e.g. education, environmental protection, immigration), not on the basis of functions (executive, legislative, judicial). So we do not call it “separation of powers”. Click here to read the full text.
"Separation of Powers"
By Danny Gittings (PhD candidate)
Last week that same passage, which had been previously cited by Ms Teresa Cheng in 2011 while sitting as a deputy High Court,[3] was used once again by the now Secretary for Justice in the very different context of a strongly worded newspaper article which argued that the “doctrine has no place in the political structure of Hong Kong” and used language such as “desperate” and “pathetic” to disparage those who disagree with her.[4] Mason’s specific caution, which only ever mentioned avoiding the direct incorporation of foreign case law in this area and never suggested such judgments could not be more selectively cited (as Cheng, in fact, did in her 2011 judgment)[5], was twisted into a much more general warning that the doctrine as a whole “must be treated with great care in its application in Hong Kong”, wording which seemed to imply that both Mason and the judges who cited this extract had doubts about whether the doctrine applies under the Hong Kong Basic Law at all.
Since this extract from Mason’s 2007 article has been interpreted so greatly out of context, it might be helpful briefly to revisit the context in which it was originally written. Separation of powers is not, and has never been, since at least the 18th century, the pure system set out in the leading textbook definition by MJC Vile that Cheng’s newspaper article cited to buttress her argument that Hong Kong does not have any version of the doctrine at all. From reading that text, the Secretary would know that Vile only offered this pure definition as a “benchmark” against which to judge the less extreme versions of separation of powers practiced, in various forms, in most jurisdictions around the world.[6] That point was somewhat overlooked in a handful of early court judgments on separation of powers under the Hong Kong Basic Law, which came rather too close to adopting a pure version of the doctrine,[7] in one case citing from a formalist Australian precedent which Mason himself had previously criticised.[8] Mason’s cautions on this point, which began a few months after one of these formalist judgments,[9] are best understood as friendly advice from someone experienced in ruling on separation of powers issues on the need for the SAR to carve out its own distinctive version of separation of powers, just as other jurisdictions the world over have done.
That advice was heeded in subsequent judgments, and it must be open to doubt if Mason would feel any need to repeat the same caution today. During the second decade of the SAR, the courts carved out what Cheung J (as he then was) described as a “flexible and realistic, as opposed to an idealistic approach to the doctrine of separation of powers”[10], which recognises that the precise manner in which separation of powers is applied must be adapted to suit Hong Kong’s specific circumstances, just as it is in almost every jurisdiction in the world.[11] That means a court's application of a localised version of the doctrine is a far cry from the wholesale adoption of a western political system that appears to have been the real target of Deng Xiaoping’s 1987 warning which, although he only briefly mentioned separation of powers in passing (and inaccurately referred to the existence of an “American parliamentary system”) continues to be resurrected every time there is a fresh debate over the existence of separation of powers under the Hong Kong Basic Law.[12]
Had the Secretary confined herself simply to pointing out Hong Kong’s system is far from a “pure” system of separation of powers—as one mainland scholar did last week[13]—she could have provided a useful contribution to the current debate over the issue. But an article that uses language like “desperate” and “pathetic” to disparage those who disagree with her hardly falls into that category.
Danny Gittings is completing a PhD on separation of powers at the Faculty of Law.
[1] Sir Anthony Mason, “The Place of Comparative Law in the Developing Jurisprudence on the Rule of Law and Human Rights in Hong Kong” (2007) 37 HKLJ 299, 305.
[2] Luk Ka Cheung v Market Misconduct Tribunal [2009] 1 HKLRD 114, 130, Re Easy Concepts International Holdings Ltd [2011] 6 HKC 391, 407, Koon Wing Yee v Financial Secretary [2013] 1 HKLRD 76, 93 and Chief Executive of the HKSAR v President of the Legislative Council [2016] 6 HKC 417, 434.
[3] Re Easy Concepts at 407.
[4] Teresa Cheng, “Why separation of powers has no place in Hong Kong’s political structure”, South China Morning Post, 9 Sept. 2020.
[5] Deputy High Court Judge Cheng’s judgment made reference to four Australian, and one US, decisions on the meaning of judicial power.
[6] MJC Vile, Constitutionalism and the Separation of Powers (Indianapolis: Liberty Fund, 2nd ed., 1998) at page 14.
[7] See Danny Gittings, “Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation” (2019) 49(1) HKLJ 1, 11-13.
[8] Lau Kwok Fai v Secretary for Justice (unrep., HCAL 177 and 180/2002, [2003] HKEC 711) at para. 19, citing from R v Kirby, ex p Boilermaker’s Society of Australia (1956) 94 CLR 254, an Australian judgment which has been widely criticized, including in Sir Anthony Mason, “A New Perspective on Separation of Powers” (1996) 82 Canberra Bulletin of Public Administration 1, 5.
[9] In the inaugural lecture of the Common Law Lecture Series on 18 March 2005, three months after a highly formalist judgment in Re Chu Wai Ha [2005] 2 HKC 36. See Gittings (n7) at 14.
[10] Luk Ka Cheung at 134.
[11] Gittings (see n7) at 14-17
[12] Deng Xiaoping, “Speech at a Meeting with the Members of the Committee for Drafting the Basic Law of the Hong Kong Special Administrative Region”, 16 April 1987 in Deng Xiaoping on the Question of Hong Kong (Beijing: Foreign Languages Press, 1993) at page 55
[13] Zhu Zheng, “Separation of powers in Hong Kong: Yes or no?”, CGTN, 10 Sept. 2020.
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