"Courts Without Separation of Powers" by Benjamin Chen and Zhiyu Li (Harvard International Law Journal)

"Courts Without Separation of Powers"

Chen, Benjamin and Li, Zhiyu 

Harvard International Law Journal, 

Vol 64(1), 2023

Abstract: Like courts everywhere else, socialist courts are tasked to settle disputes. Their decisions are backed by the force of law. But unlike courts everywhere else, socialist courts are also required to support official ideology and policies. They are subject to legislative supervision and party leadership in the performance of their duties. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality. But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional theory and doctrine do not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution. We study how courts in the world’s largest socialist regime identify and tackle social problems ranging from public health to education to crime through the device of judicial suggestions. These suggestions transcend the legal questions raised by litigants and may be directed to private actors like companies and public entities including governmental agencies. Though not binding on their recipients, judicial suggestions are frequently acknowledged and sometimes adopted. Occasionally, they have even precipitated systematic reform. Our exploration of judicial suggestions in China illuminates a function that is available to socialist courts because of their political subordination to the party-state. More broadly, the approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how dogma and doctrine shape the boundaries of institutions, thereby contributing to a more holistic evaluation of socialist courts and their place in the political legal order.  Click here to download the full article.

HKU Law Faculty Perspectives on Separation of Powers in Hong Kong

"Explainer: Understanding Hong Kong’s debate around the separation of powers and an executive-led system"
Rhoda Kwan

Hong Kong Free Press 
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."

"What really is separation of powers?"

David Law

Citizen News 

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)

It is one of the most often cited passages from Sir Anthony’s Mason’s extensive extra-judicial writings during his 18 years as a non-permanent judge on the Court of Final Appeal. An extract from a 2007 Hong Kong Law Journal article in which Mason cautioned that, while the Hong Kong Basic Law clearly “incorporates a separation of powers”, this is one of a number of areas where comparative law needs to be treated with great care[1]—since the exact form in which separation of powers applies will inevitably vary from one jurisdiction to another—was, for a decade after it was written, regularly cited in Hong Kong court judgments relating to the doctrine.[2]

     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.

Danny Gittings on Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation (HKLJ)

"Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation"

Danny Gittings (Phd Candidate)

Hong Kong Law Journal

Vol 49, Part 1 of 2019, pp 187-208

Abstract: Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress, with the courts preferring to blur the boundaries between the three branches rather than embrace the full breadth of the separation of powers doctrine by directly acknowledging that the work of the executive, legislature and even judiciary must sometimes overlap.

PY Lo & Albert Chen on The Judicial Perspective of "Separation of Powers" in Hong Kong (J Int'l & Comp L)

"The Judicial Perspective of "Separation of Powers" in the Hong Kong Special Administrative Region of the People's Republic of China"

PY Lo (PhD 2012) and Albert HY Chen
Journal of International and Comparative Law
Dec 2018, Volume 5:2, pp 279-567

Abstract: Hong Kong, a former British colony, has been a Special Administrative Region (SAR) of the People's Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law.  Applying common law principles, the HKSAR courts have conceptualised "separation of powers" as a feature of the Basic Law - the HKSAR's constitutional instrument - and the Rule of Law in Hong Kong.  This article demonstrates how HKSAR courts have used "separation of powers" to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-a-vis other branches of government.  Towards the end of this article, the judicial narrative that embraces "separation of powers" is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the "separation of powers" in the HKSAR's political system and advocates instead "executive-led government".

Is Cooperation Possible Between Hong Kong's Legislature and Executive?

"Is cooperation possible between Hong Kong's legislature and executive?"

Simon Young
South China Morning Post
6 October 2015

As the Legislative Council prepares for its last year before the 2016 election, it is timely to reflect on its relationship with the executive branch. In his speech last month, Zhang Xiaoming , director of the central government's liaison office in Hong Kong, spoke of the Basic Law ideal that there be "cooperation" between the two branches and "checks and balances of power". With glass throwing in the chamber, endless filibustering and the ongoing saga of approval for the innovation and technology bureau, cooperation seems far from reality.

      Zhang also made this ambiguous statement about the relationship: "There is cooperation in checks and balances and there are checks and balances in cooperation." Was he simply trying to be clever or was there something more substantive to those words? If it was the latter, then let me try to flesh out what might have been intended.
     Let's start with "checks and balances in cooperation". I think this means that checks and balances should be exercised with mutual respect for the authority and powers of the other branches. It implies that each branch knows its own limits and does not overreach into another branch's sphere of authority. In a 2013 judgment of the Court of Final Appeal, non-permanent judge Sir Anthony Mason took note of the limits on courts in judicial review. He wrote: "The separation of powers may deny jurisdiction to the courts when the function involved is exclusively the province of the legislature or the executive". Courts back off "where a political rather than a legal solution may be called for" or when "courts are not institutionally equipped or competent to deal with the issues". The legislative and executive branches should follow this example of having a self-awareness of, and respect for, the limits of each branch's authority, so as to achieve better cooperation.

      Does "cooperation in checks and balances" mean anything different? I offer this interpretation... Click here to read the full article.

Albert Chen on the ABCs of Hong Kong's Political System

"Hong Kong’s Political System ABC – Starting from the Recent Dispute"

A speech given by Zhao Xiaoming, director of the Liaison Office of the Central People’s Government in Hong Kong, in a symposium on 12 September to mark the 25th anniversary of the Basic Law has caused great controversy. The title of the speech was “Understand the Features of Hong Kong Political System Correctly”.

Question: What do you think about the dispute over Zhang’s speech?

Answer: I think the dispute is mainly about wording or expression, but not substantial legal issues. That is, what phrases or concepts should be used to describe or characterize the political system of Hong Kong (HK). The dispute itself is not of much practical significance. It will not affect or alter the actual operation of powers in Hong Kong’s political system.

Question: What is the main theme or central idea of Zhang’s speech?

Answer: This is a very good question. After Zhang made his speech, the media has focused on his point that the Chief Executive (CE) enjoys a “transcendent” legal status which is beyond the executive, judiciary and legislature. In fact, this is not the central idea of his speech. The media has not paid attention to his main argument. We can read the published version of his full speech, which is clear in structure. Zhang firstly pointed out his main argument, then explained it further in four respects. His main point is in this sentence: “I reckon, one can more completely describe the political system of Hong Kong as follows: the political system of HK is a system that comes directly under the Central Government, and is executive-led and Chief Executive centered; the executive and the legislature check and balance against and also cooperate with each other, and the judiciary is independent.”

      This sentence should be uncontroversial. Article 12 of the Basic Law mentions that the HKSAR “comes directly under the Central Government.” Ji Pengfei, Chairman of the Basic Law Drafting Committee, in his explanation to the National People’s Congress in 1990 when the draft Basic Law was under consideration, mentioned checks and balance as well as cooperation between the executive and legislature, and the independence of the judiciary. As for “executive-led” government, it is a feature emphasized by Mainland Chinese scholars and officials discussing the HK political system since the 1990s.

Question: Why then would Zhang’s speech cause such a great controversy?

Answer: The major reason is that when he further explained his main argument in the four subsequent aspects, the second aspect included these sentences: “Because of his status as ‘Dual-Heads’ and his ‘Dual-Responsibilities’, the Chief Executive has a special legal status that transcends the executive, legislature and judiciary. The CE lies at the heart of the operation of powers of the HKSAR, and serves the function of a nexus below the Central Government and above the three powers of the HKSAR.”

Question: What are the meanings of “Dual-Heads” and “Dual-Responsibilities”?

Answer: This is a complicated legal matter, which is related to Article 43 and the Article 60 of the Basic Law. Article 43 provides that “The Chief Executive of the Hong Kong Special Administrative Region shall be the head of the Hong Kong Special Administrative Region and shall represent the Region. The Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People's Government and the Hong Kong Special Administrative Region in accordance with the provisions of this Law.” Article 60 further stipulates that “The head of the Government of the Hong Kong Special Administrative Region shall be the Chief Executive of the Region.” (As to the term “Government” mentioned in the Article 60, it is defined in Article 59 that “The Government of the Hong Kong Special Administrative Region shall be the executive authorities of the Region.”) Thus, “Dual-Heads” refers to the CE’s dual status as the Head of the executive authorities and the Head of HKSAR as a whole when representing the region. For example, the CE reports to Beijing as the Head of the HKSAR, and represents “Hong Kong, China” at APEC meetings. “Dual-responsibilities” means the CE is accountable to both the Central Government and to HK people.

Question: In this case, does the position of the CE transcend or stand above the executive, legislature and judiciary? 

Answer: This is a matter of wording or expression, rather than a substantive problem. Since it is too abstract, it is of little practical significance. As mentioned above, according to the Basic Law, the CE is not only the Head of the executive authorities of the HKSAR, but also the Head of the HKSAR. From the perspective of the Central Government, the CE is elected in HK and appointed by the Central Government, and the CE has the role of representing HK. Zhang described this situation as the CE having “a special legal status that transcends the executive, legislature and judiciary”. As to the expression of “above the three powers of the HKSAR”, we should pay attention to its context in the full sentence, which is “the CE serves the function of a nexus below the Central Government and above the three powers of the HKSAR.” The focal point of this sentence is the CE’s function as a nexus between the Central Government and the three powers of the region, which is about communication and being a bridge, and not about the CE standing high above the three powers. Under the Basic Law, the CE enjoys certain powers, but he is also bound by the Basic Law and other laws of HK. The Basic Law does not grant any immunity or exemption to the CE in civil or criminal matters. “All Hong Kong residents shall be equal before the law”, says Article 25; “Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in the Hong Kong Special Administrative Region”, Article 42 so provides. All these provisions apply to the CE. 

Question: Zhang mentioned in his speech that “the political system of Hong Kong does not practice the separation of three powers”. Is HK practicing the separation of three powers?

Answer: Although Zhang stated that HK is not practicing the separation of the three powers, his speech includes two other passages: ‘Given the nature and features of this regional political system, and given the existence of the central authority’s power besides those of the executive, legislature and judiciary of the SAR, the political system of the usual separation of powers among three branches, which is often established on the basis of a full mode of power of a sovereign state, is at most only of referencing and consulting value to the HKSAR, but not completely applicable to the HKSAR’; and ‘one should not simplistically believe that so long executive, legislative and judicial organs are separately established and there exist checks and balances among them, then a political system practicing separation of three powers exists.’ 

      Therefore, Zhang does not agree to describe or characterize the political system of Hong Kong by using “separation of three powers” mainly because HK’s political system is a local or regional political system rather than the “full mode of power of a sovereign state”. Yet at the same time he agrees that the principle of separation of three powers may be of “referencing and consulting value” to HK at the same time. I mention above that Zhang’s main point in his speech was to describe the characteristics of the political system of the HKSAR, which in his view includes “checks and balances as well as cooperation between the executive and legislature, and the independence of the judiciary.” To HK’s legal profession and the judiciary, these features already count as “separation of powers”. A search on this English term on the HK Judiciary website shows it is mentioned in more than 70 cases decided by different levels of courts in HK. The court judgment in every one of these cases mentions the principle of “separation of powers” affirmatively.

     Written by Albert Chen and translated by Bella Liu.  The original Chinese version of this article was published in Orange News on 17 September 2015.

Michael Davis on the Separation of Powers Debate in Hong Kong (SCMP)

"Separation of powers is already a fact of life in Hong Kong"
Michael Davis
South China Morning Post
19 September 2015

Zhang Xiaoming , head of the central government's liaison office in Hong Kong, caused quite a stir when he proclaimed that the city's executive-led government does not have separation of powers and that the chief executive is superior to the other two branches of government. He claimed that having three branches of government - the executive, legislative and judiciary - with each checking and balancing the other, did not amount to separation of powers. He also doubted separation of powers could apply to a sub-national government.

     One can speculate on what Zhang was attempting to achieve, but when it comes to his legal analysis, he is clearly confused. Zhang's claim that the Hong Kong system has never been characterised by separation of powers is simply false. His own recital of a dozen Basic Law provisions that afford oversight of one branch of the Hong Kong government over the others in a web of checks and balances belies such a claim.

     Indeed, contrary to his statement, when you have the three branches of government and each checks and balances the other, then you have separation of powers. That is quite literally the definition of separation of power originating in the writings of Montesquieu in the classic The Spirit of the Laws...  Click here to read the full article.

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.

Jianlin Chen's Critical Study of Legislation by Press Release

"The Yet-to-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty as a Critical Case Study of Legislation by Press Release"

Jianlin Chen

University of Pennsylvania East Asia Law Review

2015, Vol. 10, n. 1, pp 1-64

Abstract: When a government announces that an existing law will be amended and that the amendment, when finally enacted by the legislature, will be made effective from the announcement date, it is natural and inevitable that private entities will conduct their activities on the basis of the amended law immediately upon the announcement date, notwithstanding the announcement’s lack of any formal legal effect. This practice of effecting immediate de facto legal changes is known derisively, but perhaps aptly, as “legislation by press release.” This article utilizes the recent use of legislation by press release to implement the Buyer’s Stamp Duty in Hong Kong as a case study to critically examine the legality and normative considerations of this increasingly common but under-theorized practice. Legally, this Article argues that the prospective notice provided by the initial announcement ensures the practice’s legality in all but an explicit prohibition of retrospective civil legislation. Normatively, this Article highlights the various criteria of clarity, consistency, necessity and political dynamic that affect the desirability of the practice. On a broader note, the formal retrospectivity inherent in the practice - but which does not disrupt the reliance interests of private entities - provides a useful reexamination of the conventional aversion towards retrospective laws.  Click here to access the full article.

Yash Ghai on Separation of Powers in Kenya

"Separation of Powers, Checks and Balances, and The Rule of Law"

The Star

25 October 2014

Yash Ghai

In recent months there have been major conflicts between state institutions, quarrels between Governors and Senators, the Senate and the National Assembly, the Executive and the National Assembly, Governors and members of County Assemblies. There have been spats between the judiciary and the other state institutions, while the judiciary has declared unconstitutional the acts both of the legislature and the executive. There is a real danger that if these antagonisms continue, there will be a total collapse of government institutions. Yet there is no excuse for squabbles. The constitution is clear as to their respective powers and responsibilities, and the relationship between them. These crises have arisen only because the protagonists have ignored or twisted constitutional provisions to pursue their political objectives and personal gains.  Click here to read the full article.