• 三權要分立|戴啟思
  • 2020-09-26    

 

Separation of Powers or Shared Functions?

As an eight-year-old, it is upsetting when a parent or older sibling explodes a childhood certainty, whether it is a belief in the Tooth Fairy or Santa Claus. Shocked disbelief gives way to a dawning realisation of the awful truth, and then there are a few tears.

As a lawyer with interest in constitutional law, I thought that I might experience the same deflating feeling when the Chief Executive told the world last Tuesday that there was no such thing as the Separation of Powers principle at work in the HKSAR. To make her point, she said to look in the Basic Law. The phrase ‘Separation of Powers’ is not to be found there, she asserted.

I looked in the Basic Law. I scoured all 160 articles and its annexes of constitutional text that establishes the HKSAR and the way we are governed. The Chief Executive was right. Those three words were not there.

However, I noticed that the phrase ‘Executive Led Government’ was missing too. Did that mean that principle of governance, championed by the Chief Executive, was of no application also?

I am sorry for the ponderous attempt at humour, but I need to make the point at the outset that the phrase ‘Separation of Powers’ is descriptive only. Whether the words appear in a constitutional text does not matter one jot.

What matters is whether an analysis of governmental powers set out in a constitution makes that description an accurate one.

First, what is meant by the principle of the Separation of Powers?

Putting it simply, it means the delineation of the core activities of Government in a constitution. Those activities are described as powers inhering in branches of Government.

They are (1) Executive power-action by the Government affecting a person’s rights and obligations; (2) Legislative power-making the laws which authorise those executive acts, and; (3) Judicial power-adjudicating on the lawfulness of executive actions.

The principle is not complicated. It is in action every day, as can be seen by this example.

The Legislative Council enacts a new law which permits the Executive to resume property if certain conditions are satisfied and create a right to an award of compensation: the legislative act.

The Government takes the property and offers compensation to the owner-the executive act.

In a dispute between the Government and the property holder, a judge decides whether the conditions for taking the property were met or about the amount of compensation offered-the judicial act.

These functions are described in detail in Chapter IV of the Basic Law in such a way as to show that they are separate: Article 48 says that the Chief Executive leads the Government of the HKSAR and decides on policies and executive orders; Article 73 says that the Legislative Council enacts, amends or repeals laws; Article 80 says that the judicial power of the HKSAR vests in the courts and, by Article 85, that exercise that power ‘independently, free from any interference’.

So far, so good. However, for this division of powers to work there needs to be mutual respect between the three branches of Government. That can only come from an understanding of the limits of powers.

A well-constructed constitutional document will draw lines that indicate where one power may have to give way to another. These are what are commonly called ‘checks and balances’. The drafters of the Basic Law included many of these necessary constitutional devices.

For example, the legislative power to make laws for the HKSAR is not unlimited. Article 74 of the Basic Law requires permission from the Chief Executive if Legco members want to introduce a bill affecting government policies. This severe limitation on legislative power is one reason why the constitutional arrangements under the Basic Law are said to be ‘executive-led’.

Going the other way, the Chief Executive’s powers can be checked by Legco by it refusing to pass a budget. If this happens, the Chief Executive can dissolve Legco and try again with a new Legco. If the new Legco refuses to pass the budget then, under Articles 52 of the Basic Law, the Chief Executive must resign.

On the judicial side, for the judicial power to be effective, a court’s orders need to be respected.

That means the Executive needs to abide by court orders when they are made against it, however much inconvenience it causes Government officials.

Article 35 of the Basic Law draws the line here by creating the right of access to the courts to seek judicial remedies. The article expressly says that residents can take court proceedings against the executive authorities and their personnel.

For its part, the judicial power of the HKSAR is exercised with restraint. Judges interpret written laws made by Legco to arrive at the correct legal meaning. If the interpretation produces an inconvenient result, judges cannot rewrite the law to avoid the inconvenience. Amending or repealing the law is the responsibility of Legco.

Similarly, when acts of the Executive are subject to judicial review, the court looks only at the decision-making process behind the act to see if something went wrong.

If a court sets aside a decision made by a body that refused a licence to a person because of some legal error, it does not make a new decision and grant the licence. Instead, it sends the matter back to the licensing body for it to make the decision again. It does this because the ordinance creating the licensing body said that it, and not a court, was to be the decision-maker.

It may be that the Chief Executive is looking at the existing arrangements under the Basic Law from the perspective of a Mainland political scientist. Such a person would not recognise the separation of powers described above.

I am no expert on PRC constitutional principles. However, I am reasonably confident in thinking that the PRC system works on the basis that there is a separation of government functions and responsibilities but the principal organs of state power guide the relevant bodies about how to go about their work collectively.

This model means that judges would not, as they do now (subject only to interpretations from the Standing Committee of the National People’s Congress about the Basic Law) have the sole power to make authoritative

interpretations of laws.

For the reasons set out above, the Mainland, the structure of the Basic Law is such that this model of governance does not fit in with what we have in the HKSAR.

It can be made to fit, but that would require an amendment of the Basic Law which, as you may know, is very difficult to bring about. Indeed, it may be impossible.

Article 159 of the Basic Law recognises that some parts of the Basic Law are cannot be amended because they reflect the ‘established basic policies’ of the PRC regarding Hong Kong. The Preamble to the Basic Law states that those ‘established policies’ are to be found in the Chinese Government’s elaborations in the Sino-British Joint Declaration from 1984.

A quick perusal of Annex I to the treaty reveals that the future HKSAR was to have executive, legislative and judicial power. Importantly, it says that judicial power in the HKSAR was to be exercised ‘independently’ and ‘free from any interference’.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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