The concept of
separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
has been considered and disputed in
Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China ( abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delt ...
and its various forms of government. Prior to the
Handover of Hong Kong
Sovereignty of Hong Kong was transferred from the United Kingdom to the China, People's Republic of China (PRC) at midnight on 1 July 1997. This event ended 156 years of British rule in the British Hong Kong, former colony. Hong Kong was establ ...
in 1997, the government of
British Hong Kong
Hong Kong was a colony and later a dependent territory of the British Empire from 1841 to 1997, apart from a period of occupation under the Japanese Empire from 1941 to 1945 during the Pacific War. The colonial period began with the Briti ...
did not have a Western-style separation of powers.
The post-handover
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 ...
does not explicitly prescribe a separation of powers, but allocates power to the
Executive Council,
Legislative Council, and
Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
.
Since the 1997 handover, whether the separation of powers principle exists within the Hong Kong political system has been disputed among the
Hong Kong SAR Government
The Government of the Hong Kong Special Administrative Region, commonly known as the Hong Kong Government or HKSAR Government, refers to the executive authorities of Hong Kong SAR. It was formed on 1 July 1997 in accordance with the Sino-Br ...
,
central Chinese Government, and public media.
History
British colonial era
In
British Hong Kong
Hong Kong was a colony and later a dependent territory of the British Empire from 1841 to 1997, apart from a period of occupation under the Japanese Empire from 1941 to 1945 during the Pacific War. The colonial period began with the Briti ...
, the political system did not include a Western-style separation of powers.
The colonial-era judiciary was independent from the rest of the government, but legislators were appointed by the governor until 1985 (with the introduction of
functional constituencies
A functional constituency is an electoral device (a non-geographical constituency) used within the political systems of two Special Administrative Regions of the People's Republic of China:
* Functional constituency (Hong Kong)
* Functional cons ...
) and senior government officials were given seats in the Legislative Council until 1995.
In 1986, a report to the
Hong Kong Basic Law Drafting Committee
The Hong Kong Special Administrative Region Basic Law Drafting Committee (BLDC) was formed in June 1985 for the drafts of the Hong Kong Basic Law for the Hong Kong Special Administrative Region (HKSAR) after 1997. It was formed as a working group ...
from its political subgroup recommended a government model involving separation of powers.
The proposal was rejected in 1987 by
Chinese leader Deng Xiaoping
Deng Xiaoping (22 August 1904 – 19 February 1997) was a Chinese revolutionary leader, military commander and statesman who served as the paramount leader of the People's Republic of China (PRC) from December 1978 to November 1989. After CC ...
who said that "the Hong Kong system of government should not be completely Westernised" and that copying the "separation of three powers" would be inappropriate, after which the committee stopped using the term.
Post-1997 handover
After the 1997
Handover of Hong Kong
Sovereignty of Hong Kong was transferred from the United Kingdom to the China, People's Republic of China (PRC) at midnight on 1 July 1997. This event ended 156 years of British rule in the British Hong Kong, former colony. Hong Kong was establ ...
, the
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 ...
encoded mainland China's decision to allocate power to the executive, judiciary, and legislative branches of government, with an elected legislature not controlled by the executive authorities.
However, the Basic Law does not explicitly specify a "separation of powers".
Since 1997, Hong Kong courts have frequently conceptualised separation of powers as a feature of the law in Hong Kong, in contrast to officials from mainland China who have emphasised the lack of explicit separation of powers and highlighted the powers of the
Chief Executive
A chief executive officer (CEO), also known as a central executive officer (CEO), chief administrator officer (CAO) or just chief executive (CE), is one of a number of corporate executives charged with the management of an organization especially ...
and power of the
Standing Committee of the National People's Congress of China (NPCSC).
In September 2015,
Zhang Xiaoming
Zhang Xiaoming (; born 3 September 1963) is a Chinese politician. He was the director of the Liaison Office of the Central People's Government in Hong Kong and then of the Hong Kong and Macau Affairs Office, before being demoted to deputy direc ...
, then-director of the
Hong Kong and Macau Affairs Office
The Hong Kong and Macau Affairs Office of the State Council is an administrative agency of the State Council of the People's Republic of China responsible for promoting cooperation and coordination of political, economic and cultural ties betwe ...
of China said that "Hong Kong does not practise the separation of powers system" and that the Chief Executive of Hong Kong had a special legal status that was "transcendent" of the executive, legislature, and judiciary.
Zhang, in addition to other mainland Chinese academics and officials, described the fundamental principle of designing the Hong Kong political system as being an "executive-led system".
2020 textbook controversy
On 31 August 2020, at a press conference to announce the resumption of classes in all schools in Hong Kong next month, the then-Secretary for
Education Bureau
The Education Bureau (EDB) is responsible for formulating and implementing education policies in Hong Kong.
The bureau is headed by the Secretary for Education and oversees agencies including University Grants Committee and Student Fina ...
,
Kevin Yeung
Kevin Yeung Yun-hung (; born 26 January 1963) is a Hong Kong government official. He is the current Secretary for Culture, Sports and Tourism, serving since 2022.
He graduated from the University of Hong Kong with a Bachelor of Social Sciences ...
, responded to a
Liberal education
A liberal education is a system or course of education suitable for the cultivation of a free (Latin: ''liber'') human being. It is based on the medieval concept of the liberal arts or, more commonly now, the liberalism of the Age of Enlightenment ...
textbook publisher's proposal to delete the content of the textbook on the separation of powers in Hong Kong after the Government's consultation, saying that there was no system of separation of powers in Hong Kong before and after the handover of sovereignty, and this point needed to be stated in textbooks. The following day, the Chief Executive,
Carrie Lam
Carrie Lam Cheng Yuet-ngor ( Cheng; ; born 13 May 1957) is a retired Hong Kong politician who served as the 4th Chief Executive of Hong Kong from 2017 to 2022. She served as Chief Secretary for Administration between 2012 and 2017 and Secr ...
, publicly stated at a press conference that she fully supported
Kevin Yeung
Kevin Yeung Yun-hung (; born 26 January 1963) is a Hong Kong government official. He is the current Secretary for Culture, Sports and Tourism, serving since 2022.
He graduated from the University of Hong Kong with a Bachelor of Social Sciences ...
's view that there was no separation of powers. She stressed that the executive authorities, the legislature and the judiciary should co-ordinate with each other and exercise checks and balances, but all of them should be accountable to the Central Authorities through the Chief Executive. She described the relationship between the three powers in Hong Kong as one in which each has its own role to play, and hoped that they could complement each other.
The
Hong Kong Bar Association
The Hong Kong Bar Association (HKBA) is the professional regulatory body for barristers in Hong Kong. The Law Society of Hong Kong is the equivalent association for solicitors in Hong Kong.
Victor Dawes SC is the current chairman of the Cou ...
criticised Lam's statements, saying that independent operations of the three branches of government would guard against abuse.
On 7 September 2020, the Hong Kong and Macau Affairs Office and
Hong Kong Liaison Office
The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region (; abbr. LOCPG or 香港中聯辦) is the agency that represents the Chinese Central People's Government in Hong Kong. It replaced the New Chi ...
both issued statements supporting the Education Bureau's decision to remove remarks about separation of powers from teaching materials while emphasizing that Hong Kong had an executive-led governance system with checks and balances between the executive, legislative, and judiciary branches.
Constitutional law scholar
Johannes Chan
Johannes Chan Man-mun (陳文敏) SC (Hon) is an Adjunct Professor, former Chair Professor of Law (–2021) and former Dean of the Faculty of Law (2002–2014) at the University of Hong Kong. He specialises in human rights, constitutional and ...
described the distinction drawn by Lam and mainland China as a semantic issue, but said that the debate represented a power struggle against alternative interpretations of the Basic Law of Hong Kong for the central Chinese government beyond semantics.
Government structure
Executive branch
The
Chief Executive of Hong Kong
The Chief Executive of the Hong Kong Special Administrative Region is the representative of the Hong Kong Special Administrative Region and head of the Government of Hong Kong. The position was created to replace the office of governor of ...
(CE) is the head of the Hong Kong Special Administrative Region and is elected by a 1200-member Election Committee drawn mostly from the voters in the
functional constituencies
A functional constituency is an electoral device (a non-geographical constituency) used within the political systems of two Special Administrative Regions of the People's Republic of China:
* Functional constituency (Hong Kong)
* Functional cons ...
but also from religious organisations and municipal and central government bodies. The CE is legally appointed by
Premier
Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier.
A premier will normally be a head of governm ...
, head of the
Central People's Government
The State Council, constitutionally synonymous with the Central People's Government since 1954 (particularly in relation to local governments), is the chief administrative authority of the People's Republic of China. It is chaired by the p ...
of China. The
Executive Council, the top policy organ of the executive government that advises on policy matters, is entirely appointed by the Chief Executive.
Legislative branch
In accordance with Article 26 of the Basic Law of the Hong Kong Special Administrative Region, permanent residents of Hong Kong are eligible to vote in direct elections for the 35 seats representing geographical constituencies and 35 seats from
functional constituencies
A functional constituency is an electoral device (a non-geographical constituency) used within the political systems of two Special Administrative Regions of the People's Republic of China:
* Functional constituency (Hong Kong)
* Functional cons ...
in the 70-seat, unicameral
Legislative Council (LegCo).
Within functional constituencies, 5 seats attribute to
District Council (Second)
The District Council (Second) functional constituency () was a functional constituency in the elections for the Legislative Council of Hong Kong which was created in the 2012 constitutional reform package. It was the largest functional constituen ...
which virtually regards the entire city as a single electoral constituency. The franchise for the other 30 seats is limited to about 230,000 voters in the other functional constituencies (mainly composed of business and professional sectors).
Judicial branch
The Judiciary consists of a series of courts, of which the
court of final adjudication is the
Court of Final Appeal.
However, the Basic Law of Hong Kong stipulates that rulings of the Court of Final Appeal are subject to the final interpretation by the
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress of the People's Republic of China (NPCSC) is the permanent body of the National People's Congress (NPC) of the People's Republic of China (PRC), which is the highest organ of state po ...
(NPCSC) of China.
Dispute
Whether separation of powers exists within the Hong Kong political system and the principle's scope have been disputed since the Handover of Hong Kong and the activation of the Basic Law of Hong Kong in 1997, and even during the drafting process of the Basic Law in the 1980s.
Scholars and legal professionals from Hong Kong tend to argue that the Hong Kong government has clear separation of powers while scholars and officials from mainland China insist that it is an executive-led government with judiciary independence as well as subordination to the Central Government and power centred around the Chief Executive (CE).
Since the 1997 handover, Hong Kong courts under the authorisation of the Standing Committee of the National People's Congress (NPCSC) of China have frequently conceptualised separation of powers as a feature of the law in Hong Kong, using it to guard against executive and legislative encroachment against judicial independence and to justify non-interference in matters pertaining to the executive and legislative branches.
Due to the unique position of the NPCSC above the highest Hong Kong court and the ability of the Chief Executive to trigger interpretations of the Basic Law from the NPCSC, the separation of powers in Hong Kong is idiosyncratic and resembles weak
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
.
Documents
Official documents of the HKSAR Government
*The Basic Law of Hong Kong does not explicitly specify a "separation of powers" but does allocate powers to the executive, legislative, and judiciary branches of Hong Kong.
*In the official press kit distributed to Chinese and foreign reporters at the 1997
Hong Kong handover ceremony
The handover ceremony of Hong Kong in 1997 officially marked the transfer of sovereignty over Hong Kong from the United Kingdom of Great Britain and Northern Ireland to the People's Republic of China. It was an internationally televised event w ...
, the first sentence of the chapter on "Government System" recorded that "Hong Kong's political system is based on the principle of 'separation of powers' and has an executive-led government.
*The
Education Bureau
The Education Bureau (EDB) is responsible for formulating and implementing education policies in Hong Kong.
The bureau is headed by the Secretary for Education and oversees agencies including University Grants Committee and Student Fina ...
's website has accessed the note "The Basic Law, the Rule of Law and Hong Kong's Strengths" written by Justice
Patrick Chan in 2011. In the chapter on "The Rule of Law as a System", "Separation of Powers" is listed, explaining that the functions of the government can be carried out by the legislature, the executive and the judiciary, and that the establishment of authorities can avoid concentration of power and abuse of power. The document was deleted in 2020, but ''
Stand News
''Stand News'' ( zh, t=立場新聞) was a free non-profit online news website based in Hong Kong from 2014 to 2021. Founded in December 2014, it was the successor of ''House News''. It primarily focused on social and political issues in Hong ...
'' wrote that traces of blocked hyperlinks and related content remained on the Internet.
Judicial verdict
Hong Kong Internet-based media ''
Stand News
''Stand News'' ( zh, t=立場新聞) was a free non-profit online news website based in Hong Kong from 2014 to 2021. Founded in December 2014, it was the successor of ''House News''. It primarily focused on social and political issues in Hong ...
'' reported that by 2020, the separation of powers have been explicitly mentioned more than 100 times in the verdicts of Hong Kong judges.
It also reported that Chief Justice of the Court of Final Appeal,
Andrew Cheung
Andrew Cheung Kui-nung (; born 24 September 1961) is a Hong Kong judge who serves as the 3rd Chief Justice of the Court of Final Appeal. He previously served as a Permanent Judge of the same court. He was the 4th and longest-serving Chief J ...
, also explicitly recorded the separation of powers system in Hong Kong in a 2008 judgement.
Textbooks
The doctrine of separation of powers appeared in textbooks in Hong Kong, including an
Economic and public affairs textbook in 2013.
See also
*
Censorship
Censorship is the suppression of speech, public communication, or other information. This may be done on the basis that such material is considered objectionable, harmful, sensitive, or "inconvenient". Censorship can be conducted by governments ...
**
Censorship in Hong Kong
**
Censorship in China
Censorship in the People's Republic of China (PRC) is implemented or mandated by the PRC's ruling party, the Chinese Communist Party (CCP). It is one of strictest censorship regimes in the world. The government censors content for mainly polit ...
*
Controversies of the Hong Kong Police Force
The Hong Kong Police Force (HKPF) has been involved in several controversies and scandals throughout its history. Once nicknamed "Asia's Finest" after reform in the British colony years, the HKPF has been the target of widespread allegations o ...
References
Further reading
*
{{Separation of powers
Politics of Hong Kong
Separation of powers