The Separation of Powers in the Hong Kong Legal System

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"There should be mutual understanding and support amongst the Executive, the Legislature and the Judiciary institutions."Xi Jinping Vice-President of the People's Republic of China during his visit to the Hong Kong SAR on July 7th, 2008 made the above statement that hit a raw nerve in the public. In response to concerns in the fundamentals of Hong Kong's legal system, Hong Kong Bar Association issued a statement to clarify that the judiciary independence is "firmly guaranteed" by the Basic Law, which is to "remain separate and independent from the Executive and the Legislature" and shall not be "regarded as a part of the governance team" (Hong Kong Bar Association, 2008).

This paper examines related Articles of the Basic Law, legislatures and ordinances to understand how the separation of powers comes in to play in Hong Kong SAR and identifies the relations of the three powers while reviewing relevant cases that have impacted the system.

The concept of separation of powers had rooted in Hong Kong from its colonial past but it was not until July 1st, 1997 had the system been put into practice with a codified constitution that laid down the legal foundations. One of the most important general principles of the Basic Law is the authorization of the region to maintain a system of executive, legislative and independent judicial power (BL 2), which concept is very different from the centralized governing power of the mainland political system. The structure of the Basic Law provides for the clear separation of powers. Under Chapter IV, the provisions for political structure are divided into sections according to the governmental bodies, in which the institutions and power of the executive, legislative and judiciary branches are distinctively outlined.

Headed by the Chief Executive (BL 43), Government is the executive authority of the Hong Kong SAR (BL 59), while the Legislative Council is the legislature (BL 66) and the judicial power is exercised by the courts at all levels (BL 80).

A simple way of putting the three powers into perspective: "law is created by the legislature, enforced by the executive and interpreted by the judiciary." (McInnis, 2007) In order to avoid abuse of powers by any individual or any cohesive group, no branch should exercise the power(s) of other branches and no individual should be a member of more than one branch at the same time.

"There seems to be no current constitutional system which adopts this complete separation of powers. Some of the early American States and the French constitution of 1791 tried to strictly give effect to this doctrine but failed. The strict doctrine is only a theory and it has to give way to the realities of government where some overlap is inevitable. But while permitting this overlap to occur, a system of checks and balances has developed (and needs to continue to develop)." (Carney, 1993)Thus, it is noted that in practice, overlaps do occur and it is the checks and balances scheme inherent in the doctrine of separation of powers that ensures procedures are in place to allow one branch to limit the powers of another, thus, a balanced governance system can be maintained.

Executive-Legislative relationshipThe executive-legislative relationship in Hong Kong is political in nature. While the executive branch represents the interests of the Government and is responsible to the Central People's Government, the legislative branch is represented by the Legislative Council (LegCo) which is comprised of 30 members from geographic constituencies and 30 from functional constituencies with backgrounds of various political parties. While there are formal distinctions between the legislative and executive branches, the two are delicately connected.

The LegCo's main functions are to enact, amend or repeal laws; examine and approve budgets, taxation and public expenditure and monitor the work of the Government, including debating the policy addresses of the Chief...
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