【明報專訊】Separation of powers(三權分立) means that the administrative, legislative, and judicial branches of government operate separately and their powers are subject to checks and balances. It is regarded as the cornerstone of democratic government.

The Basic Law

The words ''separation of powers'' are not found in the Basic Law, though it does contain quite a lot of descriptions of the powers of the administrative, legislative, and judicial branches of government. They include independent judicial power and final adjudication, the court's power to regulate the behavior of the administrative and legislative branches of government through judicial review, the Chief Executive's power to dissolve the Legislative Council under certain circumstances, the Legislative Council's right to impeach the Chief Executive if he or she is found to have conducted serious breach of law or dereliction of duty and if he or she refuses to resign. Some scholars believe that such an arrangement complies with the principle of the separation of powers.

Democratic Centralism

The National People's Congress has legislative and supervisory power as well as authority to make decisions on important issues, elect officials and appoint officials. Furthermore, courts are led and monitored by the Communist Party of China. Some scholars believe that China has a judicial system in which the Communist Party is superior to the law.

Executive-led governance vs. separation of powers

However, in 2015 Zhang Xiaoming(張曉明), the then Director of the Liaison Office, said that separation of powers was not enforced in Hong Kong, and that it had an ''executive-led'' system in which the executive branch, led by the Chief Executive, was in mutual-restriction and mutual cooperation with the legislative branch. The Chief Executive, Zhang said, had a special legal status that is ''superior''(超然). Joseph Chan Cho Wai(陳祖為), a scholar from the University of Hong Kong, said that judging from the Basic Law the Hong Kong SAR obviously had a political system with separation of powers, though the system favoured the executive branch.

Han Zheng(韓正), the Chinese Vice Premier who is responsible for Hong Kong and Macao affairs, talked about Hong Kong's situation in November 2019. He said that stopping the unrest, curbing violence and restoring order remained the urgent task at hand, and that it was ''a shared responsibility of the executive, legislative and judicial branches as well as the greatest consensus of Hong Kong society''. Tanya Chan, a lawmaker who is also a barrister, said that separation of powers had long been enforced in Hong Kong. She said that judges would only consider factual and legal evidence when hearing a case, while the Legislative Council should monitor rather than assist the government. Priscilla Leung, another lawmaker, said that it was not the case that the three branches of government as mentioned by Han could not cooperate.

Translated by Terence Yip

[通通識 第625期]