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Monday, September 07, 2020, 10:08
'Separation of powers' peddlers dishonestly mixing up concepts
By Xiao Ping
Monday, September 07, 2020, 10:08 By Xiao Ping

Nobody knows how many times the topic between “executive-led” and “separation of powers” has been publicly debated in Hong Kong over the years, despite the fact the Basic Law of the Hong Kong Special Administrative Region clearly prescribes the former as a part of the system design for the HKSAR. As such, one cannot help but wonder why some people are so obsessed with “separation of powers”, which is apparently a nonissue in Hong Kong. The reason is simple: Some people have dishonestly mixed up concepts, confusing the executive-led governance, which is characteristic of Hong Kong’s unique system design, with a general concept of relationships among the three branches of power. With the premise of the matter replaced in bad faith, the conclusion is easily twisted to confuse the underinformed.

The simultaneous existence of executive, legislative and judicial powers is commonplace in modern societies today. Their responsibilities are different; hence the different ways they are exercised. That is why countries, including some autonomous regions, set specific rules on these powers in their constitutional documents. However, such system arrangements are not interchangeable with the concept of “separation of powers” in political science. The existence of three branches of power does not mean they automatically constitute a “separation of powers” governance model to fit a theoretical concept in political science; otherwise, it would result in one singular governance model for all states and regions under the sun.

It (the executive-led model) is more often than not a top-down governance system aimed at ensuring that policies are carried out faithfully and smoothly. It is therefore popular among unitary states. The executive-led model works for national as well as regional governments

Besides “executive-led” and “separation of powers”, there is also the “legislative-led” governance model. The United States, for example, prides itself on “separation of powers” and puts emphasis on maintaining checks and balances among the three branches of power. The United Kingdom, meanwhile, has chosen legislative-led governance, characterized by the parliamentary majority forming the cabinet, which answers to the Parliament. In the UK, the Parliament is the highest body of state power and can assume the right of final adjudication when necessary. Since the legislative and judicial powers are not subordinate to each other, the legislative-led and “separation of powers” are suitable for national governments, provided they are independent sovereign states and completely autonomous.

The executive-led model is different. It is more often than not a top-down governance system aimed at ensuring that policies are carried out faithfully and smoothly. It is therefore popular among unitary states. The executive-led model works for national as well as regional governments. After China, a unitary state, resumed the exercise of sovereign rule over Hong Kong, it was only natural for the HKSAR to be incorporated into the national governance system, which is not in conflict with the high degree of autonomy enshrined in the Basic Law. According to Article 12 of the Basic Law, Hong Kong is a special administrative region under direct jurisdiction of the Central People’s Government. It is not an independent political entity. And its public powers are granted by the Central People’s Government. That is why its governance model is executive-led instead of having a “separation of powers”.

Although the Basic Law of the HKSAR does not use the term “executive-led”, it highlights the dominance of the executive branch by elaborating on the chief executive, the executive authorities, the legislature, the judiciary, district organizations and public servants, in that order, in Chapter IV, which describes the HKSAR’s political governance system. That apparently means that executive power is higher than other powers in Hong Kong, unlike many other countries or regions, where the legislature comes before the executive wing in their constitutional documents. Deng Xiaoping once said many years ago that “it is inappropriate” to use “separation of powers” or Britain’s parliamentary system as the standard of democracy. During deliberation over the draft Basic Law of the HKSAR by the National People’s Congress in March 1990, the head of the Drafting Committee of the Basic Law explained that the relationship between the executive and legislative branches of the future HKSAR government “should be checks and balances as well as collaboration”. Putting emphasis on executive-led governance was not intended to let the executive branch intervene in legislative and judicial affairs, but rather ensure administrative efficiency and prevent the rise of a “vetocracy”. The political system is the most important part of social management and administration. What might those who are trying to switch the HKSAR’s governance model attempt to achieve? The first thing that comes to mind is to turn Hong Kong into an independent political entity that will break away from the constitutional arrangement of “one country, two systems” and deny the central authorities their overall jurisdiction over Hong Kong. That is extremely dangerous, to say the least. By joining the latest debate over “separation of powers” in Hong Kong, Chief Executive Carrie Lam Cheng Yuet-ngor has demonstrated her will and determination to set the record straight on this constitutional matter.

The author is a veteran current affairs commentator. 

The views do not necessarily reflect those of China Daily. 

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