The political system established under the Hong Kong Letters Patent and Hong Kong Royal Instructions during British rule was not one of “separation of powers”; neither is the one established under the Basic Law of the Hong Kong Special Administrative Region after reunification. Rather, both are executive-led systems. What sets them apart is that power was centralized in the executive branch before 1997, whereas for the executive-led model adopted after reunification, the executive and the legislature work in coordination with checks and balances.
In contrast with the Westminster model the United Kingdom had been practicing at home, it chose to centralize all power in the hands of the governors or even resorted to an authoritarian approach in its colonial rule over the territories it occupied overseas. In Hong Kong before reunification, the British monarch appointed the governor, who nominated and, upon the approval of the Foreign and Commonwealth Office, appointed members of both the executive and legislature as well as other senior officials. In effect, the governor centralized all power over both the executive and legislature in his hands. During some 150 years of British rule, Hong Kong’s political system transited from one allowing authoritarian executive power to one allowing the centralization of all power in the hands of the executive, and then to an executive-led model allowing elections on a very limited scale.
As a special administrative region of China, Hong Kong can only adopt an executive-led governance model. Separation of powers is out of the question
Chris Patten, the last governor of Hong Kong, launched a wave of radical political reforms during the transition period before the city’s return, including hastily expanded elections. In the name of accelerating democratic development, Patten was in effect trying to give more power to the legislature at the expense of the executive branch, creating trouble for executive-led governance after 1997.
Modern societies have three kinds of public power, namely the executive, legislative and judicial power; their relationship with each other varies across the globe. Hong Kong’s governance model has the shape of “separation of powers”, but the executive branch is vividly in a more authoritative position and plays a more active role in governance. The SAR government has the right of legislative initiative; government bills take priority on the agenda of the Legislative Council, reflecting the priority the executive branch enjoys over members of LegCo, whose bills need to undergo more procedures. According to Article 74 of the Basic Law, lawmakers cannot introduce bills relating to public expenditure, political structure or the operation of the government; they can introduce bills relating to government policies only after securing the written consent of the chief executive. Unfortunately, this article has not been effectively enforced. The executive branch can also impose checks and supervision on the judiciary: The chief executive has the authority to appoint and remove court judges in accordance with legal procedures. The chief executive also has the authority to remit or commute sentences meted out by judges; and the certificates issued by the chief executive on questions of fact concerning acts of state are binding on the courts.
In March 1990, when the National People’s Congress was deliberating the Basic Law, Ji Pengfei, chairman of the Drafting Committee of the Basic Law of the Hong Kong SAR, emphasized that the executive and the legislature should maintain checks and balances while coordinating with each other. To maintain Hong Kong’s stability and administrative efficiency, the chief executive must have real power that at the same time should be subject to checks and supervision. Distinct from the executive-led model, which centralized all power in the hands of the governors under British rule, the Basic Law prescribes a political system featuring an executive-led governance model, an independent judiciary and mechanisms to facilitate checks and balances between the executive branch and the legislature, which also work in coordination, with the aim of establishing an efficient government amid democratic participation and democratic supervision. Some scholars in Hong Kong refer to it as “separation of powers under an executive-led system”.
Executive-led, legislature-led and separation of powers are distinct models of governance. The United States’ system is a typical model of separation of powers. In the US Constitution, the Congress comes before the president and the judiciary. The UK operates politically under a legislature-led system or a parliamentary system, where the executive derives its power from the Parliament and is restricted by the Parliament. Both the legislature-led and “separation of powers” models are only suitable for sovereign states; they are not appropriate political structures for regional administrations under a central government. As a special administrative region of China, Hong Kong can only adopt an executive-led governance model. Separation of powers is out of the question.
The author is a veteran current affairs commentator.
The views do not necessarily reflect those of China Daily.
