Recently, revisions to school textbooks made in accordance with requirements of the Education Bureau has sparked a controversy surrounding the separation of powers. A few days ago, the Hong Kong and Macau Affairs Office and the Liaison Office issued a statement, saying the claims that the Hong Kong SAR practices the separation of powers was wrong. They even said separation of powers “has never existed” in Hong Kong, adding that on April 16, 1987, when Deng Xiaoping met members of the Hong Kong Basic Law Drafting Committee, he dismissed the idea of separation of powers.

Nonetheless, many commentators have come up with a slew of evidence indicating that the SAR has always implemented the separation of powers. In fact, the Sino-British Joint Declaration signed in 1984 clearly stipulates the relationship between the executive, legislative and judicial branches. In the first section of Annex 1, it is said that “the executive authorities shall abide by the law and shall be accountable to the legislature”. The third section says “the courts shall exercise judicial power independently and be free from any interference”. The second section notes that Hong Kong “laws (i.e. the common law...) shall be maintained”. This means the principle of the separation of powers under the common law system already finds expression in the Joint Declaration.

The Hong Kong Basic Law was formulated in accordance with China’s fundamental policy for Hong Kong as set out in the Joint Declaration. The Drafting Committee began to operate in mid-1985 and the media frequently reported about its work. At the time, there were reports run by newspapers from different sides of the political spectrum pointing out that the separation of powers was the consensus of Hong Kong society. So why is the separation of powers not mentioned in the Basic Law? This has something to do with Deng’s remark that was brought up recently by the Hong Kong and Macau Affairs Office and the Liaison Office.

At the time, the Drafting Committee held a meeting in Beijing, and the Special Group Concerned with the Political Structure, to which I belonged, had come up with a draft on the provisions on the SAR’s political system. That draft mentioned the separation of powers. But then we were summoned by Deng. During a meeting, he noted that “if 50 years is not enough, another 50 years can be added”. He also said the prerequisite for the implementation of democracy in mainland China was that there was a “well-off society” as the foundation and the country’s GDP had doubled. Nonetheless, he added: “The Western system cannot simply be copied... We in mainland China have socialist democracy, which is different from the concept of bourgeois democracy. In Western democracy, there is the separation of powers, multi-party elections and so on... We in mainland China don’t do multi-party elections, separation of powers or two councils.” I still remember that Deng cited the U.S. system as an example, saying that because the U.S. had separation of powers, it had “three governments”.

We were perplexed by Deng’s rationale, but as the leader made the said comment, the Drafting Committee could not but take out wordings concerning the separation powers from the draft provisions while making meticulous efforts to make sure the concept of separation of powers found expression in the provisions of the Basic Law. Old news reports indicated that after Deng made the said comment, Louis Cha, convenor of the Special Group Concerned with the Political Structure, also noted that although Deng said the separation of powers practiced by other countries was not applicable to China, the inapplicability did not cover Hong Kong, and that “the Special Group has not changed its consensus that in the future SAR, there will be judicial independence, and that there will be checks and balances and cooperation between the executive and the legislature”. On March 28, 1990, when Ji Pengfei, chairman of the Basic Law Drafting Committee, issued a statement on the Basic Law (Draft), he emphasized that “the relationship between the executive and the legislature should be one of checks and balances and cooperation”, and that “in order to maintain the stability of Hong Kong, the chief executive should have real power and yet his power should be checked”. In other words, the legal status of the chief executive can never be above the three powers, but must be checked.

As such, it is obvious that the political system of the SAR was established in accordance with the principle of the separation of powers. For example, Article 64 of the Basic Law requires the government to abide by the law and be accountable to the Legislative Council (LegCo), which effectively signifies the LegCo’s checks and balances on the executive branch. Article 35(2) states that “Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel”. This is a form of checks and balances of the judiciary on the executive branch.

What is more, after the handover both former chief justice Andrew Li and current Chief Justice Geoffrey Ma have remarked that Hong Kong implemented the separation of power. Various judgments laid down by the Court of Final Appeal stated that the separation of powers was reflected in the provisions of the Basic Law. Under the common law system, the legislative intent of all legal provisions must be determined by courts. When looking at the legislative intent of a legal provision, a court will take into account the purpose of the legislation and the debates and interpretations surrounding the law at the time it was enacted. The most authoritative view on the legislative intent of the Basic Law is no doubt the one contained in the statement of Ji Pengfei as mentioned above.

In Leung Kwok-hung v The President of the Legislative Council ((2014) 17 HKCFAR 689), then lawmaker Leung applied for a judicial review of then LegCo chairman Jasper Tsang’s decision to end a filibuster against a government electoral amendment in May 2012. The Court of Final Appeal ruled that “it is preferable now to regard the relationship between a legislature and the courts as an outcome of the application of the doctrine of the separation of powers. This doctrine is a common law doctrine which, in the case of Hong Kong, is reinforced by the constitutional separation of powers provided for by the BL (Basic Law)... In construing and applying the provisions of the BL, it is necessary not only to apply common law principles of interpretation but also principles, doctrines, concepts and understandings which are embedded in the common law. They include the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts... The important responsibilities of LegCo, notably its law-making function, require, as with other legislatures, that it should be left to manage and resolve its own internal affairs, free from intervention by the courts”. Therefore, the court was of the view that based on the principle of the separation of powers, it should not interfere in the matter concerning whether the LegCo chairman had appropriately exercised his power.

Additionally, the judgment summary of the Congo case ((2011) 14 HKCFAR 95), said: “The successful transition of Hong Kong from a British Colony to a Special Administrative Region of the People’s Republic of China under the principle of 'one country two systems” has frequently been acknowledged. An essential component of that success is the fact that this is a society with a strong commitment to the rule of law and its concomitants of an independent judiciary and respect for the separation of powers". Regarding the Congo case, the Court of Final Appeal had requested that the National People’s Congress Standing Committee (NPCSC) interpret the relevant clauses of the Basic Law, and the NPCSC interpreted the clauses only after it had understood and agreed to the content of the judgment summary. In other words, the central government also recognized Hong Kong’s separation of powers.

If the separation of power “has never existed” in Hong Kong, then it is not only Hong Kong courts that have erred but also the NPCSC!

(Martin Lee is a barrister and founder of Hong Kong’s Democratic Party.)

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