The notion of “separation of powers, with mutual checks and balances among them” is the cornerstone of democracy and the rule of law of Hong Kong under the Basic Law. Furthermore, it is also a government system widely adopted by civilized and open societies in the world to safeguard themselves from over-centralization of power and the possible emergence of tyrannies. Carrie Lam’s abrupt claim that “the separation of powers doesn’t exist in Hong Kong” is simply at odds with the common belief of the general public of the city. Perhaps what she really meant is: from now on, the separation of powers will no longer be applicable to Hong Kong; instead, there will only be the “executive-led” approach blessed by the central government. In other words, her statement was supposed to be more a political announcement than a constitutional debate.

From the legal perspective, it goes without saying that the constitutional framework of the Special Administrative Region (SAR) is based on “the separation of powers, with mutual checks and balance among them”. In the Sino-British Joint Declaration Annex 1 on “Elaboration by the government of the People’s Republic of China of its basic policies regarding Hong Kong”, the third paragraph of Section I outlines that “the legislature of the Hong Kong SAR shall be constituted by elections. The executive authorities shall abide by the law and shall be accountable to the legislature”. This has clearly spelt out that the executive authorities are under the supervision as well as checks and balances of the elected legislature, and the former has to comply with the court’s rulings on the legality of its behaviors. Not a single word about “executive-led” or “legislature-led” is in fact visible in Annex 1 or the Basic Law.

When it comes to the Basic Law, it is true that there does not exist the exact wording of “the separation of powers”. Nevertheless, in Article 2 of Chapter I, it states that the SAR, in accordance to the Basic Law, “enjoys executive, legislative and independent judicial power, including that of final adjudication”. It requires just common sense to know that the executive, legislature and judiciary mentioned are the three powers. And in Sections 2, 3 and 4 of Chapter IV, the formations, responsibilities and limitations of each power have been individually defined, with the three powers identified as separate and independent entities that check and balance one another. So the claim that “the separation of powers doesn’t exist in Hong Kong” and the misrepresentation of “the separation of powers” as “the division of powers” are simply arbitrary and ridiculous.

And it is universal understanding that the “separation of powers” refers to the three powers, namely the executive, legislature and judiciary.

Back in 2014, in the case concerning Leung Kwok Hung, the corrigendum issued by the Court of Final Appeal has made it clear that “the separation of power…is a common law doctrine which, in the case of Hong Kong, is reinforced by the constitutional separation of powers provided for by the Basic Law”. Specifically, the Court referred to Sections 1, 2 3 and 4 of Chapter IV as well as Article 2 of Chapter I.

The above comes to be the most authoritative case concerning the separation, independence and mutual non-interference of the judicial and legislative powers. In reality, numerous judicial review cases have proved that while the executive organization is always bound by judgements of the courts, the latter never makes executive decisions. Relatively more debates have been aroused in terms of the relation between the executive body and legislature, which is understandable as it involves politics. Nevertheless, according to the Basic Law, it is never supposed to be “executive calling the shots whereas legislature just echoing”. Rather, it is more about “executive putting forward proposals whereas legislature making decisions”. And the coordination between the two is crucial so as to secure smooth processing and public endorsement of the outcomes.

It is beyond doubt that the separation of powers does exist in Hong Kong, even though there may be different views on or controversies over its actual implementation and effectiveness. But an abrupt denial of its existence is not only an outright overthrow of the Basic Law, but also an utter breach of the Joint Declaration’s commitment to the basic polices regarding Hong Kong. It is to pave way for the tyranny masterminded by the central government. And as far as our three powers are concerned, the legislature has already been seriously undermined, and it is foreseeable the judiciary is going to be hit in full strength.

(Margaret Ng Ngoi-yee is a barrister, writer and columnist in Hong Kong. She was a member of the Legislative Council of Hong Kong from 1995-1997; 1998-2012.)

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