VOLUME
5:2
December 2018
279-567
  • THE JUDICIAL PERSPECTIVE OF “SEPARATION OF POWERS” IN THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA

    PY Lo* and Albert HY Chen**
Abstract

Hong Kong, a former British colony, has been a Special Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.

Keywords
Hong Kong; People’s Republic of China; Basic Law; separation of powers; courts; non-intervention; legislative proceedings; deference; political system; executive-led government
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Introduction

Hong Kong was a British colony or dependent territory between 1842 and 1997. Since 1 July 1997, Hong Kong reverted to the People’s Republic of China (PRC), which resumed the exercise of Chinese sovereignty over the territory through the establishment of a Special Administrative Region (SAR) and the specification of the economic, political, social and legal systems of the SAR by the enactment of a law known as the Basic Law of the HKSAR1 pursuant to art.31 of the Constitution of the PRC.2 The reversion of Hong Kong from British administration to Chinese sovereignty was based upon the Sino-British Joint Declaration 1984 that the two parties negotiated between 1982 and 1984.3 The Joint Declaration 1984 sets out the basic policies of the PRC regarding the HKSAR upon the resumption of exercise of sovereignty.