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What really is separation of powers?


Editor's note: The following is an excerpt of written response by Professor David Law on recent remark by Chief Executive Carrie Lam, who rejected the notion of separation of powers. Prof. Law is the Sir Y.K. Pao Chair in Public Law from the Faculty of Law, University of Hong Kong.)

It does sound like Carrie Lam is deeply confused or deeply mistaken. The allocation of power between national and subnational governments is *not* the same as “separation of powers”. “Separation of powers” traditionally refers to the separation of powers among the legislative, executive, and /or judicial branches. In this sense, the concept dates back to Montesquieu. A parliamentary system has only a bipartite (two-part) separation of powers, between the legislative and executive (which are combined together, because the Prime Minister and Cabinet are executive but also sit in the legislature) and the judiciary, which is separate.

Illustration by CitizenNews

In other words, separation of powers is a horizontal relationship, among equal institutions that perform different functions.

But the relationship between Beijing and HKSAR is a vertical relationship, between a government that rules over broader territory, and a government that rules over narrower territory.

That is about dividing power on the basis of geography (national vs subnational) and subject matter (e.g. education, environmental protection, immigration), not on the basis of functions (executive, legislative, judicial). So we do not call it “separation of powers”.

When people discuss the allocation of power between national and subnational governments, there are different terms they use.

The main one is federalism, where a country is defined as a union of political units. But even in countries that do not call themselves federal, there is almost always still some division of responsibilities — even in a tiny country like Bhutan with less than 700,000 people total!

Some people talk about the degree of decentralization, or “subsidiarity,” or “devolution of powers”. But “separation of powers” is not the correct term.

Hong Kong is supposed to have a tripartite (three-part) separation of powers. First, the chief executive is NOT a member of the Legislative Council (LegCo), so the executive power is separated from the legislative power. Second, the courts are obviously separate from both LegCo and the Chief Executive.

It is also important to understand the relationship between “separation of powers” and “checks and balances”. These are related concepts that are often used together, but they have different meanings.

The US system combines both separation of powers AND checks and balances. Separation of powers means that each branch is supposed to exercise a different type of power. But checks and balances means that the different branches are supposed to check and limit each other. If the boundaries between the 3 branches are totally clear, then you have separation of powers, but no checks and balances: if the separation of the 3 branches is totally clear, then each branch is supreme within its respective domain, and the 3 branches would not challenge each other regularly.

In contrast, if the 3 branches are given overlapping powers that enable them to compete with each other and to limit or stop each other, then you have checks and balances *as well as* separation of powers.

In the US, for example, Congress passes laws, but the President can veto them. This is giving some power over lawmaking (a legislative function) to the executive.

Also, the President can appoint senior executive officials, and appointment of executive officials is an executive power, but the Senate (part of the legislature) must agree to the appointments. So this is deliberately designed to be a system of checks and balances COMBINED with separation of powers, rather than just strict separation of powers.

Likewise, in Hong Kong, the CE can refuse to sign bills passed by LegCo into law, so she has veto power. In other words, the executive has some legislative-type powers.

Here is another example: again, it is usually an executive power to appoint officials. However, LegCo has the power to approve the CE’s selection of CFA judges. In other words, the legislature has some executive-type powers.

So this means Hong Kong has checks and balances *as well as* separation of powers, with 3 branches instead of 2. It is thus much closer to the US-style separation of powers system than the UK parliamentary system.


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