There are extensive discussions in the last week over the political structure of the Hong Kong Special Administrative Region (HKSAR). A number of individuals and organisations have expressed their views. Some refer to the concept of separation of powers. However, even international academic research shows that this phrase may connote different interpretations. Instead of focusing on the labelling, I wish to take this opportunity to explain, on the basis of the provisions of the Basic Law, the constitutional order of the HKSAR in substance. Our political structure is an executive-led system headed by the Chief Executive. The executive authorities, the legislature and the judiciary perform their respective functions under the executive-led system in accordance with the Basic Law and complement each other with a view to upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong.
First of all, it is important to understand that China is a unitary state. According to the constitutional structure of China, power comes from the Central Authorities. The system of people’s congress is China’s political system. The HKSAR was established by a Decision made by the National People’s Congress (NPC) in accordance with the Constitution. The Basic Law was also adopted by the NPC. The HKSAR was empowered to discharge its duties by the NPC through the Basic Law. According to Articles 43 and 60 of the Basic Law, the Chief Executive shall be the head of the HKSAR and the head of the Government of the HKSAR. As head of both the HKSAR and its government, the Chief Executive shall exercise the powers and functions conferred by the Basic Law to discharge his or her duties. Article 48 states that the Chief Executive shall lead the Government of the HKSAR, sign bills, decide on government policies and etc. This fully reflects the executive-led style of governance in our structure.
Secondly, with a common goal of building a better Hong Kong, the provisions of the Basic Law set out the different powers and functions of the executive authorities, the legislature and the judiciary. In accordance with the Basic Law, the Government of the HKSAR is responsible for formulating policies and introducing bills. The Legislative Council of the HKSAR shall enact laws as required, which will be implemented or enforced by the Government. The Government is also responsible for drawing up budgets to be scrutinised by the Legislative Council. It is worth noting that members of the Legislative Council in introducing bills relating to government policies have to obtain a written consent of the Chief Executive. Clearly, under the political structure set out in the Basic Law, the executive and legislative branches are inter-related in performance of functions, but the powers of introducing bills mainly rest with the executive.
The Basic Law empowers the courts of the HKSAR to exercise judicial power independently, including that of final adjudication. Some have raised concerns over the judicial independence in the light of the political structure of the HKSAR. But these concerns are totally unfounded. Article 85 guarantees that the courts of the HKSAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions. At the same time, the Basic Law also provides that judges of the courts of the HKSAR shall be appointed by the Chief Executive on the recommendation of an independent commission. Although the executive authorities enjoy greater power in policy making under the political structure of the HKSAR, they must abide by the law. Their decisions are also subject to judicial challenges which will be handled by the court independently based on applicable laws and evidence.
The Basic Law safeguards the exercise of judicial power by members of the judiciary without interference. According to the late Chief Justice of the United Kingdom, Lord Bingham, the meaning of “judicial independence” is “independent in the sense that they (adjudicators) are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial” (remarks). The political structure laid down in the Basic Law fully reflects the principle of rule of law and the essence of judicial independence.
A proper understanding of the political structure from the perspective of the constitutional order of the HKSAR clearly shows our system is based on an executive-led structure. We should all refrain from looking at the labelling of a concept, on the contrary, we have to appreciate its intrinsic meaning so as to avoid any unwarranted disputes.
Remarks: See “The Rule of Law” Cambridge Law Journal, 66(1), P.67-85, March 2007.
September 5, 2020