In The Context Of Chinese Constitutionalism And The Hong Kong Basic Law: Is 'Separation Of Powers' A Delusionary Product?

AuthorFu Kwong Or
Pages202-227
202 TSINGHUA CHINA LAW REVIEW [Vol. 13:201
IN THE CONTEXT OF CHINESE CONSTITUTIONALISM AND
THE HONG KONG BASIC LAW: IS “SEPARATION OF
POWERS” A DELUSIONARY PRODUCT?
Fu Kwong Or
I. INTRODUCTION
In late August 2020, the Hong Kong Education Bureau removed a Non-
Permanent Judge’s presentation of the doctrine of “Separation of Powers” from
official-approved textbooks.1 Later, the Chief Executive of the Hong Kong
Special Administrative Region of the People’s Republic of China (HKSAR),
Carrie Lam Cheng Yuet-ngor (Carrie Lam), told the media that there was no
separation of powers in Hong Kong.2 Carrie Lam further elaborated that the
disputes among the Hong Kong society over the “Separations of Powers”
reflected a misunderstanding of the HKSAR’s political framework under “One
Country, Two Systems” (OCTS) as prescribed under The Basic Law of the
Hong Kong Special Administrative Region of the People’s Republic of China
(the Basic Law).3
In early September, Ronny Tong Ka-wah, Senior Counsel and Executive
Councillor, said that there was no “Separation of Powers” in Hong Kong. He
further said that in Hong Kong’s constitutional order under the Basic Law, it is
inappropriate to generalize the system using terms that are commonly used to
describe the governance of a country.4 Also, the Liaison Office of the Central
People’s Government in the HKSAR clarified that Hong Kong’s political
system is “executive-led”, refuting the allegation that Hong Kong exercises
“Separation of Powers” and expressing support for the Chief Executive.5
Later, in September 2020, the Hong Kong Bar Association (HKBA)
released a statement titled “Statement of the Hong Kong Bar Association
1 Tony Cheung & Chris Lau, Hong Kong Leader Carrie Lam Sides with Education Chief on No
“Separation of Powers” in City, Defends Move to Delete Phrase from Textbooks, SOUTH CHINA MORNING
POST (Sept. 1, 2020), https://www.scmp.com/news/hong-kong/education/article/3099729/hong-kong-leader-
carrie-lam-insists-there-no-separation.
2 Kathleen Magramo & Ng Kang-chung, Hong Kong Cabinet Adviser Disagrees with Lam on
“Separation of Powers” in Textbooks, if Only to Show Students Why Focusing on Issue Is “Meaningless,
SOUTH CHINA MORNING POST (Sept. 2, 2020), https://www.scmp.com/news/hong-kong/education/article/30
99868/hong-kong-cabinet-adviser-disagrees-carrie-lam-separation.
3 HK Has Never Adopted Western “Separation of Powers” Concept: State Council, GLOBAL TIMES
(Sept. 7, 2020), https://www.globaltimes.cn/content/1200196.shtml.
4 Wen Gang, “Separation of Powers” Wrong Phrase for HK, CHINA DAILY (Sept. 3, 2020),
https://global.chinadaily.com.cn/a/202009/03/WS5f50467ba310675eafc57365.html.
5 Huaxia, Liaison Office of Central Gov’t in HKSAR Clarifies Hong Kong’s Political System as
“Executive-led”, XINHUA NET (Sept. 7, 2020), http://www.xinhuanet.com/english/2020-09/07/c_139349904.
htm.
2020] CHINA LAW UPDATE 203
(“HKBA”) about the Separation of Powers Principle”, 6 expressing its
concerns about the remarks made by the Chief Executive and the Secretary for
Education, which suggested the absence of the principle of Separation of
Powers in the constitutional framework of the HKSAR.
In fact, the above “disputes” can be roughly generalized as a swing between
a dichotomy of “functionalist approach” and “formalist approach” on the
interpretation of the doctrine of the separation of powers.7 And yet, such rough
generalization is still hovering above the liberalist ideology of power-restraint.
What this essay, however, seeks to contribute is to go beyond the dimension of
the existing ideology, and to explore any possible space of re-construction. As
such, one would inevitably ask the following questions: (1) What is Separation
of Powers? (2) Where and when did such a concept originate? Thus, what
philosophical grounds does such a concept rely upon? (4) If the doctrine of
Separation of Powers is to describe the checks and balances of a sovereign
country, then, what is the role of such a concept in the HKSAR? (5) After
examining the constitutional text of the HKSAR, how should one explain the
macro- and micro-dynamics of power relations in regards to the institutional
organs in Hong Kong? (6) Fundamentally, has such a concept of Separation of
Powers ever existed in Hong Kong or is it only a delusionary product of the
discourse of liberalism? (7) Lastly, what are the implications to the HKSAR
under China’s socio-legal-political architecture of its Constitutionalism in
recent decades?
In the following passage, the author explores the above issues by adopting
the Foucauldian perspective and the academic approach of both Professor Chen
Duanhong (端洪) and Professor Jiang Shigong (强世功) of the Peking
University Law School.
II. LIBERALIST TRIAS POLITICA
A. The Origin of the Doctrine
The liberalist notion of trias politica has existed since the seventeenth
century.8 The doctrine serves to divide a government’s responsibilities into
distinct branches. Those divided branches must act independently and limit any
6 Hong Kong Bar Association, Statement of the Hong Kong Bar Association (“HKBA”) About the
Separation of Powers Principle (Sept. 2, 2020), https://www.hkba.org/sites/default/files/20200902%20-%20
HKBA%20statement%20on%20separation%20of%20powers%20%28E%29.pdf.
7 For formalist, it tends to stick with the approaches upheld by textualist/originalist; for functionalist, it
tends to focus on the pragmatic, dynamic, and hermeneutical approaches. The rules-standards cycling of the
legal concepts mainly rest upon the inherently conflicting nature between “rules” and “standards”, while rules
are restrictively construed, standards leave rooms for novel and unanticipated considerations. See Aziz Z. Huq
& Jon D. Michaels, The Cycles of Separation-of-Powers Jurisprudence, 126 YALE L.J. 342, 346.
8 Arnold L. Burns & Stephen J. Markman, Understanding Separation of Powers, PACE L. REV., Apr.
1987, at 575, 578.

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