Separation of Powers and China's Hong Kong

Abstract

Separation of powers is a doctrine indisputably ‘woven into the fabric’ of the Hong Kong Basic Law. However, it is a doctrine that needs to be interpreted and applied through a flexible framework which recognises that not all judicial, legislative, and executive functions will be necessarily exercised by a correspondingly named branch of government.

Based upon a re-examination of the origins of the doctrine, this thesis develops a rationale-based approach for the application of such a flexible framework to explain the allocation of certain governmental functions to non-correspondingly named branches of government. This approach takes the rationales of rule of law, checks and balances, efficiency and accountability which have traditionally underpinned separation of powers and applies them as objectives to help explain the allocation of judicial, legislative, and executive functions to the judicial, legislative and executive branches of government with a particular focus on those cases where this results in a specific function being allocated to a non-correspondingly named branch of government. Recognising that ‘tensions’ can sometimes arise between these objectives, this thesis develops a weighted balancing test to resolve any conflicts between these objectives in determining whether or not to allocate a particular function to a non-correspondingly named branch of government.

Using Hong Kong as a case study, this thesis demonstrates that many allocations of governmental functions to non-correspondingly named branches which pose such theoretical problems for separation of powers purists can be explained by the application of such a rationale-based approach. It argues that this offers a more coherent and structured framework for recognising the reality that some governmental functions are inevitably exercised by non-correspondingly named branches of government than the ad-hoc and sometimes unconvincing reasoning which appears in much of the modern case law and scholarship on the doctrine. In particular, this thesis demonstrates that what essentially amounts to the application of an efficiency rationale, although not previously identified as such, has been already applied in Hong Kong and other jurisdictions to help explain several allocations of functions which so trouble separation of powers purists—from the judicial functions exercised by some administrative tribunals to the delegated legislation issued by the executive.