One Country, Two Stances on Separation of Powers: Tensions Over Lack of Parallelism between the National and Subnational Levels

Translated for publication in Chinese as "對權力分立的一國兩態:國家級與次國家級對應闕如引致的張力" in Zhu Guobin (ed.) "Relationship between the Central Authorities and the Hong Kong Special Administrative Region" (City University Press, 2018).

University of Hong Kong Faculty of Law Research Paper No. 2018/040

21 Pages Posted: 2 Jul 2018 Last revised: 23 Oct 2018

See all articles by Danny Gittings

Danny Gittings

University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education; The University of Hong Kong, Faculty of Law

Date Written: October 26, 2017

Abstract

Experience in numerous jurisdictions with separate constitutional documents at the national and subnational levels demonstrates a strong pattern of parallelism in the type of structure adopted for the executive-legislative relationship at both levels, even when the constitutional structure at the two levels differs significantly in other respects. Whichever of the many variants of separation of powers is adopted at the national level tends to be mirrored at the subnational level, even when there is no constitutional requirement for such parallelism. Tensions are not uncommon in the relatively few jurisdictions where the structures at the two levels do diverge, sometimes resulting in changes at either the subnational or national level to bring the structures at the two levels more closely into parallel.

The Hong Kong Special Administrative Region occupies an unusual place in this pattern. On the one hand, under the one country two systems principle it is a fundamental principle of constitutional design that the system which applies at the subnational level must differ in important respects from the national system that exists in most other parts of China. Nonetheless, the central authorities strongly expressed preference for the implementation of a system of executive-led government in Hong Kong would appear to reflect a wish to parallel, at least in part, the system that applies in practice at a national level.

This paper argues that, given the tensions that invariably arise from a lack of parallelism between the national and subnational levels, it is not surprising to see friction over the Hong Kong courts’ finding of the existence of a system of separation of powers under the Hong Kong Basic Law, a system expressly rejected at a national level. While some degree of tension may be inevitable, it could be better managed than has been the case so far, particularly by providing greater clarity about which variant of separation of powers exists under the Hong Kong Basic Law.

Keywords: Separation of Powers, Federalism, Sub-national Politics, Non-Democratic Regimes, Hong Kong

JEL Classification: K

Suggested Citation

Gittings, Danny, One Country, Two Stances on Separation of Powers: Tensions Over Lack of Parallelism between the National and Subnational Levels (October 26, 2017). Translated for publication in Chinese as "對權力分立的一國兩態:國家級與次國家級對應闕如引致的張力" in Zhu Guobin (ed.) "Relationship between the Central Authorities and the Hong Kong Special Administrative Region" (City University Press, 2018).; University of Hong Kong Faculty of Law Research Paper No. 2018/040. Available at SSRN: https://ssrn.com/abstract=3195754

Danny Gittings (Contact Author)

University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education ( email )

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Hong Kong

HOME PAGE: http://hkuspace.hku.hk/about-us/people/chl

The University of Hong Kong, Faculty of Law ( email )

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Hong Kong
Hong Kong

HOME PAGE: http://hub.hku.hk/cris/rp/rp01854

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