The Judicial Perspective of 'Separation of Powers' in the Hong Kong Special Administrative Region of the People's Republic of China

Abstract

Hong Kong, a former British colony, has been a Special Administrative Region (SAR) of the People’s Republic of China since 1997 with its own highly autonomous legal and judicial systems based on English common law. Applying common law principles, the HKSAR courts have conceptualised “separation of powers” as a feature of the Basic Law — the HKSAR’s constitutional instrument — and the Rule of Law in Hong Kong. This article demonstrates how HKSAR courts have used “separation of powers” to describe and regulate the relationship among the institutions of government and as an operating valve of judicial non-intervention or deference vis-à-vis other branches of government. Towards the end of this article, the judicial narrative that embraces “separation of powers” is contrasted with a political narrative promoted by mainland Chinese officials and scholars that doubts the “separation of powers” in the HKSAR’s political system and advocates instead “executive-led government”.

Keywords: Hong Kong, People’s Republic of China, Basic Law, Separation of Powers, Courts, Non-Intervention, Legislative Proceedings, Deference, Political System, Executive-Led Government

JEL Classification: K10, K30, K40