Critically Evaluate the Extent the Doctrine of the Separation of Powers Underpin the Basic Law.

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Critically evaluate the extent the doctrine of the separation of powers underpin the Basic Law.

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INTRODUCTION

According to Wesley Smith, “The doctrine of separation of powers is a general technique for limiting the ability of government officials to wield excessive powers to the detriment of citizens’ rights. The three types of power (the legislative, executive and judicial) should be distributed amongst three distinct branches of government; no branch should exercise more than one variety of function, and no person should belong to more than one branch. Each branch is balanced by the others, some kind of parity is established between them.”[1]

This paper serves to evaluate the extent separation of powers underpin the Basic Law. It will elucidate Hong Kong’s political structure and the distribution of powers among the three Government branches. It will examine how they interact and the checks & balance as enshrines in the Basic Law.

EXECUTIVE AUTHORITIES & LEGISLATURE

A. Basic Structure (Basic Law Chapter IV)

Government of HKSAR shall be the executive authorities of the Region (Article59). The head of the Government and HKSAR shall be the Chief Executive (CE), accountable to CPG and HKSAR (Article43, 60).

Executive Council (ExCo) assists CE in policy-making (Article 54). CE presides over the ExCo and he shall consult it on nearly all matters, although not obliged to follow the advices (Article 56).

Legislative Council (LegCo) shall be the legislature (Article 66).

B. Political Accountability

The Government is accountable to LegCo (Article 64). LegCo can scrutinize the performance of government in the following areas:

1. Law Enactment

CE consults ExCo before introducing bills (Article 56). Government drafts and introduces bills, motions and subordinates legislation (Article 62(5)). LegCo enacts, amends or repeals laws (Article 73(1)). CE signs bills passed by LegCo and promulgates laws (Article 48(3)). Government implements the law (Article 64).

On one hand, power for LegCo to introduce bills is limited as CE’s consent is needed for introducing bills relating to Government policies (Article 74); and all bills take effect only if signed and promulgated by the CE (Article 76). On the other hand, all bills do require the support of a majority of LegCo members to become law. Once a bill is passed, CE may refuse to sign it but if LegCo passed it again with a two-thirds majority, CE must sign (Article 49).

2. Budgets and Final Accounts

Government draws up and introduces budgets and final accounts (Article 62(4)). LegCo examines and approves budget (Article73(2)). CE signs budgets passed by the LegCo and report to the CPG for final record (Article 48(3)).

3. Taxation & Public Expenditure

Government shall obtain approval from the LegCo for taxation and public expenditure (Article 64). LegCo approves taxation and public expenditure (Article 73(3)).

4. Policy Address

Government presents regular policy addresses to LegCo and answers questions raised by its members (Article 64). LegCo receives and debates the policy addresses of the CE (Article 73(4)).

Check & Balance

If CE refuses to sign a bill passed by the LegCo for the second time or LegCo refuses to pass a budget or any other important bills, CE can dissolve LegCo (Article 50).

CE must resign when the new LegCo insists on passing the original bill in dispute with a two-thirds majority and CE still refuses to sign or the new LegCo still refuses to pass the original bill in dispute (Article 52).

Note that government bills need only a simple majority vote to pass in LegCo, whereas private bills need majority votes from both the functional constituency and geographical constituency (Annex II). It is easier for a government bill to be passed than a private bill. Also, it is...
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