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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.
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,


Bibliography: Textbooks/journal articles Dobinson, Ian and Roebuck, Derek Introduction to Law in the Hong Kong SAR, Sweet & Maxwell, 2001
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