I. Introduction

In late August 2020, the Hong Kong Education Bureau removed a Non-Permanent Judge’s presentation of the doctrine of “Separation of Powers” from official-approved textbooks. Later, the Chief Executive of the Hong Kong Special Administrative Region of the People’s Republic of China (HKSAR), Carrie Lam Cheng Yuet-ngor (Carrie Lam), told the media that there was no separation of powers in Hong Kong. Carrie Lam further elaborated that the disputes among the Hong Kong society over the “Separations of Powers” reflected a misunderstanding of the HKSAR’s political framework under “One Country, Two Systems” (OCTS) as prescribed under The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (the Basic Law).

In early September, Ronny Tong Ka-wah, Senior Counsel and Executive Councillor, said that there was no “Separation of Powers” in Hong Kong. He further said that in Hong Kong’s constitutional order under the Basic Law, it is inappropriate to generalize the system using terms that are commonly used to describe the governance of a country. Also, the Liaison Office of the Central People’s Government in the HKSAR clarified that Hong Kong’s political system is “executive-led”, refuting the allegation that Hong Kong exercises “Separation of Powers” and expressing support for the Chief Executive.

Later, in September 2020, the Hong Kong Bar Association (HKBA) released a statement titled “Statement of the Hong Kong Bar Association (“HKBA”) about the Separation of Powers Principle”, expressing its concerns about the remarks made by the Chief Executive and the Secretary for Education, which suggested the absence of the principle of Separation of Powers in the constitutional framework of the HKSAR.

In fact, the above “disputes” can be roughly generalized as a swing between a dichotomy of “functionalist approach” and “formalist approach” on the interpretation of the doctrine of the separation of powers. And yet, such rough generalization is still hovering above the liberalist ideology of power-restraint. What this essay, however, seeks to contribute is to go beyond the dimension of the existing ideology, and to explore any possible space of re-construction. As such, one would inevitably ask the following questions: (1) What is Separation of Powers? (2) Where and when did such a concept originate? Thus, what philosophical grounds does such a concept rely upon? (4) If the doctrine of Separation of Powers is to describe the checks and balances of a sovereign country, then, what is the role of such a concept in the HKSAR? (5) After examining the constitutional text of the HKSAR, how should one explain the macro- and micro-dynamics of power relations in regards to the institutional organs in Hong Kong? (6) Fundamentally, has such a concept of Separation of Powers ever existed in Hong Kong or is it only a delusionary product of the discourse of liberalism? (7) Lastly, what are the implications to the HKSAR under China’s socio-legal-political architecture of its Constitutionalism in recent decades?

In the following passage, the author explores the above issues by adopting the Foucauldian perspective and the academic approach of both Professor Chen Duanhong (陈端洪) and Professor Jiang Shigong (强世功) of the Peking University Law School.