Does Separation of Powers Exist?

The fiasco unfolding in Hong Kong’s Legislative Council has triggered a debate over the Hong Kong Basic Law’s constitutional foundations and the state of separation of the executive, legislative, and judicial powers. The executive government’s unprecedented judiciary appeal to disqualify two democratically-elected localist lawmakers has sparked controversy over the “checks and balances” of the three government branches.

Though echoes of the pillars of Western democracy are enshrined in the Basic Law, Hong Kong ultimately is not a sovereign state with political autonomy. In no section of the Basic Law are separation of powers explicitly articulated, though the mini-constitution does outline the functions and powers of each governmental branch in Chapter IV.

If separation of powers has not been clearly defined in the Law, are Hong Kong citizens then justified in criticizing the government for interfering in the internal affairs of the legislative branch? On the other hand, does the principle’s exclusion from the Basic Law invalidate it entirely? These questions, as well as many other nuances of the intrinsic implications of Hong Kong’s government structure have been widely debated by both Chinese and Hong Kong legal scholars to no avail. Though these are complex questions that surely cannot be answered with a simple “yes” or “no” answer, the fact that ongoing dialogues and debates about these fundamental legal and political principles exist is a positive indicator of the still-progressive state of Hong Kong politics.

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