Electronic copy available at: http://ssrn.com/abstract=2412448
Separation of Powers under the HK Basic Law By Danny Gittings Assistant Professor, College of Humanities and Law, HKU SPACE PhD Student, Faculty of Law, University of Hong Kong
The origins of separation of powers are often traced back to the writings of the ancient Greek philosopher Aristotle. But although Aristotle was arguably the first to divide all governmental powers into three separate categories, he considered it unnecessary for these three powers to be exercised by different groups of people.1 That fundamental principle, often known as "separation of persons", lies at the heart of much of separation of power theory. But it did not begin to emerge until more than 1,000 years after Aristotle's death, when it formed part of the rationale for the overthrow of the absolute monarchy and replacement with a system of parliamentary sovereignty during the Civil War in 17th century England.
It was to be another century after that before the doctrine of separation of powers would be finally encapsulated in a way similar to that in which it is understood today, in the works of the 18th century French philosopher Charles-Louis de Secondat, better known as Baron Montesquieu.2 Montesquieu's writings proved influential with at least some of the Founding Fathers who drafted the US Constitution shortly afterwards,3 resulting in a document embodying what remains the world's best-known example of a relatively strict system of separation of powers. The system practised in the US is also one which, as we will see, bears at least some resemblance to the system of separation of powers under the Hong Kong Basic Law.
In the most extensive modern study of the subject, Vile (1998) defines a "pure" system of separation of powers as consisting of four elements: 1) The division of government into three separate branches: Executive, legislature and
judiciary; 2) The classification of all governmental functions as falling within one of these three
branches, with each branch only exercising those powers that belong to it and not interfering in those functions that belong to the other branches;
3) Separation of persons: The three branches are composed of separate and distinct groups of people with no overlapping membership between them;
4) The exercise of checks and balances between the three branches to avoid any one branch exercising arbitrary power.4
1 Aristotle, Politics, Book 4, Chapter IV [translated by William Ellis (London: J.M. Dent & Sons, 1912)], where
he argued that it "makes no difference" whether these three powers (which he called war, justice and deliberation) "belong to separate groups, or to a single group". 2 Montesquieu, De l'Espirit des Loix [translated by Thomas Nugent, The Spirit of Laws (London: G. Bell &
Sons, 1914)]. 3 There are, however, divided opinions on precisely how influential Montesquieu's writings were on the
Founding Fathers. See further M.J.C. Vile,...