Do

you believe the Hong Kong Basic Law provides for a system of separation of
powers, or do you believe it provides for a system of executive-led government?
(1148 words)

Since the implementation of the Basic Law in Hong Kong in 1997, there have been
controversial views on whether the Basic Law provides a system of separation of power
or executive-led government to Hong Kong (HK). This is due to some ambiguities and
uncertainties in the Basic Laws content.1 In order to understand this issue, it is vital to
analyze that what powers the Basic Law has given to each political sector and how the
laws practiced in HK. The chief concerns are how much power the Chief Executive
(CE) can enjoy and how he can use it in reality.
Although the Basic Law does not directly describe the exact system of government, it
has provided certain powers to each sector of political power (legislative, executive
and judicial). According to Ma Ngok, the current political system of HKSAR is
executive-led. The term executive-led refers to a political system that the executive
head has more powers than other political institution.2
Lau (2000) and Li (2001) summarize four major points of the executive-led system in
Hong Kong. These points are respectively related to the powers of appointment
(Article 48(5)(7)), policy-making (Article 48(4)), dissolving of legislative council and
the final decision of all bills (Article 48 (3)).3
Under the provision of the Basic Law, the CE enjoys greater powers than elected
executive head in 33 countries.4 He has the authority to appoint any person to the
government bureau secretaries. When he uses this power, he does not need any
approval the Legislative Council (LegCo); therefore, all-important positions of the
government would be directly controlled by him. Secondly, CE could dissolve the
LegCo under two situations, which are when the LegCo rejects his bills or budgets
(Article 50 (1), 51), but this power has never been used after the handover. Thirdly, the
CE and the bureau secretaries possess most of the policymaking power.5. In general,

1
Gittings, D. (2013) Chapter 5 System of the Government, Introduction to the Hong Kong
Basic Law, Hong Kong University press, Hong Kong page 6
2
Zhang, M. T (2011) Introduction, Commentary and Analyze: Does Hong Kong have an
executive led Government? Politics and Public Administration Association SSS, HKUSU 2011
3
Ma K., Executive-Legislative Relationship: Assessing Legislative Influence in an ExecutiveDominant System in Lau Siu Kai (ed) The First Tung Chee-hwa Administration: The first Five
Years of the Hong Kong Special Adminstrative Region, The Chinese University Press, 2002.
Page 351-352
4
Ma K., Executive-Legislative Relationship: Assessing Legislative Influence in an ExecutiveDominant System in Lau Siu Kai (ed) The First Tung Chee-hwa Administration: The first Five
Years of the Hong Kong Special Adminstrative Region, The Chinese University Press, 2002.
Page 353, 368
5
Gittings, D. (2013) Chapter 5 System of the Government, Introduction to the Hong Kong
Basic Law, Hong Kong University press, Hong Kong, page 93

the policies formulated by the administration do not need to notify LegCo.6 It would
cause a situation that sub rosa policies are easily introduced to the public; the
noteworthy examples are the introduction of Moral and National Education (2012) and
the privatization of CityLink. Therefore, it is obvious that the Basic Law has limited
the legislative powers restraint of the administration.
Interestingly enough, the CEs powers could indeed be found in some other
parliamentary democracies, because most of the powers that CE is enjoying are similar
to those of a prime minister (PM). For instance, the PM has unlimited authority to
dissolve the legislature body at any time7; he could also appoint any persons into the
Cabinet. In fact, the power of dissolving the legislative body has been used in other
nations. The Prime Minister in Thailand, YingLuck Shinawatra, dissolved the
parliament in December 2013 and called for a new election.8 In this sense, the CE
might indeed be following the parliamentary democracy system during the drafting of
the Basic Law, because the executive head in presidential democracy such as United
States does not enjoy this privilege. However, the power base of the CE is actually
different from PM, as the method of electing the executive head is different. It might
be the major reason of a difference in how CE could practice his powers in reality.
Although the Basic Law is deemed to have provided a system of executive-led
government, some scholars claim that Hong Kong's political system is in reality
exercising a system of separation of powers.9 With the provision of Basic Law, the
different political sectors have their respective functions to maintain the stability of
society. The executive sector is responsible for managing the social order and
introducing policy, LegCo has the legislative powers and monitor the work of CE
(Article 73), and judicial sector is responsible for upholding the laws and act as a body
to check and balance on executive and legislature.10
This point is emphasized in the notable case of Leung Kwok Hung v Chief Executive
(2005)11 . CE issued Law Enforcement (Covert Surveillance Procedure) Order 2005 to
give temporary legal basis for surveillance of criminal suspects by police. When the
law courts in Hong Kong exercised the power of judicial review on the
constitutionality of legislation, it claimed that the Law Enforcement Order was invalid
since the legislation procedure would be the responsibility of LegCo, not the CE.
Therefore, it shows that the court has tried the best to prevent any power domination

6
Gittings, D. (2013) Chapter 5 System of the Government, Introduction to the Hong Kong
Basic Law, Hong Kong University press, Hong Kong, page 93
7
Parliament.uk, Fixed-term Parliament Act 2011- Dissolution of the Parliament,
www.parliement.uk. Retrieved from http://www.parliament.uk/about/how/elections-andvoting/general/dissolution/ (15th March 2014)
8
Kocha Olarn, CNN, Amid Protests, Thailand s PM YIngluck Shinawatra dissolved
parliament, CNN International News. Retrieved from
http://edition.cnn.com/2013/12/09/world/asia/thailand-protests/ (15th March 2014)
9
Andrew Li (2011) Chief Justice Speech at Ceremonial Opening of the Legal Year 2010. Hong
Kong judiciary. (14th March 2014)
10
Danny Gitting, Role of Courts, System of Government, Chapter 5 of Course Manual of Hong
Kong Basic Law, slide 106
11
HCAL 107(2005)

of the government system. In this case, different political institutions are practicing a
respective function, and the executives power is limited by other two sectors, which
mean the Basic Law might provide a system of separation of power.
In my view, I strongly believe that HK is an executive led government under the Basic
Law, because CE obviously has more sovereign powers than the other sectors. 12
According to Hong Kong Economic Journal of 24th September 1998, Martin Lee was
quoted that Deng XiaoPing rejected the ideology of separation of power during the
drafting of the Basic Law. However, interestingly, he did not reject the idea of check
and balance, therefore, Hong Kong system is exercising it in lieu of a clear notion of
separation of power.13. Curiously enough, CEs power is more limited in reality, and the
reason is even CE is sharing similar power with PM, but the election approach of
executive head is different. In UK, PM is elected by the parliament, thus the majority
seat in it usually supports PMs policy. In contrast, an independence body, not the
LegCo, elects CE. Therefore, there is no dominant party inside the legislature body in
support of the CE.14 In that sense, HK political system is deemed to be a mixture of
parliamentary and presidential democracies, in which causing a condition that the
CEs power is more appeared than real.

12
Gittings, D. (2013) Chapter 5 System of the Government, Chief Executive, Introduction to
the Hong Kong Basic Law, Hong Kong University press, Hong Kong, page 95
13
Guenther Doeker-Mach, Klaus A. Ziegert (EDs.) (2004), Judges and Judicial power under
the Hong Kong Basic Law, Law and Legal Culture in Comparative Perspectives, Der Deutschen
NationalBibligraphie, page 442
14

In UK, the majority party in the parliament usually elects the Prime Minister; so the
parliament does not play a significance role in check governments work and just playing a
subsidiary organ to balance the power.

Bibliography
Andrew Li (2011) Chief Justice Speech at Ceremonial Opening of the Legal Year 2010.
Hong Kong judiciary. (14th March 2014)
Gittings, D. (2013) Introduction to the Hong Kong Basic Law, Hong Kong University
press, Hong Kong
Guenther Doeker-Mach, Klaus A. Ziegert (EDs.) (2004), Judges and Judicial power
under the Hong Kong Basic Law, Law and Legal Culture in Comparative
Perspectives, Der Deutschen NationalBibligraphie, page 442
Kocha Olarn, CNN, Amid Protests, Thailand s PM YIngluck Shinawatra dissolved
parliament,
CNN
International
News.
Retrieved
from
http://edition.cnn.com/2013/12/09/world/asia/thailand-protests/
Leung Kwok Hung v Chief Executive (2006) HCAL 107
Ma K., Executive-Legislative Relationship: Assessing Legislative Influence in an
Executive-Dominant System in Lau Siu Kai (ed) The First Tung Chee-hwa
Administration: The first Five Years of the Hong Kong Special Adminstrative
Region, The Chinese University Press, 2002. Page 351-352
Parliament.uk, Fixed-term Parliament Act 2011- Dissolution of the Parliament,
www.parliement.uk.
Retrieved
from
http://www.parliament.uk/about/how/elections-andvoting/general/dissolution/
Zhang, M. T (2011) Introduction, Commentary and Analyze: Does Hong Kong have
an executive led Government? Politics and Public Administration Association
SSS, HKUSU 2011