Separation of powers proves disturbingly pliable doctrine

Richard Cullen says that the definition has changed across regimes throughout the centuries but HK’s system clearly doesn’t include judicial supremacy

How has the term “separation of powers” come to mean different things to so many people? To find a convincing answer to this question, we need to consider some history. This term is most commonly associated with the work of French Enlightenment philosopher Montesquieu. He wrote about the “distribution of powers” in 1748. He drew on significant earlier learning, but he was deeply influenced by what he perceived to be a separation of powers between the executive (king), legislature (Parliament) and the judiciary in the British constitutional system at the time he was writing.

Montesquieu was studying the United Kingdom of Great Britain, created in 1707, following the Glorious Revolution of 1688. The separation he admired did significantly apply at that time, within the distinctive, unwritten British Constitution: The king and his government operated outside of Parliament, alongside an independent judiciary.

This independent judiciary traced its history back to the era after the Norman Conquest of England in 1066. The Norman and Plantagenet kings embraced the thenbasic, fragmented common law judicial system and oversaw its independent — but loyal — systematic development into the early version of the remarkable common law system we know today and have inherited in the Hong Kong Special Administrative Region.

Montesquieu argued that there was a pivotal need for a division of power between the executive and the legislative arms of government — and he stressed the need for judicial independence. He famously wrote that “when legislative and executive powers are united …there can be no liberty.”

Yet within less than 120 years, Walter Bagehot, editor of The Economist for 17 years, wrote in his seminal book, The English Constitution, that “The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers.” Bagehot’s argument ratified the exceptional evolution of the British constitutional system. By 1840, that system had created what is known as parliamentary government, where the executive, by binding convention, must be drawn from, be based in and be answerable to Parliament.

Moreover, until reforms were effected in 2005, the Lord Chancellor was: the presiding officer of the House of Lords; a senior member of the UK government; and the head of the judiciary and a presiding judge within the High Court system. Significant powers from all three branches of government were combined within a single person in the UK over a very long period.

Thus, notwithstanding Montesquieu’s influential observations, the UK deliberately moved away from any sort of strict separation of powers, and it long retained quite contrary features within its operating constitutional system.

The US Constitution was ratified in 1788, after the victory of the American colonists over the British in the American Revolutionary War. This was well before the British created parliamentary government. Understandably, the US constitutional drafters used the (unwritten) British constitutional structure — under which King George III governed — as a primary template. There was to be an elected president, of course, and no monarch. But the US copied from a framework which did, at that time (as Montesquieu had approvingly noted) separate executive, legislative and judicial powers.

This is how it comes to pass that the US today is seen as exemplifying the application of a separation of powers regime. Yet a short review reveals that this system is less pure than it may seem. The bold use of executive power to secure politically preferred appointments to the US Supreme Court is a standard procedure of all US governments, and with the Trump administration, this core focus is exceptionally intense.

But what of Hong Kong? First, it is clear that a primary legacy arising from the period of British governance was, under the Letters Patent, a governor-led system that incorporated an independent judiciary plus other checks and balances. The executive-led system (with its independent judiciary) now applying under the Basic Law is a clear manifestation of the through-train transition from British Hong Kong to the HKSAR.

Note, however, that what we inherited is judicial independence — not judicial supremacy. The renowned British constitutional scholar Professor A.V. Dicey deeply supported the former and strongly opposed the latter in the UK. That innate opposition is embodied in the enduring constitutional doctrine of “parliamentary supremacy”, which he conspicuously advanced.

Today in Hong Kong, significant numbers forcefully opposed to the HKSAR government and equally ill-disposed toward Beijing argue that Hong Kong has a separation of powers regime. This assertion is then used as a basis for refuting the pivotal argument that the HKSAR ultimately operates under an executive-led system. It is implicit — sometimes made explicit — that this understanding gives rise to a form of judicial supremacy within the HKSAR. It follows from this that the independent judiciary in the HKSAR enjoys some superior right to shield Hong Kong from certain forms of sovereign oversight — even though Hong Kong is a SAR within the People’s Republic of China, created by powers conferred on the National People’s Congress by the Chinese Constitution of 1982.

This thinking, arising from a separation of powers starting point, lacks grounded foundations in history, in the common law and in the Basic Law. Article 158 of the Basic Law explicitly spells out, after all, that the Standing Committee of the NPC retains the right of final interpretation under the Basic Law.

What we see here is a rash deployment of a too-pliable doctrine. As retired Court of Final Appeal judge, Henry Litton, cogently argues in his recent pivotal book, Is the Hong Kong Judiciary Sleepwalking to 2047?, this sort of radical, challenging approach steadily endangers both the independence of the judiciary and the long-term continuance of our remarkable common law heritage in Hong Kong. We have been forewarned.

It is clear that a primary legacy arising from the period of British governance was, under the Letters Patent, a governor-led system that incorporated an independent judiciary plus other checks and balances. ... Note, however, that what we inherited is judicial independence — not judicial supremacy.