Chapter 3: Governance in Hong Kong
One Country, Two Systems
Concept Overview:
o The "One Country, Two Systems" principle allows Hong Kong to
maintain a system separate from Mainland China for 50 years. This
was agreed upon in the Joint Declaration between China and the UK
and later codified in the Basic Law.
o Example: Hong Kong’s capitalist system remains intact, while the
PRC operates under socialism. The Basic Law ensures this distinction
by safeguarding rights such as private property ownership, free trade,
and an independent judiciary.
Core Aspects of the System:
o Separate Systems:
Political, legal, social, and economic systems differ from those
on the Mainland.
Example: Hong Kong retains its common law system, while
Mainland China follows the civil law system. Hong Kong also
has its own taxation policies, currency (Hong Kong Dollar),
and financial systems.
o Basic Law Provisions:
Article 5 of the Basic Law ensures that Hong Kong’s "way of
life" remains unchanged for 50 years, including in areas like
education, healthcare, and labor.
Tensions and Interpretation Issues:
o Legal Conflicts:
Although Hong Kong courts have the power to interpret the
Basic Law, the ultimate authority rests with the National
People's Congress Standing Committee (NPCSC).
Example: In cases where the Hong Kong Court of Final
Appeal interprets the Basic Law, the NPCSC can overrule it,
creating friction between Hong Kong’s legal system and the
PRC’s legal authority.
High Degree of Autonomy
Promise of Autonomy:
o The Joint Declaration and the Basic Law guarantee Hong Kong a "high
degree of autonomy," allowing the region to govern its internal affairs
independently, except in defense and foreign affairs.
o Example: The Hong Kong government is responsible for managing its
natural resources, education system, and social policies without
interference from Beijing.
Limits to Autonomy:
o Despite autonomy in many areas, several restrictions remain:
Example: The Chief Executive and principal officials must be
appointed by the Central People's Government (CPG).
The NPCSC has the authority to invalidate Hong Kong's
legislation if it conflicts with the Basic Law. Additionally, the
NPCSC has the power to interpret and amend the Basic Law,
further limiting Hong Kong's autonomy.
White Paper on One Country, Two Systems (2014):
o The PRC government issued a White Paper that asserted its "overall
jurisdiction" over Hong Kong, emphasizing that autonomy is delegated
by the central government and can be overseen and managed.
o Example: This document raised concerns among Hong Kong citizens
and international observers about potential overreach by Beijing,
threatening the region's autonomy. Critics argued that this "overall
jurisdiction" was undermining the spirit of "One Country, Two
Systems."
Executive, Legislature, and Judiciary
Executive
Structure and Powers:
o The government of the HKSAR is headed by the Chief Executive,
supported by an Executive Council composed of officials and
legislators appointed by the Chief Executive.
o Example: The Chief Executive must consult the Executive Council
before making significant decisions such as introducing bills to the
Legislative Council or dissolving the legislature.
Selection of the Chief Executive:
o The Chief Executive is elected by an Election Committee of 1200
members, representing various sectors including business, professions,
and labor.
o Example: In the 2014 reforms, protests erupted (Occupy Central)
when Beijing proposed that only a few pre-screened candidates could
run for the position, which critics argued violated the promise of
universal suffrage.
o Article 45(2) of the Basic Law aims for universal suffrage, but gradual
progress has faced resistance. The earliest promise of universal
suffrage was postponed to 2017, though attempts to reform the system
were blocked by the Legislative Council.
Legislature
Legislative Council (LegCo):
o The LegCo is responsible for passing laws, approving budgets, and
scrutinizing government policies. It consists of 70 members elected
from both geographical constituencies (35) and functional
constituencies (35).
o Example: Functional constituencies are elected by sectors like finance
or law, which critics argue give more influence to business elites
compared to ordinary citizens in geographical constituencies.
o Article 73 of the Basic Law grants the LegCo powers such as fiscal
control, lawmaking, and the ability to impeach the Chief Executive for
serious breaches of law.
Judiciary
Independent Judiciary:
o Hong Kong maintains an independent judiciary with courts at various
levels, including the Court of Final Appeal, district courts, and
magistrates' courts.
o Example: Judges are appointed by the Chief Executive based on
recommendations from an independent commission, safeguarding
judicial independence.
Role in Governance:
o The judiciary is tasked with ensuring that laws passed by the LegCo
and actions by the executive comply with the Basic Law.
o Example: In the case of Leung Kwok Hung v. HKSAR, the courts
invalidated parts of the Public Order Ordinance for violating the right
to assembly guaranteed by the Basic Law.
Separation of Powers
Origins and Theory
Historical Development:
o The doctrine of separation of powers originated with political
philosophers like John Locke and Montesquieu, who argued that
separating legislative, executive, and judicial powers prevents tyranny.
o Example: Montesquieu wrote that when legislative and executive
powers are combined, there can be no liberty, as it risks authoritarian
rule.
Different Concepts of Separation:
Functional Separation: Legislative, executive, and judicial functions are
distinct (e.g., LegCo passes laws, the executive enforces them, and the
judiciary interprets them).
Institutional Separation: Each branch operates independently from the
others.
Checks and Balances: Each branch can supervise and limit the powers of the
others to prevent an abuse of power.
Example: The legislature can impeach the Chief Executive, while the
judiciary can review laws for constitutionality.
Critiques:
Challenges to the Doctrine:
o Critics argue that the doctrine is sometimes vague and can cause
government paralysis when different branches disagree.
o Example: A bill might pass the LegCo but be blocked by the judiciary
or fail to gain the Chief Executive’s approval, leading to a legislative
deadlock.
Separation of Powers in Hong Kong
Colonial Hong Kong:
Limited Separation:
o The executive and legislature were closely tied, with the Governor of
Hong Kong wielding significant power over the legislature, including
appointing members and vetoing bills.
o Example: The Governor could dissolve the legislature, and until the
mid-1990s, the Legislative Council had limited power to check
executive actions.
Post-1997 Hong Kong:
Application of Separation of Powers:
o Chapter IV of the Basic Law divides the government into three
branches—executive, legislature, and judiciary—with certain checks
and balances to prevent the concentration of power.
o Example: The Chief Executive can dissolve the legislature if it refuses
to pass the budget, but must resign if the new legislature still refuses to
approve it, ensuring balance.
Executive-led Government:
o Despite the separation of powers, the PRC and Hong Kong authorities
maintain that Hong Kong is an "executive-led" government. The Chief
Executive has greater influence over the legislative process than in
Western democratic systems.
o Example: Private members’ bills in the LegCo require the Chief
Executive's consent if they affect government policies.