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The Hong Kong Subconstitutional Model
of Separation of Powers: The Case of
Weak Judicial Review
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Hong Kong Law Journal
2017
Article
The Hong Kong Subconstitutional Model of Separation of Powers: The Case of
Weak Judicial Review
Guobin Zhua1Antonios Kouroutakisaa1
Copyright © 2017 by Sweet & Maxwell; Guobin Zhu, Antonios Kouroutakis
Citation: 47 HKLJ 221
Since the activation of the new constitutional order of Hong Kong on 1 July 1997, a plethora of court decisions have directly or indirectly implemented the concepts of separation of powers, and constitutional review, in its strong form, although all two concepts were not explicitly stipulated in the Basic Law.On top of that, separation of powers and strong judicial review are distinctive features of the subnational constitutional order of Hong Kong given that they don't mirror the constitutional configuration of China.While this unique configuration is explained by historical circumstances and is enshrined in the principle of “One Country, Two Systems”, this article takes into consideration the basic component of the separation of powers, the constitutional review, with the aim to distill how the doctrine of separation of powers in Hong Kong is influenced by subconstitutionalism.This article examines the development of judicial review, and how it was perceived and integrated in the current legal order.Then, it continues to analyse the breadth of this concept based on the relevant courts' decisions.The main argument is that the model of separation of powers in Hong Kong due to its interaction with its subconstitutional character resembles the model of weak judicial review.This is a unique configuration which is explained based on two elements.First, the position of the Court of Final Appeal at the top level of the hierarchy of the judicial system with the power of finality, and second, the catalytic role of the National People's Congress Standing Committee to interpret the Basic Law which can also be triggered by the Chief Executive.
1. Introduction
Since the handover of Hong Kong to China under the principle of “One Country, Two Systems” and the activation of the Basic Law on 1 July 1997, the separation of powers is on everyone's lips.For a number of reasons, the concept of separation of powers or some of its aspects separately was one of the topics that monopolised the constitutional discourse in Hong Kong,1and interestingly, the role of the judiciary was the common denominator.
Broadly speaking, there has been a dispute over whether the separation of powers exists as a constitutional principle under the Basic Law, while others dispute the scope and the extent of the principle.2The very recent speech of Zhang Xiaoming, Director of the Liaison Office of the Central People's Government in Hong Kong and the top representative of the central authorities, has fueled the already heated debate over the structure of the Hong Kong government.In his speech commemorating the 25th anniversary of the promulgation of the Basic Law, Zhang made the following full statement on the political structure:3
“The political structure of the HKSAR is an executive-led government which is directly under the Central Government and taking the Chief Executive for the core, under which the executive and the legislative power check on each other and collaborate mutually, and the judiciary is independent. Hong Kong does not practice the separation of powers system, it was not the case before the hand-over nor is it the case after”.
power centred around the Chief Executive (CE), executive *223 and legislative powers mutually checking on and collaboration with each other, and judiciary independence.4
The issue becomes even more complicated regarding the vertical relationship between the central authorities in Beijing and the local authorities of Hong Kong, in particular the courts in Hong Kong.There is an extensive amount of literature on the controversy between the Court of Final Appeal (CFA) of Hong Kong and the National People's Congress Standing Committee (NPCSC)5provoked by the landmark case Ng Ka Ling v Director of Immigration ;6however, the aim of this article is to broaden the approach and consider the role of the judiciary and of the separation of powers from the perspective of subconstitutionalism.
Ginsburg and Posner have successfully demonstrated that there is a tendency of uniformity in the design of the “subconstitution” in relation to the “superconstitution”.7This tendency of uniformity partly explains the divergent views on the system of the government of Hong Kong.But while this tendency seems to be orthodoxy, it is not without exceptions.8Hong Kong represents an exception to this rule as China does not practice the separation of powers system, while in Hong Kong, the exact opposite has been conformed on numerous occasions by the courts.This disparity reflects the unique historical circumstances and is accommodated broadly in the “One Country, Two Systems” principle.
Having said that, this article takes into consideration the basic component of the separation of powers, the constitutional review, with the aim to distill how the doctrine of separation of powers in Hong Kong is influenced by subconstitutionalism.It examines the development of judicial review and how it was perceived and integrated in the current legal order.Then, the article continues to analyse the breadth of this concept based on the relevant courts' decisions.*224 The main argument is that the model of separation of powers pertaining the judiciary due to its interaction with its subconstitutional character resembles the model of weak judicial review9and not the model of strong judicial review as it was first suggested in Ng Ka Ling .This unique configuration is explained by two elements: first, the position of the CFA at the top level of the hierarchy of the judicial system with the power of the finality, and second, the catalytic role of the NPCSC to interpret the Basic Law which can be also triggered by the CE, the core of the executive power.
The structure of this article is as follows.First, it briefly discusses the concept of separation of powers, how it was originally conceived and how it has further flourished.This section is mainly theoretical as it approaches the concept from a jurisprudential point of view, but it is necessary to show the interaction and the nexus between the concepts of separation of powers, checks and balances and constitutional review.Further, it examines different configurations regarding the role of the judiciary and in particular the distinction between strong and weak judicial review.Second, the article focuses on the application of separation of powers in Hong Kong as a subnational constituency under the new constitutional order.It explains why this doctrine has provoked a controversy, and ultimately, it highlights its basic components.The discussion is particularly devoted to Ng Ka Ling which is undoubtedly the bedrock of all these concepts and exemplifies the model of strong judicial review.
Third, the analysis proceeds to the most critical part, the careful examination and the discussion of the subsequent precedents.It examines the case law and categorises it in order to highlight how the principle of separation of powers equally limits the role of the judiciary.Here, the analysis aims to further enhance the application of separation of powers based on case law and, at the same time, to expose the limits that are recorded.Finally, the analysis discusses the subconstitutional dimension of the Hong Kong legal order and examines how the power of the CE to trigger an interpretation from the NPCSC in essence transforms the model of judicial review into a weaker form.
2. A Revisit to the Doctrine of the Separation of Powers
powers.12
Indeed, James Madison, one of America's founding fathers and the country's fourth president, supported the interaction between the three branches of the government and famously articulated the political theory of “check and balances”.13Madison explicitly advocated that political apophthegm: “does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other.I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained”.14
A crucial piece in the jigsaw puzzle was added with the infamous case Marbury v Madison .15Since the constitutionalisation of the American legal order, the courts have asserted the power to review the constitutionality of the acts of the legislative body.Thus the so-called constitutional review has risen as a subcategory of judicial review, and it*226is currently a trend in a global scale.16The power of courts to strike down acts of the legislative body in reality places the judiciary at a supreme position, and the only way for the executive and the judiciary to overturn courts' decision is by amending the constitution.17This model which is termed as judicial supremacy is juxtaposed with the legislative supremacy whereby the validity of the acts of the legislature are uncontrolled by the courts.18However, quite recently a middle ground was formed, a weak form of judicial review was formed according to which the courts review the constitutionality of legislative acts but legislators may reverse such outcome.19
It is evident from the discussion above that the doctrine of the separation of powers is not simply confined in its negative aspects as articulated by Montesquieu but also incorporates a positive aspect which is exemplified by the checks and balances and constitutional review.Such concept, since the first political discourses, was further established as a fundamental principle of good governance but has not been left without criticism.20In particular, it is argued that the separation of powers results in an inefficient model of governance,21but in modern theory, separation of powers compliments the democratic procedures to hold public officials disciplined and accountable.Elections are considered as the primary *227 mechanism of political accountability, while separation of powers and check and balances create a control interaction between institutions which enhances voters elicit information.22 3. Constitutional Setting of Separated Powers under the Basic Law
To begin with, the principle of “One Country, Two Systems” governed the resumption of exercise of sovereignty over Hong Kong by China and the enactment of the Basic Law, a constitutional law in the hierarchy23of law under the Chinese legal order and the constitution of Hong Kong.24Yet, the term “separation of powers” is missing from the text of the Basic Law as well as the extent of the review powers of the judiciary.Although a rigid tripartite formation of the state organs is endorsed--Art 2 explicitly states that Hong Kong is authorised to“enjoy executive, legislative and independent judiciary”25and Ch 4 independently enlists the executive,26legislature27and judiciary28--and despite the fact that the Basic Law is scattered with provisions about the separation and balance of powers between the central authorities and the government,29there is no explicit reference in any of the 160 articles and 3 annexes of the Basic Law to the doctrine of separation of powers and in particular to the role of the courts as a safeguard of the constitution.
It is the fact that in many constitutional orders in which the separation of powers is established as a fundamental principle, and rigorous constitutional review is exercised, both concepts are often absent from their constitutional documents.For instance, both the US Constitution and the Basic Law for the Federal Republic of Germany do not include the term separation of powers or mention the power of the court to review the constitutionality of legislative acts.However, the trend in contemporary constitution making is to have the term explicitly *228 included.Hence, contemporary constitutions incorporate the principle of separation of powers.30
Most importantly, separation of powers--and subsequently checks and balances-- is not a doctrine enshrined in the constitutional tradition of the China34of which Hong Kong is “an inalienable part”.35 Separation of powers is considered incompatible with the socialist tradition,36and although the doctrine “One Country, Two Systems” may accommodate antithetical doctrinal settings, it is without doubt that the drafters of the Basic Law did not intend to literally incorporate the principle of separation of powers in the Basic Law.37More recently, following the above-cited statement by Zhang Xiaoming, scholars and officials from China unanimously assert that Hong Kong's political structure is not *229 the type of separation of powers, but the one built upon the principle of executive-led government.38
Moreover, constitutional review in the Western sense still is an unknown process in China, at least in comparison to the standards of review in systems with checks and balances.Admittedly, a Chinese citizen and his defender or attorney cannot invoke the Constitution in the court as a way to challenge an administrative action or a law.39Nonetheless, an alternative process of constitutional review emerged inSun Zhigangand the subsequent abolition of the Custody and Repatriation policy.40 According to this process, which was successfully invoked only once, people are allowed to petition the National People's Congress (NPC) and demand the review of a policy.41This process is currently not fully developed, and it is still unclear if the recent Party Decision on the rule of law will render alternative constitutional review for a legitimate remedy and a systematic procedure.
These structural differences between the constitutionalism in China and that in Hong Kong, which were also presented as an ideological gap by Johannes Chan, are further exacerbated when these two systems interact.Hong Kong is an autonomous region of China under the principle of “One Country, Two Systems”; however, the organs of China, such as the NPCSC, are constitutional players within Hong Kong and under the current constitutional order.The relationship between the central authorities in Beijing and Hong Kong forms a vertical balance of powers.
The Basic Law stipulates that the Government and its head the CE, the LegCo and the courts are the executive, legislative and judicial authorities, respectively.42The distinction between the different branches is sharp and clear, but a number of provisions permit room for interaction between the branches.For example, CE is allowed to dissolve the LegCo, while LegCo supervises CE by invoking impeachment procedure.43
*230 What is commonly said about the system of government in Hong Kong is that it is an executive-led government.The drafters of the Basic Law believed that the governor system in the British Hong Kong was such a system and there should be a continuation of this political structure after the handover.44Indeed from the first reading of the Basic Law, a series of provisions assign a significant power, unparalleled and unprecedented to another legal order,45in hands of the CE.CE is not just the head of Hong Kong46and does not simply preside over the Executive Council (ExCo)47nor does he exercise a plethora of executive duties, which are commonly placed in many jurisdictions, for instance to sign bills and budgets passed by LegCo48or to issue executive orders.49The CE rather exercises crucial and wide range of powers, such as to appoint the members of the ExCo,50to exclusively formulate policies51and even to dissolve the LegCo and call for new elections in case the latter refuses to pass an important governmental bill or the budget.52
That said, the prominent and central role of the executive branch is not incompatiblea prioriwith the separation of powers of doctrine.It is widely accepted that the separation of powers can accommodate manymodus vivendiand configurations from executive-based systems such as the presidential systems to legislative-based systems such as the parliamentarian systems.
4. Separation of Powers as Court-Declared Constitutional Principle and Subsequent Expansion of Judicial Power
In reality, the separation of powers in Hong Kong and most importantly the role of the courts as a guardian to the Basic Law is a principle established with judge-made force.The seeds of such principle are traced in Ng Ka Ling .53Although the facts of the case are well known, a brief *231 summary follows below.The case essentially deals with Chinese children, born outside of Hong Kong and in particular on the Mainland, but each had a parent who was a Hong Kong permanent resident.During their stay in Hong Kong without travel documents, they sought to assert their right of abode according to Art 24(3) of the Basic Law.54
Immigration (Amendment) (No 3) Ordinance 1997 according to which only the Chinese nationals and descendants of permanent residents of Hong Kong who have valid travel documents issued by the Chinese authorities have the right of abode in Hong Kong.Hence, the Director of Immigration rejected their application to become permanent residents of Hong Kong.55
The case was finally brought before the CFA.This Court ruled that the Immigration (Amendment) (No 3) Ordinance 1997 was incompatible with the Basic Law (Art 24(3)) and rejected the argument of the Government that the courts in Hong Kong like the courts in United Kingdom do not have the power to review the acts of Parliament.56In other words, the Court rejected the idea that acts of the Hong Kong legislature are supreme according to the doctrine of parliamentary sovereignty.
The holding on the doctrine of separation of powers was further repeated in a number of cases.In Director of Immigration v Chong Fong Yuen , the court held that Ng Ka Ling “clearly reflects separation of powers as a firm constitutional principle under the Basic Law”,57and later on inRaza v ChiefExecutive-in-Council, Hartmann J explicitly held that the Basic Law “enshrines the separation of powers”.58Ever since, this court opinion encounters no, or to say few, significant serious challenges from academia.
*232 Undoubtedly, Ng Ka Ling was seminal for a number of reasons.By rejecting the doctrine of legislative supremacy, it gave rise to the doctrine of judicial supremacy both at the horizontal level between the LegCo and the CE and at the vertical level between the NPC.59
Law makers within the Hong Kong legal order, but also the “Basic Law” makers of NPC cannot make and unmake any law about Hong Kong since the Basic Law imposes limits, both procedural and substantial.At the horizontal level, subsequently this case forms the foundation of strong judicial review in Hong Kong, and the courts now have the authority to override or set aside the legislation enacted by LegCo, and hence, it is fairly compared to the well-known case of the American jurisprudence Marbury .60
At the vertical level with a far-reaching claim, the CFA held that it has the power to review even the acts of the NPC or NPCSC to examine whether they are consistent with the Basic Law.61The value of this statement is dubious.Formally speaking, it is not clear whether the statement forms part of the ratio decidendi, also called case holding, hence having the force of legal precedent, or whether it is obiter dictumand not binding.62
Having said that, the aforementioneddictumby the Court is in conflict with thestare decisisset in the earlier Court of Appeal case HKSAR v Ma Wai Kwan, David according to which the courts in Hong Kong cannot control acts of the sovereign.63The Court of Appeal justified this assertion on the basis that the sovereign has delegated that power to the court64while such function is a necessity to uphold the consistency in the constitutional order.65Quite recently, the Court of First Instance (CFI) inLeung Lai Kwok Yvonne v Chief Secretary for Administrationindicated inobiterthat Hong Kong courts have no jurisdiction to*233challenge the NPCSC's 31 August decision on the method for selection of the CE in 2017.66
In other words, the CFA proclaimed the constitutional supremacy or the Basic Law supremacy over the acts of sovereign, in particular the NPC and NPCSC.67In addition, it expanded its power to constitutionally review not only the acts of LegCo (horizontal separation of powers) but also the acts of the NPC and NPCSC (vertical balance of powers).That claim raised a number of implications, since the courts in China generally do not have the power of constitutional review, while the NPC is considered to be placed on the top of the pyramid in the Chinese constitutional order.68From a more theoretical and philosophical point of view, it has disrupted the hierarchy of norms between the Constitution of China and the Basic Law of Hong Kong.69
Ng Ka Ling was undoubtedly a landmark case.Despite the fact that in its lines there is no reference to the term of separation of powers, its holdings epitomise the foundation of the separation of powers in Hong Kong, the establishment of the constitutional review and finally the triumph of checks and balances.However, all these concepts have been further developed, as case law has further tailored them to the constitutional realities in Hong Kong.It is therefore necessary for the reading of Ng Ka Ling to be subjected to a careful examination of the subsequent case law.
5.Prima facieStrong Judicial Power
depends on the sharp or blurred distinction between legislature and executive, the nature of the checks and balances between the institutions, the extent of their interaction and the role of the courts.The doctrine of separation of powers, especially in terms of its horizontal formation, was further crystallised in a number of Hong Kong cases discussed below.
*234The examination of the case law shows thatprima faciethe courts of Hong Kong exercise strong judicial review andNg Ka Ling's dictumon the power of the courts portrays in theory the extent of the judicial power.Undoubtedly, Ng Ka Ling is the foundation of the competence-competence power of the CFA to determine its own jurisdiction.This power is relevant to the shared power of interpretation of the Basic Law which is vested in principle in the NPCSC as well as the CFA.Although Art 158 provides that the NPCSC is not empowered of to interpret issues that“are within the limits of the autonomy of the Region [Hong Kong]”,70the CFA, in practice, defines when and if an issue needs to be interpreted by the NPCSC.71
Remarkably, the CFA mentioned for the first time the term of separation of powers a couple of months after Ng Ka Ling in Lau Kong Yung v Director of Immigration .72Interestingly, Sir Anthony Mason NPJ, while making observations on the interpretive power of the NPCSC and the courts in Hong Kong, stated that“the PRC Constitution does not provide for a separation of powers that is the same as or similar to the common law doctrine of the separation of powers”.73The term was used in order to justify that the courts have the power to interpret law, despite the fact that this power is limited compared to the general power of the NPCSC.
Accordingly, in Chong Fung Yuen ,74Li CJ explicitly referred to the separation of powers as a“basic principle of the common law”which is“preserved and maintained in Hong Kong by the Basic Law”75in order to argue that the interpretation of the Basic Law (constitutional*235interpretation) is one of the fundamental functions of the court and thus to justify that the reference request to the NPCSC for interpretation was not required.Following Ng Ka Ling , the CFA in Chong Fung Yuen further established the power of the judiciary to review the constitutionality of the acts of LegCo, despite the fact that the Court found that the particular law was compatible with the Basic Law.76
In addition, a year later, the doctrine of separation of powers was used in order to further expand the judicial power.In particular, in Chan Pun Chung v HKSAR ,77Chan PJ used the term in order to imply that purposive construction does not violate the constitutional limits of the separation of powers.78The Court safeguarded its authority against acts of LegCo when the latter adopted a finality provision that actually limited the CFA jurisdiction to entertain an appeal against the Solicitors Disciplinary Tribunal.Specifically, the Court in Solicitor v Secretary for Justice 79held that a finality provision was inconsistent with the separation of powers and the authority of the court of final adjudication.80
Likewise, it ruled unconstitutional another finality provision which rendered the CFI as final to decide on matters concerning election petitions.81Moreover, the Court inYau Kwong Man v Secretary for Securitysafeguarded its judicial power by invalidating legislation that delegated the power to the CE to exercise judicial functions.82Finally, the Court retained in its authority the decision-making power on whether it can issue a prospective overruling.This is evident in HKSAR v Hung Chan Wa 83even despite the majority of the Court ruling that:
“it was not necessary to determine whether the courts had the power to engage in a prospective overruling; even if there was such power, its exercise was plainly not justified here (in the specific case)”.84
6. Limits of Judicial Power under Separation of Powers
(a) Self-imposed Limits: Deference and Interna Corporis
However, separation of powers like a double-edged sword does not simply limit the legislative and executive branches of the government, or the central authorities, but at the same time serves as a limit to judicial power.The following section will explore how the separation of powers principle was used as a limit to the judicial power.85In particular, it will argue that the court approaches “political issues” with deference to the political branches of the government, the CE and LegCo, while the interpretive authority of the NPCSC based on Art 158 circumscribes the judicial power of the courts to review acts of the sovereign.
deference” to facilitate the discussion.
However, on immigration policies, the stance of the CFA was ambivalent during its first years.Hence, after Ng Ka Ling where the CFA held the relevant statute of immigration unconstitutional,87the Court in Ng Siu Tung v Director of Immigration,88a case which entered on the scope of the precedent from Ng Ka Ling , unanimously used the doctrine of separation of powers in order to show self-restrain and state that “only in an exceptional case” the Court would invalidate an administrative decision when the authority of the officers was reposed by statute.89However, in the same year in Gurung Kesh Bahadur v Director of Immigration ,90the Court struck down the immigration policies that imposed limits to Hong Kong's non-permanent residents on travelling to and returning from overseas.
Progressively, though, the Court recognised that the separation of powers of principle imposes limits on the use of judicial review power when“the function involved is exclusively the province of the legislature *237 or the executive”.91This is confirmed in a number of subsequent cases, where the Court dismissed the claim that the Immigration Ordinance (Cap115) at stake was unconstitutional.92 On the other hand,Koo Sze Yiu v Chief Executive of the HKSAR93was about an issue of national security in relation to the application of the Interception of Communications and Surveillance Ordinance (Cap589).Despite the fact that the relevant order was ruled unconstitutional, the Court showed deference to the executive and issued a temporary validity order.Interestingly, Sir Anthony Mason NPJ in his concurring opinion based his reasoning on separation of powers concerns stated that:
“whether this Court has jurisdiction or power to make an order for temporary validity is a very large question, involving fundamental doctrinal questions relating to the separation of powers, the role of the courts, the relationship between the courts and the legislative branch of government, as well as the rule of law and considerations of justice, and of community protection and welfare”.94
Pertaining to the legislative branch, the CFA has also shown deference on theinterna corporis, or in other words, the internal business of Parliament.Here we may name it “territorial deference”. Cheng Kar Shun v Li Fung Ying 95is the first obvious case in which the CFI ruled that the Basic Law recognised LegCo to be a sovereign body under that Law, and it had exclusive control over the conduct of its own affairs.Hence, the courts did not, as a rule, interfere with the “internal workings” of the legislature.In the meanwhile, the Court reiterated that exceptionally, where questions of whether the LegCo, in going about its business, had acted in contravention of the Basic Law, the courts had jurisdiction to intervene.But“the jurisdiction must be exercised with great restraint, having regard to the different constitutional roles assigned under the Basic Law to different arms of the Government”.96
*238Leung Kwok Hung v President of the Legislative Council (No1)97is another case of self-restriction of the court's authority to apply judicial review.The Court, based on separation of powers considerations, in regard to theinterna corporisor “internal working” specifically held that:
“the courts will recognize the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes.The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself, matters of this kind (the non-intervention principle)”.98
However, in a recently delivered case by the High Court, it was clarified that the non-intervention principle as to the internal business of the LegCo is not absolute as it is in the United Kingdom.99The Court while it remarked that this principle has its origin on the separation of powers doctrine, it acknowledged, citing Leung Kwok Hung , that constitutional limits exist based on the Basic Law.100
(b) The Power of the Chief Executive to Trigger an Interpretation from the Standing Committee In the aforementioned cases, we witness that the CFA and the High Court showed deference to executive and legislative acts, sometimes gracefully and sometimes reluctantly.101The analysis below will consider limits to judicial power pertaining to the role of the CE to seek an interpretation from the NPCSC. This issue reflects the unique configuration of *239 Hong Kong where subconstitutionalism interacts and influences with the separation of powers.
explores the horizontal share of powers between the institutions, another dimension flourished due to the development of the statehood, that of the vertical share of powers between institutions.This vertical share of powers depends on a special constitutional arrangement according to which a breaking down occurs within the state and mini-constitutional orders emerge within the constitutional order.This concept is framed as subnational constitutionalism or subconstitutionalism.102
Without doubt the lawyer of the early twentieth century could not predict the complexities and the possible varieties of multifaceted structure that can be involved in the postmodern state.103In practice, this complexity within several constitutional orders due to the multilayer constitutional orders has led to multifaceted structure such as federal states, for example, the United States, or quasi federations, for example, the European Union.104However, new forms of state structure have developed such as the model of devolution of the United Kingdom105and the composite structure of China.106
*240Further, the relationship between the “superconstitution”, as Ginsburg and Posner name it,107and the “subconstitutions” or mini-constitutions is of paramount legal importance because it affects the relationship between the “superconstitutional order” and the “subconstitutional orders”.In theory, when two legal orders interact, if there is an hierarchy between them, the relationship between the two legal systems is monistic.108Dualism, on the other hand, sees the two legal systems as distinct orders with no hierarchical order between them.109Finally, pluralism is a unique configuration according to which there is a heterarchical relationship between the “superconstitutional order” and the “subconstitutional orders”, not hierarchical and institutions in each legal order make competing claims about supremacy and on legal matters that affect both legal orders.110
Having said that, Art 158 of the Basic Law epitomises the interaction between the constitutional order of China and the subconstitution of Hong Kong and its impact of the separation of powers and in particular on the role of the judiciary.Article 158 in combination with Art 48(2)111allows the CE to trigger an interpretation from the NPC and thus to overturn a decision from the CFA.Interestingly, the CFA, in Lau Kong Yung ,112had reviewed whether the NPCSC interpretation upon the request by the CE was in accordance with the Basic Law and particularly Art 158.113
Since the courts in Hong Kong are bound by the interpretations of the NPCSC, it is evident that at any time the CE via an interpretation from the NPCSC has the power to reverse any decision of the CFA.An early example is the restatement of the CFA after Ng Ka Ling .114The Court's judgment on 29 January 1999 did not question the authority of the NPCSC to make an interpretation under Art 158 and stated that such interpretations have to be followed by the courts of the region.115The CFA repeatedly clarified the nature and the binding force of the NPCSC's interpretations on the Basic Law articles and declared the NPCSC's power of interpretation“is in general and unqualified terms”.116 *241 Eventually, the judicial review exercised by the courts of Hong Kong falls within the category of weak judicial review.While in systems with strong judicial review, the only way to reverse a court's decision is by amending the constitution, in Hong Kong, there is another way: the CE may seek an interpretation from the NPCSC in order to reverse the outcome of the court's decision.
7. Conclusion
Separation of powers has monopolised to a large extent the constitutional discourse in Hong Kong (and elsewhere).Indeed, since in Hong Kong there are no complete electoral processes like direct popular vote for the appointment of the CE, or the subnational legal order of Hong Kong is not represented in decision-making bodies in the China, then separation of powers is very important to hold institutions accountable.
That said, while the distinction between the executive and the legislature is sharp and clear, the role of the courts and in particular the scope of their judicial power are not clarified in the text of the Basic Law.When the courts have the power to intervene is also not clear, although some aspects in this regard have been clarified on a case-by-case basis.In this article, it was shown that the courts have ruled unconstitutional actions of LegCo and CE of Hong Kong based on separation of powers considerations, while also showing deference to these institutions, especially on political and public policy issues.
Altogether, separation of powers in multilayer constitutional orders is not simply a guarantee for liberty and a prerequisite for good governance.It is also a safeguard for the orderly interaction between the central and local authorities.As shown above, separation of powers and judicial/constitutional review have been perceived and integrated in the new constitutional/legal order of Hong Kong, ade facto subnational constitutionalism order, in their way.
1. . PhD in Law and HDR (Habilitation, France).Professor of Law, School of Law, City University of Hong Kong.
2. . PhD in Law (Oxon).Assistant Professor, School of Law, IE University, Madrid, Spain.This article was presented at 2015 ASLI (Asian Law Institute) Conference in Taipei and 2015 ICON-S (International Society of Public Law) Conference in New York, at which a number of participants provided their general comments.We wish to thank Joshua DH Karton, Gabriel Cruz, Mateja Steinbruck Platise and Zoltan Pozsar-Szentmiklosy, for their valuable comments.Our particular thanks shall go to Andra le Roux-Kemp and Shuhbankar Dam, colleagues at City University of Hong Kong, and to Cora Chan of the University of Hong Kong for their critical and helpful suggestions on the various drafts of it.Finally, we own deep gratitude to the anonymous reviewers of the article whose comments were not only insightful but also constructive.
3. . Quite central topics in the constitutional discourse among others were the political reform, the rights of indigenous people in the New Territories and the right of abode of Mainland children.
4. . Johannes Chan, for instance, suggests that it may be better to avoid the politically charged and inevitably controversial term “separation of powers”: see Johannes Chan and CL Lim (eds),Law of the Hong Kong Constitution(Hong Kong: Sweet and Maxwell, 2nd ed., 2015) p 49.
5. . Zhang Xiaoming,“Correctly Understanding the Salient Features of the Political Structure of the HKSAR”Liaison Office of Central People's Government in Hong Kong(12 September 2015, 11:28 p.m.), available at http://www.locpg.hk/jsdt/2015-09/12/c_128222889.htm (visited 5 February 2017).
6. . Xu Chongde and Xiao Weiyun hold firm to this position, and their theory has far-reaching impact on the study of the Basic Law.See MF Leung and Guobin Zhu,The Basic Law of the HKSAR: From Theory to Practice(Singapore: Butterworths, 1st ed., 1998) pp 99-107.
7. . Eric C Ip,“Constitutional Competition between the Hong Kong Court of Final Appeal and the Chinese National People's Congress Standing Committee: A Game Theory Perspective”(2014) 39Law & Social Inquiry824; Po Jen Yap,“10 Years of the Basic Law: The Rise, Retreat and Resurgence of Judicial Power in Hong Kong”(2007) 36CLWR166; Anthony Mason,“The Rule of Law in the Shadow of the Giant: The Hong Kong Experience”(2011) 33Sydney Law Rev623; Johannes Chan,“Basic Law and Constitutional Review: The First Decade”(2007) 37HKLJ407.
8. .(1999) 2 HKCFAR 4.
9. . This phenomenon according to Ginsburg and Posner distinguishes subconstitutions from ordinary constitutions as“the superior state in the two-tiered system reduces agency costs that would otherwise exist in the subordinate state”.See Tom Ginsburg and Eric A Posner, “Subconstitutionalism”(2010) 62Stanford Law Review1584, 1585.
10. .Ibid., p 1626.
11. . According to the weak form of judicial review, the legislative branch may displace the court's interpretation.See Mark V Tushnet, ‘‘Alternative Forms of Judicial Review” (2003) 101Mich L Rev2781, 2785. About the positive and the negative aspects of strong and weak judicial review, see Stephen Gardbaum,“Are Strong Constitutional Courts Always a Good Thing for New Democracies?”(2015) 53Columbia Journal of Transnational Law285;Tom Ginsburg and Mila Versteeg,“Why Do Countries Adopt Constitutional Review?”(2014) 30Journal of Law, Economics, and Organization587.
12. . Montesquieu,The Spirit of the Laws(Cambridge, New York: Cambridge University Press, 1st ed., 1989) p 156.
13. . MJC Vile,Constitutionalism and the Separation of Powers(Indianapolis: Liberty Fund, 2nd ed., 1998) p 19.
14. . Upon the real meaning of Montesquieu,ibid., p 94.
15. . His ideas are impressed in the three federalist papers: numbers 47, 48 and 51.Although the so-called Federalist Papers, a series of 85 essays signed by an author named by the pseudonym “Publius”, these three aforementioned papers are attributed to Madison.See Douglass Adair,“The Authorship of the Disputed Federalist Papers”(1944) 1 William and Mary Quarterly97.
16. . Ralph Ketcham (ed),Selected Writings of James Madison(Indianapolis: Hackett Publishing, 1st ed., 2006) p 115.
18. . Ginsburg and Versteeg estimate that only 38 per cent of all constitutional systems had constitutional review in 1951, but now this percentage is increased to 83 per cent. See Ginsburg and Versteeg (n 9 above). Law and Versteeg also observe that there is“the substantial increase over the last six decades in the proportion of constitutions that explicitly provide for some form of judicial review”.“In 1946, only 25% of countries had some form of judicial review explicitly entrenched in their respective constitutions; by 2006, that proportion had increased to 82%”.They further note that: “all forms of judicial review are included, regardless of whether review is performed by a court of general jurisdiction (as in the United States) or a specialized constitutional court (as in much of Europe); whether review occurs only in the context of a concrete dispute or instead in the abstract; or whether it is conducted before or after enactment of the legislation”. See David Law and Mila Versteeg,“The Evolution and Ideology of Global Constitutionalism”(2011) 99Cal L Rev1163, 1198, available at http://scholarship.law.berkeley.edu/californialawreview/vol99/iss5/1.
19. . About Judicial supremacy, see Larry Alexander and Frederick Schauer, “On Extrajudicial Constitutional Interpretation” (1997) 110Harvard Law Review1359; TRS Allan,Constitutional Justice: A Liberal Theory of the Rule of Law(Oxford: Oxford University Press, 2001).
20. . See Jeremy Waldron,Law and Disagreement(Oxford: Clarendon Press, 1999) and Adrian Vermeule,Law and the Limits of Reason(Oxford: Oxford University Press, 2008).
21. . This practice is also termed a dialectic judicial review.See Po Jen Yap,Constitutional Dialogue in Common Law Asia (Oxford: Oxford University Press, 2015).
22. . JWF Allison,English Historical Constitution: Continuity, Change and European Effects(Cambridge: Cambridge University Press, 1st ed., 2007) p 83.
23. . For further discussion, see Martin H Redish and Elizabeth J Cisar,“‘If Angels Were to Govern’: The Need for Pragmatic Formalism in Separation of Powers Theory”(1991) 41Duke Law Journal449, 466.
24. . Torsten Persson, Gérard Roland and Guido Tabellini,“Separation of Powers and Political Accountability”(1997) 112 The Quarterly Journal of Economics1163.
25. . About the divergent views on the relationship between the Central Government in Beijing and Hong Kong, see Cora Chan,“Reconceptualizing the Relationship between the Mainland Chinese Legal System and the Hong Kong Legal System”(2011) 6Asian Journal of Comparative Law1.
26. . Li CJ in Ng Ka Ling states that“The Basic Law is a national law and is the constitution of the Region”:Ng Ka Ling(n 6above), 26 [C].
27. . Basic Law, Art 2.
28. .Ibid., Arts 59-65.
29. .Ibid., Arts 66-79.
30. .Ibid., Arts 80-96.
31. . For example, Art 13 on foreign and external affairs and Art 14 on national defense and public order.
32. . See, for instance, the Provisional Constitution of Somalia (2012), Art 3; the Constitution of Morocco (2011), Art 113; the Constitution of Kosovo (2008), Art 4 and the Constitution of South Sudan (2011), Art 48.
33. . Basic Law, Art 11(2):“No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.”
34. . Eric Ip argues that“the legitimacy of the CFA's self-appointed constitutional role was long in doubt, at least on the Mainland Chinese side, due to this lack of textual reference”: See Ip (n 5 above) p 825.
35. . Basic Law, Art 17(3).
36. . The central role in the constitutional interpretation process is attributed to the NPCSC, and not to any Constitutional Court which does not exist in China.This allocation of powers is reaffirmed in the recent Decision of the Chinese Communist Party on the rule of law, which explicitly requires to“Perfect the constitutional supervision system of the National People's Congress and its Standing Committee, [and] complete procedures and mechanisms for constitutional interpretation”.See CCP Central Committee Decision concerning Several Major Issues in Comprehensively Advancing Governance According to Law adopted at the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party on 23 October 2014.
37. . Basic Law, Art 1.
39. . See Deng Xiaoping, Speech at a meeting with the members of the Committee for Drafting the Basic Law of the HSAR
16 April 1987 (1993), available at
https://dengxiaopingworks.wordpress.com/2013/03/18/speech-at-a-meeting-with-the-members-of-the-committee-for-drafting-the-basic-law-of-the-hong-kong-special-administrative-region/ (visited 6 February 2017).
40. . See, for example, Zhang Dinghuai and Wang Mengyang,“How to Understand the Salient Features of Hong Kong's Political Structure”(2016) 1Guowai Lilun Dongtai [Foreign Theoretical Developments]; Wang Yinjing,“Hong Kong and Macau Political System through Comparative Perspective: Features and Assessment”(2016) 1Xuehai [Learning Sea]; Hao Tiechuan,“On Political System of the HKSAR through the Lens of Sovereignty and Historical Tradition”(2015) 11 Faxue [Legal Science].
41. . This convention was later broken afterQi Yulingby the Supreme People's Court that declared in 2008 the interpretation onQi Yulingby the Court itself should no longer apply, and the precedent force of this case was thus eradicated.See Donald C Clarke,“Supreme People's Court Withdraws Qi Yuling Interpretation”(12 January 2009), available at http://lawprofessors.typepad.com/china_law_prof_blog/2009/01/supreme-peoples.html (visited 6 February 2017).
42. . For more details about the fact of the case, see Guobin Zhu,“Constitutional Review in China: An Unaccomplished Project or a Mirage?”(2010) 43Suffolk University Law Review625, 641.
43. . Ibid.
44. . Basic Law, Arts 59, 66 and 80.
45. . Basic Law, Arts 50 and 73(9), respectively.
46. . See comments made inIntroduction to the Basic Law of the Hong Kong Special Administrative Region(Beijing: Law Press, 2nd ed., 2009) pp 345-346.
47. . For more details, see Ma Ngok,“Executive-Legislative Relations: Assessing Legislative Influence in an Executive Dominant System”in Lau Siu-kai (ed),The First Tung Chee-hwa Administration: The First Five Years of Hong Kong Special Administrative Region(Hong Kong: Chinese University Press, 2002) pp 349-353.
48. . Basic Law, Art 43.
49. .Ibid., Art 56.
50. .Ibid., Art 48(3).
51. .Ibid., Art 48(4).
52. .Ibid., Art 55(1).
53. .Ibid., Art 48(4) in combination with Arts 62(1) and 73(4).
54. .Ibid., Art 50.
55. . However, it is argued that the Court of Appeal in HKSAR v Ma Wai Kwan, David was in fact the first to establish local constitutional review and some scholars have dubbed this case instead as Marbury of Hong Kong.See Albert Chen,“The Interpretation of the Basic Law”(2000) 30HKLJ380.
56. . Article 24(3), reads: “The permanent residents of the Hong Kong Special Administrative Region shall be: (1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region; (2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region; (3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);․․․”
57. . Immigration (Amendment) (No 3) Ordinance reads: “A person's status as a permanent resident under para.2(c) can only be established by his holding of: (a) a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document.”
58. .Ng Ka Ling(n 6above), 27.
59. .(2001) 4 HKCFAR 211.
60. .[2005] 3 HKLRD 561, [11](CFI).
Dicey,Introduction to the Study of the Law of the Constitution(Oxford: Oxford University Press, 1st ed., Vol 1, 2013) p 27.
62. . See Todd Schneider,“David v Goliath: The Hong Kong Courts and China's National People's Congress Standing Committee”(2003) 20Berkeley Journal of International Law575, 582.
63. .Ng Ka Ling(n 6above), 26 [A]-[B].Regarding the criticism on that case, see Danny Gittings,Introduction to the Hong Kong Basic Law(Hong Kong: Hong Kong University Press, 2nd ed., 2016) p 182; and Ip (n 5 above) p 832.
64. . Regarding the distinction betweenratio, see Rupert Cross and JW Harris,Precedent in English Law(Oxford: Clarendon Press, 4th ed., 1991) p 40.
65. .[1997] HKLRD 761.
66. .Ng Ka Ling(n 6above), 26 [A].
67. .Ibid., 26[B].
68. .HCAL 31/2015,[2015] HKEC 1034, [33].
69. . Ng Ka Ling triggered criticism from the Chinese leaders and leading constitutional scholars, see Eric C Ip,“The Democratic Foundations of Judicial Review under Authoritarianism: Theory and Evidence from Hong Kong”(2014) 12 ICON330, 338.
70. . Constitution of China, Art 57.
71. . For more detailed analysis about the assumption that the Basic Law ranks equally to the Constitution of China, see Albert HY Chen,“The Court of Final Appeal's Ruling in the ‘Illegal Migrant’ Children Case: Congressional Supremacy and Judicial Review”in Johannes MM Chan, HL Fu and Yash Ghai (eds),Hong Kong's Constitutional Debate: Conflict Over Interpretation(Hong Kong: Hong Kong University Press, 2000) pp 73-76.
72. . Basic Law, Art 158(2).
73. . In Ng Ka Ling , the CFA established the two conditions test.SeeNg Ka Ling(n 6above), 31 [F]: “The Court of Final Appeal was under a duty to make a reference to the NPCSC for interpretation if two conditions (the conditions) were satisfied.First, if the provision was an excluded provision (the classification condition) and secondly, if the Court of Final Appeal in adjudicating the case needed to interpret such provisions and such interpretation would affect the judgment on the case (the necessity condition)”. And 31 [B].
74. .(1999) 2 HKCFAR 300. At the same period, another judgment was delivered by the CFA in the content of which the term separation of powers can be traced.In particular, inHKSAR v Ng Kung Siu, the so-called Flag Desecration case, Bokhary PJ in his concurring opinion stated that: “when a matter of the present kind comes before the courts, the question is not which approach the judges personally prefer.It is whether the approach chosen by the legislature is one permitted by the constitution.This does not involve deference to the legislature.It is simply a matter of maintaining the separation of powers”. SeeHKSAR v Ng Kung Siu(1999) 2 HKCFAR 442, 466.
75. .Lau Kong Yung(n 72above), 345.
76. .Chong Fung Yuen(n 57above).
77. .Ibid., 223F-H.
78. . Hence, the Court has the power to review the constitutionality of acts of LegCo.For instance, in Kong Yunming v Director of Social Welfare , the Court ruled unconstitutional limits on welfare.See(2013) 16 HKCFAR 950. But it ruled compatible with the Basic law act which prescribed what conduct shall constitute criminal offence and what punishment shall be imposed.See Lau Cheong v HKSAR(2002) 5 HKCFAR 415. Also inSecretary for Justice v Lau Kwok Fai, the Court argued in favor of the law making power of LegCo to alter with legislation the terms of employment contracts between public officers and the government.See(2005) 8 HKCFAR 304.
79. .(2000) 3 HKCFAR 392.
80. .Ibid., 406, it reads“that judges‘cannot aid the Legislature's defective phrasing of the Act’or‘add, and mend, and, by construction, make up deficiencies which are left there’[․․․]; and that this would obscure the constitutional limits of the separation of powers”.
81. .(2003) 6 HKCFAR 570.
83. . Mok Charles v Tam Wai Ho(2010) 13 HKCFAR 762.
84. .[2002] 3 HKC 457.
85. .(2006) 9 HKCFAR 614.
86. .Ibid.,[28].
87. . Nonetheless, the CFA also used the principle of separation of powers in order to limit the executive power in contrast to the legislative power.For instance, inDragon House Investment Ltd v Secretary for Transport, the Court drew limits on the law making power of the executive, holding that an executive order cannot repeal primary legislation.See(2005) 8 HKCFAR 668, 688.
88. . However, the court has exercised deference in ad hoc cases such as socioeconomic matters, see eg, Fok Chun Wa v Hospital Authority(2012) 15 HKCFAR 409and Kong Yunming v Director of Social Welfare[2009] 4 HKLRD 382.
89. .Ng Ka Ling(n 6above).
90. .(2002) 5 HKCFAR 1.
91. .Ibid., 55.
92. .(2002) 5 HKCFAR 480.
93. .C v Director of Immigration(2013) 16 HKCFAR 280, [81]: “Although judicial review has expanded beyond its earlier boundaries and now extends to administrative powers generally, it is important to recognize that it is subject to a number of limitations.This is not the occasion to discuss them generally.It is sufficient here to identify as examples two substantial and overlapping limitations, one arising from separation of powers considerations and the other arising from the requirement of justiciability.The separation of powers may deny jurisdiction to the courts when the function involved is exclusively the province of the legislature or the executive”.
94. . Ubamaka v Secretary for Security (2012) 15 HKCFAR 743; Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45and GA v Director of Immigration(2014) 17 HKCFAR 60.
95. .(2006) 9 HKCFAR 441.
96. .Ibid.,[61].
97. .[2011] 2 HKLRD 555.
98. .Ibid., 557.
99. .(2014) 17 HKCFAR 689.
100. .Ibid.,[28].
101. .Chief Executive of the HKSAR v President of the Legislative CouncilHCAL 185/2016, HCMP 2819/2016,[2016] HKEC 2315, [33].
102. .Ibid.,[52]-[54].
103. . Another aspect of self-restriction is the request from the CFA for an interpretation from the NPCSC. About the nature and the scope of the interpretation power of the NPCSC, see Yash Ghai,Hong Kong's New Constitutional Order(Hong Kong: Hong Kong University Press, 2nd ed., 1999) p 198.Under Art 158,“the power of interpretation of this Law [the Basic Law] shall be vested in the Standing Committee of the National People's Congress”, while in the same article, interpretation power on the Basic Law provisions that“are within the limits of the autonomy of the Region [Hong Kong]”is granted to Hong Kong courts.See Basic Law, Art 158(1) and 158(2).In fact, in 2011, the CFA referred a case to the NPCSC in order to clarify the legal framework of state immunity in Hong Kong after the handover.See Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 2)(2011) 14 HKCFAR 395. About concerns on the procedure seeking an interpretation from the NPCSC, see Legislative Council Panel on Administration of Justice and Legal Services, Background brief on“Procedure for seeking an interpretation of the Basic Law”Prepared by the Legislative Council Secretariat (LC Paper No CB(4)679/12-13(04), 24 May 2013).
104. . Ginsburg and Posner (n 7 above).
that I simply refer to as the classic regime of sovereignty.The regime covers the period of international law and regulation from 1648 to the early twentieth century (although elements of it, it can be argued plausibly, still have application today)”. See David Held,“The Changing Structure of International Law: Sovereignty Transformed?”in David Held and Anthony McGrew (eds),The Global Transformations Reader(Cambridge: Polity Press, 2003) p 162.We are living the end of the “modern period”, and a new legal status quo, the postmodern period, is emerging.Boaventura de Sousa Santos uses the term “post modern” saying“it is the purpose of the book as a whole to identify some of the constitutive elements of a postmodern understanding of law”.See Boaventura de Sousa Santos,Toward a New Common Sense: Law, Science and Politics in Paradigmatic Transition(London; New York: Routledge, 1995) p 5.
106. . Between the central authorities and the decentralized/devolved institutions, a vertical balance and share of powers are formed, institutionalized and constitutionalized.Such vertical balance of powers, for instance in federal states, has gained its autonomy, and in literature it is analyzed as federalism.
107. . Vernon Bogdanor,Devolution in the United Kingdom(Oxford: Oxford University Press, 2001).
108. . See Guobin Zhu,“The Composite State of China under ‘One Country, Multiple Systems': Theoretical Construction and Methodological Considerations”(2012) 10Int J Constitutional Law272.
109. . Ginsburg and Posner (n 7 above).
110. . H Kelsen,Pure Theory of Lawtranslated by Max Knight (Berkeley: University of California Press, 1978) pp 198-200.
111. .Ibid., 328.
112. . Neil Walker, “The Idea of Constitutional Pluralism” (2002) 65The Modern Law Review317.
113. . Basic Law, Art 48(2).
114. .Lau Kong Yung(n 72above).
115. .Ibid., 322-324.
116. . Ng Ka Ling v Director of Immigration (No 2)(1999) 2 HKCFAR 141.
117. .Ibid., 142[D].
