The separation of powers is not a necessary condition for democracy, according to President of the Legislative Council Jasper Tsang.
In a column published in local Chinese-language media AM730 on Thursday, Tsang wrote that separation of powers is not practised across all democratic polities.
Using the United Kingdom as an example, Tsang wrote that the country’s political system can be described as “parliamentary sovereignty,” an arrangement in which the legislative body is fused with the executive and exercises supremacy over all other government institutions, including judicial bodies.
Tsang wrote that the judiciary in the UK was not separated from the executive and legislative branches until 2005. Previously, the Lord Chancellor—who is also a member of the cabinet—was the head of the judiciary and President of the Courts of England and Wales.
By comparison, Tsang said that the presidential system in the US is an example of the separation of powers. “The parliamentary system and the presidential system are both democratic and have their pros and cons. It cannot be said which one is better. Therefore, to be a good system, separation of powers is not a necessary condition,” he concluded.
Meanwhile, Chief Justice Geoffrey Ma Tao-li said on Wednesday that judicial independence is specified in the Basic Law.
“I would ask people to read Articles 2, 19 and 85. The second point deals with equality before the law. This is Article 25 of the Basic Law which prescribes everybody is equal before the law without exceptions. This applies to everyone.”
Rao Geping, a top mainland legal scholar and member of Beijing’s Basic Law Committee, said on Tuesday that not all Hong Kong judges have an accurate and full understanding of the Basic Law.
Secretary for Justice Rimsky Yuen Kwok-keung said on Wednesday that “in many cases when judges use the term ‘separation of powers’ they actually mean judicial independence.”
Yuen said it was meaningless to argue over who was right or wrong, and that the Basic Law had established boundaries between the executive, legislature and judiciary. Judicial independence was clearly set out in the Basic Law and has been consistently protected, Yuen said.
The comments came after China Liaison Office director Zhang Xiaoming courted controversy on Saturday by saying that the Chief Executive has a “special legal position which overrides administrative, legislative and judicial organs,” and that separation of powers “is not suitable for Hong Kong.”
Chief Executive Leung Chun-ying confirmed to reporters on Wednesday that his position “is indeed transcendent.”