One Country, Two Stances on Separation of Powers: Tensions Over Lack of Parallelism between the National and Subnational Levels

Abstract

Experience in numerous jurisdictions with separate constitutional documents at the national and subnational levels demonstrates a strong pattern of parallelism in the type of structure adopted for the executive-legislative relationship at both levels, even when the constitutional structure at the two levels differs significantly in other respects. Whichever of the many variants of separation of powers is adopted at the national level tends to be mirrored at the subnational level, even when there is no constitutional requirement for such parallelism. Tensions are not uncommon in the relatively few jurisdictions where the structures at the two levels do diverge, sometimes resulting in changes at either the subnational or national level to bring the structures at the two levels more closely into parallel. The Hong Kong Special Administrative Region occupies an unusual place in this pattern. On the one hand, under the one country two systems principle it is a fundamental principle of constitutional design that the system which applies at the subnational level must differ in important respects from the national system that exists in most other parts of China. Nonetheless, the central authorities strongly expressed preference for the implementation of a system of executive-led government in Hong Kong would appear to reflect a wish to parallel, at least in part, the system that applies in practice at a national level. This paper argues that, given the tensions that invariably arise from a lack of parallelism between the national and subnational levels, it is not surprising to see friction over the Hong Kong courts’ finding of the existence of a system of separation of powers under the Hong Kong Basic Law, a system expressly rejected at a national level. While some degree of tension may be inevitable, it could be better managed than has been the case so far, particularly by providing greater clarity about which variant of separation of powers exists under the Hong Kong Basic Law.