Separation of Powers and Universal Suffrage
The introduction of universal suffrage for the selection of the Hong Kong Chief Executive is often portrayed as the answer to the problems afflicting the executive-legislative relationship in Hong Kong. But even in the increasingly unlikely event that a consensus can be reached on the necessary electoral methods, the introduction of universal suffrage would, by itself, do little to address some of the structural problems that spring from the strong system of separation of powers — and, particularly, separation of persons — that exists under the Hong Kong Basic Law.The near total separation of membership of the executive and legislature in Hong Kong weakens the political party system and creates the potential for deadlock between the two branches of the political structure. Such structural issues will need to be addressed alongside the introduction of universal suffrage.If the introduction of a parliamentary system is considered too radical a solution in Hong Kong, such reforms should instead focus on finding the maximum cross membership possible within the present constitutional structure, and improving channels of communication between the executive and legislature. Such reforms would also offer hope for addressing some of the problems currently afflicting the executive-legislative relationship in Hong Kong, even if consensus cannot be reached on the introduction of universal suffrage.
The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy
According to article 16 of the French Declaration of the Rights of Man and of the Citizen of 1789, 'A society where rights are not secured or the separation of powers established has no constitution at all'. Together with representative government, which to a large extent was assimilated to the second, these two principles have defined constitutionalism. In recent years. however, the first has come to predominate. This article suggests an alternative story. I shall argue that both historically and substantively liberal rights-based constitutionalism must be located within a more republican conception of the constitution as a system of politics.’ I begin by analysing the main features and problems of the doctrine of the separation of powers, and its relationship to rights and the rule of law. I then survey the historical development of the theory. I note how it was first combined with organic theories of mixed government and the balancing of powers within the body politic, and then transformed by the view of political societies as a popular construct and incorporated within representative democracy.
A Right-Based Critique of Constitutional Rights
'Individuals have rights, and there are things no person or group may do to them (without violating their rights)." 'Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.'2 'There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.'3 These are familiar propositions of political philosophy. What do they imply about institutions? Should we embody our rights in legalistic formulae and proclaim them in a formal Bill of Rights? Or should we leave them to evolve informally in dialogue among citizens, representatives and officials? How are we to stop rights from being violated? Should we rely on a general spirit of watchfulness in the community, attempting to raise what Mill called 'a strong barrier of moral conviction' to protect our liberty?4 Or should we also entrust some specific branch of government-the courts, for example-with the task of detecting violations and with the authority to overrule any other agency that commits them?