Critically Evaluate the Extent the Doctrine of the Separation of Powers Underpin the Basic Law.

1488 WordsDec 5, 20126 Pages
Critically evaluate the extent the doctrine of the separation of powers underpin the Basic Law. ---------------------------------------------------------------------------------------------------- INTRODUCTION According to Wesley Smith, “The doctrine of separation of powers is a general technique for limiting the ability of government officials to wield excessive powers to the detriment of citizens’ rights. The three types of power (the legislative, executive and judicial) should be distributed amongst three distinct branches of government; no branch should exercise more than one variety of function, and no person should belong to more than one branch. Each branch is balanced by the others, some kind of parity is established…show more content…
The judicial system previously practised shall be maintained except for the establishment of the Court of Final Appeal (CFA) (Article 81). CFA has final adjudicating power and may invite judges from other common law jurisdictions to sit on it (Article 82). Courts may refer to precedents of other common law jurisdictions (Article 84). B. Checks & Balances 1. Power of Judicial Review Common law system is preserved (Article 8). Naturally, Courts enjoy power of judicial review. Hong Kong residents have rights to review executive acts in the courts (Article 35). Courts can interpret provisions of the Basic Law within the limits of its autonomy (Article 158). Hong Kong Courts recognized the doctrine of separation of powers underpin the Basic Law and have safeguarded it in numerous cases[2]. They have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. For example, in Leung Kwok Hung v President of Legislative Council of HKSAR[3], CFA affirmed a procedural rule of LegCo which prevent private members from introducing amendment with a charging nature to the bills and ruled that it does not contravene the Basic Law. However, regards have to be given to the presence of a higher power – the NPCSC, which has the ultimate authority for interpretation of the Basic Law (Article 158). 2. Appointment & Dismissal of Judicial Officers Judges and judicial officers are appointed/ removed by the

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