作者：蕭平
XIAO PING
資深時事評論員。
Why is HK's political system not one of 『separation of powers』?
香港回歸前由《英皇制誥》、《皇室訓令》規定的政治體制，回歸後由基本法確立的政治體制，都不是三權分立，而是行政主導。所不同的是，回歸前是行政集權，回歸後是行政主導，行政與立法相互制衡又相互配合。
The political system established under the Hong Kong Letters Patent and Hong Kong Royal Instructions during British rule was not one of "separation of powers"; neither is the one established under the Basic Law of the Hong Kong Special Administrative Region after reunification. Rather, both are executive-led systems. What sets them apart is that power was centralized in the executive branch before 1997, whereas for the executive-led model adopted after reunification, the executive and the legislature work in coordination with checks and balances.
一直以來，英國在本土實行議會至上體制，但在其殖民統治地方均實行集權乃至獨裁的統治方式。在香港，英皇任命港督，港督提名並經英國外交聯邦事務部同意委任行政、立法兩局議員和其他高級官員，港督集行政、立法大權於一身。在港英統治150多年的時間裡，經歷了一個由行政獨裁到行政集權，再到有限度開放選舉條件下行政主導的過程。
In contrast with the Westminster model the United Kingdom had been practicing at home, it chose to centralize all power in the hands of the governors or even resorted to an authoritarian approach in its colonial rule over the territories it occupied overseas. In Hong Kong before reunification, the British monarch appointed the governor, who nominated and, upon the approval of the Foreign and Commonwealth Office, appointed members of both the executive and legislature as well as other senior officials. In effect, the governor centralized all power over both the executive and legislature in his hands. During some 150 years of British rule, Hong Kong’s political system transited from one allowing authoritarian executive power to one allowing the centralization of all power in the hands of the executive, and then to an executive-led model allowing elections on a very limited scale.
最後一任港督彭定康在回歸前的過渡期啟動激進政改，倉促擴大選舉，美其名曰「加快民主步伐」，實則是強立法弱行政，給回歸後的行政主導製造麻煩。這一點，至今許多香港人都沒有看清楚。
Chris Patten, the last governor of Hong Kong, launched a wave of radical political reforms during the transition period before the city's return, including hastily expanded elections. In the name of "accelerating democratic development", Patten was in effect trying to give more power to the legislature at the expense of the executive branch, creating trouble for executive-led governance after 1997. Even up to now, many in Hong Kong still can't discern it.
現代社會都有行政、立法、司法三種公權力，不過三權之間的關係不盡相同。香港雖有三權分立之形，但行政權明顯居於更權威更主動的地位。政府擁有立法創議權，政府議案優先列入立法會議程，簡單多數通過，體現行政優先，議員議案的通過則有更高的門檻。基本法74條規定，立法會議員不能提出涉及公共開支、政治體制及政府運作的法案；如果提出涉及政府政策的法案，必須事前得到行政長官的書面同意。可惜這一條沒有很好執行。行政對司法也有制約，包括行政長官有權依照法定程序任免各級法院法官，有權赦免或減刑，行政長官就國家行為的事實問題所發出的證明文件對法院有絕對的約束力等。
Modern societies have three kinds of public power, namely the executive, legislative and judicial power; their relationship with each other varies across the globe. Hong Kong's governance model has the shape of "separation of powers", but the executive branch is vividly in a more authoritative position and plays a more active role in governance. The SAR government has the right of legislative initiative; government bills take priority on the agenda of the Legislative Council, reflecting the priority the executive branch enjoys over members of LegCo, whose bills need to undergo more procedures. According to Article 74 of the Basic Law, lawmakers cannot introduce bills relating to public expenditure, political structure or the operation of the government; they can introduce bills relating to government policies only after securing the written consent of the chief executive. Unfortunately, this article has not been effectively enforced. The executive branch can also impose checks and supervision on the judiciary: The chief executive has the authority to appoint and remove court judges in accordance with legal procedures. The chief executive also has the authority to remit or commute sentences meted out by judges; and the certificates issued by the chief executive on questions of fact concerning acts of state are binding on the courts.
1990年3月全國人大審議基本法，起草委員會主任委員姬鵬飛作說明，強調「行政機關和立法機關之間的關係應該是既相互制衡又相互配合；為了保持香港穩定和行政效率，行政長官應有實權，但同時也要受到制約」。有別於港英行政主導的集權色彩，基本法確立行政主導、司法獨立、行政與立法互相制衡又互相配合的政治體制，目的是建立一個在民主參與和民主監督基礎上的高效政府，有香港學者稱之為「行政主導下的三權分立」。
In March 1990, when the National People's Congress was deliberating the Basic Law, Ji Pengfei, chairman of the Drafting Committee of the Basic Law of the Hong Kong SAR, emphasized that "the executive and the legislature should maintain checks and balances while coordinating with each other". "To maintain Hong Kong's stability and administrative efficiency, the chief executive must have real power that at the same time should be subject to checks and supervision." Distinct from the executive-led model, which centralized all power in the hands of the governors under British rule, the Basic Law prescribes a political system featuring an executive-led governance model, an independent judiciary and mechanisms to facilitate checks and balances between the executive branch and the legislature, which also work in coordination, with the aim of establishing an efficient government amid democratic participation and democratic supervision. Some scholars in Hong Kong refer to it as "separation of powers under an executive-led system".
行政主導與立法主導、三權分立是不同的管治模式。美國是典型的三權分立，三權之間分庭抗禮，美國憲法中的排序是國會在前，總統和司法在後。英國是立法主導，實行議會內閣制，行政權由議會派生而來，受議會制約。因為立法與司法系統通常沒有上下隸屬關係，所以立法主導、三權分立適合於國家層面，而不適合單一制國家受中央管轄的地方。昔日是英國的「海外屬土」，現在是中國的地方行政區，這就決定了香港只能行政主導，不能三權分立。
Executive-led, legislature-led and separation of powers are distinct models of governance. The United States' system is a typical model of separation of powers. In the US Constitution, the Congress comes before the president and the judiciary. The UK operates politically under a legislature-led system or a parliamentary system, where the executive derives its power from the Parliament and is restricted by the Parliament. Both the legislature-led and "separation of powers" models are only suitable for sovereign states; they are not appropriate political structures for regional administrations under a central government. As a special administrative region of China, Hong Kong can only adopt an executive-led governance model. Separation of powers is out of the question.
原文刊登於4月16日《中國日報香港版》