对一国两制的个人看法（一国两制漫谈⑧）

作者：萧平

XIAO PING

资深时事评论员。

Why is HK's political system not one of ‘separation of powers’?

香港回归前由《英皇制诰》、《皇室训令》规定的政治体制，回归后由基本法确立的政治体制，都不是三权分立，而是行政主导。所不同的是，回归前是行政集权，回归后是行政主导，行政与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.

一直以来，英国在本土实行议会至上体制，但在其殖民统治地方均实行集权乃至独裁的统治方式。在香港，英皇任命港督，港督提名并经英国外交联邦事务部同意委任行政、立法两局议员和其他高级官员，港督集行政、立法大权于一身。在港英统治150多年的时间里，经历了一个由行政独裁到行政集权，再到有限度开放选举条件下行政主导的过程。

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.

最后一任港督彭定康在回归前的过渡期启动激进政改，仓促扩大选举，美其名曰“加快民主步伐”，实则是强立法弱行政，给回归后的行政主导制造麻烦。这一点，至今许多香港人都没有看清楚。

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.

现代社会都有行政、立法、司法三种公权力，不过三权之间的关系不尽相同。香港虽有三权分立之形，但行政权明显居于更权威更主动的地位。政府拥有立法创议权，政府议案优先列入立法会议程，简单多数通过，体现行政优先，议员议案的通过则有更高的门槛。基本法74条规定，立法会议员不能提出涉及公共开支、政治体制及政府运作的法案；如果提出涉及政府政策的法案，必须事前得到行政长官的书面同意。可惜这一条没有很好执行。行政对司法也有制约，包括行政长官有权依照法定程序任免各级法院法官，有权赦免或减刑，行政长官就国家行为的事实问题所发出的证明文件对法院有绝对的约束力等。

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月全国人大审议基本法，起草委员会主任委员姬鹏飞作说明，强调“行政机关和立法机关之间的关系应该是既相互制衡又相互配合；为了保持香港稳定和行政效率，行政长官应有实权，但同时也要受到制约”。有别于港英行政主导的集权色彩，基本法确立行政主导、司法独立、行政与立法互相制衡又互相配合的政治体制，目的是建立一个在民主参与和民主监督基础上的高效政府，有香港学者称之为“行政主导下的三权分立”。

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".

行政主导与立法主导、三权分立是不同的管治模式。美国是典型的三权分立，三权之间分庭抗礼，美国宪法中的排序是国会在前，总统和司法在后。英国是立法主导，实行议会内阁制，行政权由议会派生而来，受议会制约。因为立法与司法系统通常没有上下隶属关系，所以立法主导、三权分立适合于国家层面，而不适合单一制国家受中央管辖的地方。昔日是英国的“海外属土”，现在是中国的地方行政区，这就决定了香港只能行政主导，不能三权分立。

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.

原文刊登于4月16日《中国日报香港版》

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