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mean a 'parliament', but strictly speaking, only the Legislative Council is the law-making body. While some think a 'ministerial system' may not necessarily be a 'cabinet system' nor a 'presidential system', the scholars generally consider it as a form of 'cabinet' or 'presidential' system. As Hong Kong is today still under British rule, the proposal of a 'ministerial system' possibly leads one to think that it is born out of the British cabinet system. So, I shall start by examining the British cabinet system to see if it is applicable to Hong Kong. If the proposed 'ministerial system' is modelled on the British cabinet system, applicability of the latter would mean feasibility of the former.
However, before coming to the main theme, I should review briefly the relationship between Hong Kong and Britain today and that between Hong Kong and China after 1997, so that the points and conclusion of my analysis could be better understood. Hong Kong being a British colony is completely different from the 'independent states' such as Canada and Australia which are sister states on an equal footing with Britain. They are political entities enjoying independent sovereignty, and they may well adopt the 'cabinet system'. Hong Kong is a local government all the time, and still under the British rule. By 1997, although enjoying a high degree of autonomy, Hong Kong is still not a 'political entity', but only a 'local government' under the sovereignty of China, as a son to the father.
While it is absolutely appropriate for 'independent states' in the British Commonwealth to adopt the 'cabinet system', I have never heard of a government of the nature of a local authority adopting the 'cabinet system'. Even though we may think that a special system is needed to match the special geographical and political situation of Hong Kong, in any case, reforms in the system of government in Hong Kong must not contravene the letter and spirit of the Sino-British agreement. The reforms must be considered in line with the system of government after 1997. But an answer to what exactly should we do lies in the Basic Law. What I am going to discuss is whether or not the 'cabinet system' conforms to the letter and spirit of the Sino-British agreement.
The cabinet system was first developed in England which is known as the mother of the cabinet system. Now, let us first take a look at the factors of its development, before we analyse whether or not it is applicable to Hong Kong. Why should we examine the development of the British system instead of that of Germany, Italy or Japan? Though the British system acquired its legal status (the Ministers of the Crown Act in 1937) far later than that of the other countries, its embryonic form did appear as early as the 17th Century based on political conventions accumulated bit by bit in history. It was evolved from the Council of the Nobility (Curia Regis) which had gatherings on fixed dates and locations called 'grand meetings'. When the king was on an inspection tour and could not attend the grand meetings, he would call 'mini meetings' among the few nobles in his company to see to the administrative matters. The mini meetings dealt with important and confidential matters and gradually evolved into an executive organ, and later as representative of the king to discharge his official duties. It was then re-titled the Privy Council. In 17th Century when membership of the Privy Council was becoming bigger and bigger, King Charles II selected a few of his trusted followers to discuss the major national issues in a cabinet in his Palace. That is how the name 'cabinet' came about. At that time, members of the cabinet were only followers of the king and had no idea at all of accountability or the spirit of democracy. So, the British cabinet system is only a product of history rather than a rationally designed institution. And the operation of the system is mostly based on political conventions rather than stipulations of the law. An obvious example is that the cabinet must resign if an important bill it presents is not endorsed by the Parliament. This is purely traditional, not a requirement of the law.
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into an executive organ, and later as representative of the king to discharge his official duties. ...
Why is the 'cabinet system' not suitable for Hong Kong? There are a number of reasons, but the most important is that the cabinet system, if adopted, will contravene the principle and spirit of the Sino-British Joint Declaration and Hong Kong is in no position to do so.
Why do I paint such a serious picture? According to Annex I of the Sino-British Joint Declaration, the system of government in Hong Kong after 1997 will basically be composed of three independent organs of state power. That is to say, the executive, the legislature and the judiciary will be independent of one another. "The chief executive will be appointed ... on the basis of the results of elections or consultations. The legislature shall be constituted by elections. The executive authorities shall abide by the law and shall be accountable to the legislature ... The courts shall exercise judicial power independently and free from any interference ..." These provisions clearly set out that the government of Hong Kong after 1997 will basically be a system of independent executive, legislative and judicial powers.
As a government of the 'cabinet system' is based on that of accountability, the executive and legislative powers are interlocked with each other. The interlocking mechanism is, therefore, an important basis of the system of accountability. Under the so-called interlocking mechanism, a government of the cabinet system will, on the one hand, present policies for discussion of, and on the other, enforce the laws enacted by the legislature. The government must be able to guide the legislature as well as the executive organs, or else the laws enacted may not agree with its policies, nor can its policies be put into practice. The cabinet's responsibility is to lay down the policies, while the government must exercise both legislative and executive powers to give expression to its stand. The government must bear all responsibilities for any mistakes in its policies. It will have to resign en bloc in case of disapproval of its major policies by the legislature, severe censure against implementation of, or failure to carry out its policies. In the event of resignation of the cabinet, the head of state should find someone to form a new cabinet to carry on the government. The head of state should be a figurehead only in the cabinet system, for if he is to decide on policies, how could a cabinet taking orders from him be answerable ...