6
As we have already seen, according to Sir Kenneth Roberts-Wray, (p. 339) the Governor is always bound to observe instructions of the sovereign communicated
through the Secretary of State. It may be that that the reservation in
Article XVI is therefore otiose. In any event, in the immediate context
I would read that reservation as saying "if there are instructions in force
as to how and in what circumstances public officers may be suspended, the
Governor must observe them. If there are not, he may suspend wherever it
appears to him there is sufficient cause".
Colonial Regulations
Goodstadt and Li, in their article, conclude that except as they
are expressly applied by ordinance or by Government Regulation or incorporated into Government Regulations, Colonial Regulations do not purport to apply
generally to the Hong Kong Public Service nor are they regarded as so applying
by the Government of Hong Kong.
In my submission, that is an unwarranted conclusion: but one
which follows inevitably from their failure to recognise the continuing
significance of the prerogative powers. They are "Directions to Governors for general guidance given by the Crown through the Secretary of State for Foreign and Commonwealth affairs". In other words, the Sovereign is advising
her Governor how his prerogative powers should be exercised. It may be, on
the basis that there is a material distinction between "instructions" which
the Governor is bound to follow, and "Directions" which are only for "general
guidance", that Colonial Regulations are not binding on the Governor.
berts-ray at p. 234 states of Colonial Regulations that "they are in
effect directions of Her Majesty", but he assumes that the use of the word
"instructions" was deliberately avoided. In reality the Governor would not
disregard Colonial Regulations unless they were countermanded by other, perhaps less formal, instructions, in which case I would cont end he was perfectly justified in doing so. The important point is that the Colonial Regulations presently in force, whether or not they are tantamount to
instructions of the Crown for the purposes of Article XVI, do not place any
constriction on the power given to the Governor under that Article to suspend public officers. With the exception of a telegram transmitted by the Secretary of State for the Foreign and Commonwealth Office dated 6th October 1977, advising amendment of Civil Service Regulations to provide for suspensions, there is to my knowledge no extant advice, instruction, or communication of any kind issued on behalf of the Crown to the Governor upon the exercise of his power to suspend. I shall discuss the telegram later.