1.
SECRET
A Paper on the Question of Revision of the Terms of Reference of the MacLennan Commission
The powers under the Ordinance :
follows :
ANNEX
平
Section 3 of the Commissions of Inquiry Ordinance provides as
"The Governor in Council may specify the subject of the inquiry and may direct ...(c) what matters should be
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outside the terms of reference of the Commission."
2.
What are the limits of this power ?
This Commission, like all statutory tribunals, is bound to
keep within its jurisdiction (i.e. its power to enquire into questions
for the purpose of making findings upon them). Its jurisdiction is
delineated by the terms of reference. Unfortunately, the terms of reference
have been vaguely expressed. Normally a Commissioner would, at the outset,
interpret his terms of reference and thereby remove the ambiguities.
Yang J. has refused to do this. If the Governor in Council was to issue
a direction under Section 3(c) it could have effect in one of two ways,
viz; either it would clarify an existing ambiguity in the terms of reference
by identifying and removing an issue; or it could remove jurisdiction to
enquire into an issue presently clearly within the terms of reference. An
example of the former would be a direction that the question of the
Government's policies towards the employment of homosexuals in the Civil
Service is outside the terms of reference. An example of the latter would
be a direction that the involvement of the C.P. in the Yuen Long matter is
The power is essentially a clarification
outside the terms of reference.
of existing
SPCKET