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of existing terms of reference; the latter is removing or withdrawing
powers of enquiry that have already been conferred.
The Governor in Council confers jurisdiction on the Commission
of Inquiry and, up until the time that it has performed its task (1.e.
reported to the Governor), he may revoke its jurisdiction. There is no
legal restraint on his powers to do this by issuing directions under
Section 3(c). There may be, however, good reasons why he should choose
not to exercise his powers in this way which is, so far as the author can
gather, unprecedented in England and Hong Kong.
Any directions given under Section 3(c) can only relate to
the terms of reference (i.e. matters of jurisdiction of the Commission
of Inquiry). If a direction were to be issued that question of the
allegations of homosexuality against the C.P. were outside the terms of
reference the Commissioner might allow the matter to be explored on the
basis of assessing the C.P.'s credibility (there have been hints of such
an approach by Beveridge, a.C.). If the Governor in Council purported
to direct under Section 3(c) that" the allegations of homosexuality against
the C.P. are outside the terms of reference for all purposes, including
the purpose of assessing the credibility of witnesses then the under-
lined part would be ultra vires the powers of the Governor in Council and
would lack legal effect. The reasons for this are: the assessment of
the value of evidence is a function reserved to the Commissioner by the
Ordinance which cannot be usurped by the Governor in Council; directions
under Section 3(c) can only relate to terms of reference; ultra vires
directions are, in law void and of no effect.
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/ Section 3(c)
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