22-APR-1991 17:33
CONSTITUTIONAL AFFAIRS BR
852 840 1976
P.01
:
20
The Dilema
It is
..
common yzound that the Governor has only... once purported to delegate his power to appoint magistrates and this is evidenced by the minute I have referred "to" dated 14th February 1974.
!
It is common ground that this 1974 delegation is expressed solely in terms of section 5 of the Mayistrates Ordinance.
It is common ground that there has been no separate delegation under Article XIV of the Lettera Patent.
How then Can a delegation under Article XIV of the.... Letters Patent be relied upon?
Mr. Lee submits that the Governor's power of appointment of Magistrates unuer Article XIV need not be a written delegation (or sub-delegation,
(or sub-delegation, as Mr. Keane prefers to call it) and ne further submits that such delegation neea not be gazetted.
MI:
Lare
the
also
Lee suomite that assuming the Governor has power to deleyate under section 5 of the Magistrates Ordinance and assuming that the Article XIV powers delegable, we are in the position of having parallel powers of appointment, firstly under Article XIV and, secondly. under section 5 of the Magistrates. Ordinance when read with section 63 of Cap. 1 These two powers are consistent wich each other, so submits Mr.
Mr. Lee.
Mr Lee goes on to subdit that when the Governor
it did not then, ' exercised his power to delegate in 1974, and does not now,' matter in the slightest that Article XIV
Mr. Lee made four points was not referred to expressly. which I extract from part of his written argument;
11 (1) The section 9 statutory power is
aerived from Article XIV like flesh grafted onto the skeleton.
(2) The grafting is done pursuant to the powers to legislate under Article VII.
(3)
When" exercising the power to delegate, it was natural to refer to the flesh rather than to the bare bones.
(4) The Crown's case is that pefore the amendment in 1974, section rescrictea
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