CONFIDENTIAL
1676
MDHIAN 8.37
་
GOVERNOR A POWER HE DOES NOT OTHERWISE HAVE, BUT RATHER REITERATES THE POWER GIVEN IN ARTICLE XIV. IN THIS CONNECTION SECTION 63 DOES NOT APPLY TO POWERS CONFERRED BY THE LP:
B. EVEN IF SECTION 63 DOES APPLY, IT CANNOT APPLY TO A POWER THAT IS ALREADY DELEGATED. IT IS A FUNDAMENTAL PRESUMPTION OF
CONSTITUTIONAL LAW THAT DELEGATED POWER CANNOT BE SUB-DELEGATED. IN THIS CASE, THE CJ IS NOT ACTING AS A DELEGATE OF THE GOVERNOR BUT AS A SUB-DELEGATE OF THE CROWN:
C. THE IMPLIED POWER TO DELEGATE DOES NOT APPLY TO CERTAIN MATTERS THAT ARE REGARDED AS SO IMPORTANT THAT THERE MUST BE EXPLICIT POWERS TO DELEGATE BEFORE THEY MAY BE DELEGATED. IT MAY BE ARGUED THAT THE APPOINTMENT TO A JUDICIAL OFFICE WAS THOUGHT SO IMPORTANT THAT IT WAS INTENDED THAT IT SHOULD BE EXERCISED BY
THE GOVERNOR PERSONALLY.
5. THIS CASE UNDERLIES THE NEED TO GO TO THE PRIVY COUNCIL AS
SOON AS POSSIBLE SO THAT IN THE EVENT OF AN ADVERSE DETERMINATION, THE AMENDING LP MAY BE BROUGHT INTO OPERATION QUICKLY IF NOT IMMEDIATELY.
6. ON THE SUBSTANCE OF THE AMENDMENT, PARA 5 OF FIRST TUR HAS CLARIFIED BY REFERENCE TO LP VII THE POSITION WITH REGARD TO STATUTORY APPOINTMENTS, WHETHER BY ANY PERSON UNDER A SPECIFIC POWER CONFERRED BY AN ORDINANCE OR BY GENERAL DELEGATED AUTHORITY
SUCH AS THE ENABLING STATUTORY POWER UNDER SECTION 67 OF CAP 1. THESE METHODS OF APPOINTMENT ARE DISTINCT FROM, AND THEREFORE NOT SUBJECT TO ARTICLE XIV. NOTHING NEEDS TO BE DONE BY WAY OF
AMENDMENT TO ARTICLE XIV NOR VALIDATION, IN RELATION TO SUCH APPOINTMENTS. CONSISTENT WITH YOUR ADVICE, WE HAVE PROPOSED IN HK TELNO 434 THAT DRAFT ARTICLE 3(2) OF THE AMENDING LP (SECOND DRAFT OF 28 JANUARY) SHOULD SEEK TO VALIDATE PURPORTED DELEGATIONS UNDER THE LETTERS PATENT, INSTEAD OF APPOINTMENTS MADE UNDER SECTION 63(1) OF THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE (TO PREVENT CHALLENGE ON THE GROUNDS THAT THE APPOINTMENT WAS NOT MADE IN ACCORDANCE WITH ARTICLE XIV OF THE PRINCIPAL LP). IN VIEW OF THE PENDING JUDICIAL REVIEW (PARA 3 ABOVE), WE ARE INCLINED TO KEEP THE VALIDATION PROVISION IN RESPECT OF SECTION 63 APPOINTMENTS AS DRAFTED, AND ALSO TO ADD AS WE HAVE ALREADY PROPOSED A VALIDATION PROVISION IN RESPECT OF
PURPORTED DELEGATION UNDER THE LP.
VALIDITY OF LEGCO PROCEEDINGS
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