CONFIDENTIAL
A
122201
MDHIAN 8767
Х
(A) APPOINTMENTS MADE BY AN OFFICIAL TO WHOM THE GOVERNOR HAS DELEGATED (UNDER SECTION 63(1) OF THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE) HIS ORIGINAL POWER OF APPOINTMENT CONTAINED IN AN ORDINANCE: AND
(B) APPOINTMENTS MADE BY AN OFFICIAL UNDER AN EXPRESS PROVISION OF AN ORDINANCE. FOR EXAMPLE, UNDER SECTION 10(1) OF THE SUPREME COURT ORDINANCE, THE CHIEF JUSTICE (CJ) IS EMPOWERED TO APPOINT DEPUTY JUDGES OF THE SUPREME COURT. SIMILAR POWERS ARE AVAILABLE FOR THE CJ TO APPOINT DEPUTY DISTRICT JUDGES AND DEPUTY ADJUDICATORS OF THE SMALL CLAIMS TRIBUNAL.
5. NOTWITHSTANDING THE VIEW IN PARA 4 (A) OF OUR TELNO 2826, WE NOW FEEL THAT THE PROPOSED AMENDMENT TO ARTICLE XIV OF THE LP STILL FAILS TO OVERCOME THE POSSIBLE FUNDAMENTAL OBJECTION TO THE PRESENT ARRANGEMENTS WHEREBY STATUTORY POWERS OF APPOINTMENT CREATED THROUGH THE MEDIUM OF AN ORDINANCE MAY STILL BE SEEN AS CIRCUMVENTING THE RESTRICTION SET BY ARTICLE XIV OF THE LP. IN OTHER WORDS, WE BELIEVE THAT UNLESS A PROVISO COULD BE ADDED TO CLAUSE 3(1) (B) SO AS TO COVER DELEGATION WHICH MAY BE PROVIDED IN ANY LAW FROM TIME TO TOME IN FORCE IN HONG KONG, IT WOULD NOT BE PROPER TO PROVIDE FOR THE EXERCISE BY ANY OFFICIAL OF THE GOVERNOR'S DELEGATED POWER OF APPOINTMENT UNDER AN ORDINANCE. BUT OUR VIEW IS FAR FROM CONCLUSIVE AT THIS STAGE. IT WOULD BE MOST USEFUL TO HAVE YOUR VIEW ON THE MATTER.
6. WE FEEL THAT THE PROPOSED CLAUSE 3(2) SHOULD BE EXPANDED TO COVER APPOINTMENTS MADE BY AN OFFICIAL UNDER AN EXPRESS PROVISION OF AN ORDINANCE (PARA 4 (B) ABOVE) AND PURPORTED DELEGATION UNDER ARTICLE XIV OF THE LP, SUCH AS APPOINTMENTS OF JUSTICES OF THE PEACE, WHICH ARE NOT PROVIDED FOR SPECIFICALLY IN AN ORDINANCE.
LEGCO PROCEEDINGS AND QUORUM (PARA 4 OF TUR)
7. WE SUGGEST THE FOLLOWING SLIGHTLY REVISED TEXT FOR YOUR
CONSIDERATION :
XIX. VALIDITY OF ACTS OF THE COUNCIL. QUORUM.
(1) SUBJECT TO SUBCLAUSE (2), THE LEGISLATIVE COUNCIL SHALL NOT BE DISQUALIFIED FROM THE TRANSACTION OF BUSINESS ON ACCOUNT OF ANY VACANCY (INCLUDING ANY VACANCY NOT FILLED WHEN THE COUNCIL FIRST MEETS FOLLOWING AN ELECTION TO ELECT ALL THE ELECTED MEMBERS THEREOF) IN THE MEMBERSHIP OF THE COUNCIL, AND ANY PROCEEDINGS THEREIN SHALL NOT BE INVALIDATED
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