REVIEW
7
The Letters Patent have reserved residual power to the United Kingdom Parliament to legislate for Hong Kong; and the power, if it were ever to prove necessary, to disallow legislation enacted in Hong Kong. By these means, in strict constitutional theory, the Government of Hong Kong is made subject to the will of the British Parliament; and Hong Kong's administrators and legislators are appointed by and subject to dismissal by the British Government.
But how different is the practice from the strict theory! From the earliest days the Governor chose and recommended his own advisers in the Executive Council, who were subsequently confirmed in office by the English Monarch of the day. It is more than half a century since the power has been exercised of disallowing legislation passed by the Legislative Council in Hong Kong. Since at least 1945 it has been rare indeed for British legislation to be applied directly to Hong Kong, so that with a few exceptions, all the legislation governing Hong Kong has risen out of the Legislative Council, not the British Parliament.
The Governor of Hong Kong
The Governor, the Queen's appointee and representative, is the very pinnacle of the Government of Hong Kong. His position is high, his powers wide, his responsibilities for the welfare of the nearly 5 million people in the territory are awesome and grave. In Hong Kong, as in all constitutions framed on the British model, Montesquieu's classic vision as adopted and propounded by Dicey of the separation of the powers of the Executive, Legislature and Judiciary is found. But in the office of Governor the edges of that separation are blurred; it is only over the Judiciary, once appointed, that he has no power whatsoever.
He is head of the Executive; the ultimate power of direction over the administration rests in his hands. The Executive Council, the policy-deciding organ of the Government, performing the function of a Cabinet, over which he presides, enunciates all its decisions as 'The Council Advised and the Governor Ordered that . . .' He presides too over the Legislative Council and, as Article X of the Letters Patent provides, may ‘according to his discretion' give or refuse his assent to Bills passed in that unicameral assembly. He is titular Commander-in-Chief of Her Majesty's Forces in Hong Kong. The Commissioner of Police under the Police Force Ordinance is subject to his directions. He is personally given under the Letters Patent the power to deal with 'any lands that may lawfully be granted or disposed of by Us'; he is empowered to appoint judges and magistrates; the prerogative of pardon or remission of sentence rests in his hands; he is given both an original and a casting vote in Legislative Council; the power to commute the death sentence is his alone, and he must, after 'receiving the advice of the Executive Council', extend or refuse the prerogative of mercy 'according to his own deliberate judgment'.
But his powers, though so wide, are not unrestrained, for he too is subject to the Rule of Law. As Lord Denning observed in the English Court of Appeal in a case concerning the prerogative powers of the Attorney General of England and Wales:
'To every subject in this land, no matter how powerful, I would use Thomas Fuller's words over 300 years ago: "Be you never so high, the law is above you".
So, if the Civil Service on his behalf, or even the Governor himself, exceeds his legal powers he may be challenged in the courts, which have the power to restrain him. Apart from this ultimate sanction the checks and balances of the Hong Kong Constitution also limit and bind the Governor's powers. Article X of the Royal Instructions expressly orders that, save in urgent emergency and the like, ‘in the execution of the powers and authorities