TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 337

4

-

Hong Kong's "Constitution"

The first constitution was set out in 2 documents made by Order in

Council. They were the Hong Kong Charter of 1843, with the accompanying Instructions to Sir Henry Pottinger. The Governor's Instructions subjected

the Governor to detailed guidance regarding the working of the constitutional

arrangements set out in the Charter. In effect, these formal arrangements were brought up to date in the Letters Patent and Royal Instructions to the Governor of Hong Kong of 1917 (as amended). Before considering the terms of these documents, it might be helpful to briefly discuss the "constitutional

formalities" and the rights and powers of the Governor. Letters Patent are

passed under the Great Seal. This is one of the usual methods of communicating

the Royal Prerogative. As such, Letters Patent have the force of law, They

are often, as in the case of Hong Kong, supplemented by Royal Instructions. Sir Kenneth Roberts-Wray (p. 143) describes Letters Patent as :

"The instrument by which offices, particularly those of Governor-

General, and Governor, are created for countries within Her Majesty's

dominions, and powers relating to such matters as the prerogative of

mercy, the disposal of land the appointment and dismissal of officers,

are delegated to the holders of such offices". (my emphasis).

Although Letters Patent are still used for the appointment of

Governors, in most other matters Orders in Council are considered the more

"modern" way of communicating the Royal Prerogative. The Governor therefore

derives his authority and power wholly and solely from the Letters Patent and

Royal Instructions. The Royal Instructions relating to Hong Kong are considered

the most extensive of their kind in scope and effect. It is important to

appreciate that the Governor's powers are thus restricted. As Roberts-ray (pp. 337-338) puts it:

"A Governor of a Colony has not, by virtue of his appointment,

the whole sovereignty of the territory delegated to him. He is

not a Viceroy, and an act done by him is not necessarily valid and

effectual merely because it would be so if done by the Sovereign.

His authority is limited to that conferred upon him by the Crown

or by Acts of Parliament or other laws".

"Governors in the exercise of their legal powers, are required to

observe Her Majesty's instructions. They may be given by Royal Instructions under the Royal Sign Manual and Signet or conveyed less formally through a Secretary of State by despatch or telegram. (emphasis) And beyond that a matter of constitutional law - it is

well understood that the Secretary of State is entitled to intervene in any matter of administration within a Governor's authority, whether

legal powers are involved or not". (at p. 339)