TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 590

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Section 3(c) only empowers the Governor in Council to direct

which matters are outside the terms of reference.

It is the considered

view of the author (but the point is moot) that the Governor in Council

can either under subsection (3) or under the opening words of Section 3 :

indicate exactly what it is that the Governor in Council wants the

Commission to enquire into and report upon and indicate that all other

matters are outside the terms of reference. There may be other reasons

why he should not do so but as a matter of law it would appear (the

author's reservations arise from the unfortunate drafting of the legislation)

that there is no reason in law why he should not adopt this course. The

possibility that either the Commission or one of the Counsel engaged in

the Inquiry might challenge the legality of such directions in Court should

not be ignored.

3. Clarification of the Terms of Reference :

The following is a suggested draft if the procedure discussed

in the foregoing paragraph were to be followed :

"The following is a clarification of the terms of reference

of this Commission of Inquiry for the purposes of Section 3 of the Commissions of Inquiry Ordinance and should be considered both a specification for the purposes of the opening words of that section and a direction for the

purposes of subsection (c) of that section

is applicable."

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where each

The Governor in Council specifies and directs that the terms

of reference of this Commission of Inquiry are as follows :

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/ (a)

are there ....