TNAG-1597-FCO40-2182-Hong-Kong-1987-Review-of-Representative-Government-1987 — Page 78

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MIPT: POLITICAL REVIEW: COLONIAL LAWS VALIDITY ACT

1.

ICAL

FOLLOWING IS ATTORNEY GENERAL'S NOTE:

THE RELEVANT PROVISION OF THE ACT IS SECTION 5 WHICH APPLIES

TO ''REPRESENTATIVE LEGISLATURES'' I.E. THOSE BRITISH COLONIAL

LEGISLATURES COMPRISING A LEGISLATIVE BODY WITH HALF ITS MEMBERS

ELECTED BY THE INHABITANTS. THE SECTION PUTS IT BEYOND DOUBT THAT

ALL SUCH ''REPRESENTATIVE LEGISLATURES'' HAVE THE POWER TO MAKE LAWS

WITH RESPECT TO THEIR OWN CONSTITUTION, POWERS AND PROCEDURE. BY

THIS MEANS A REPRESENTATIVE LEGISLATURE CAN IN THEORY CHANGE THE

COMPOSITION OF ITS MEMBERSHIP AND CHANGE ITS PROCEDURES, BUT THERE

ARE THREE MAJOR LIMITATIONS.

FIRSTLY, THE ACT DOES NOT AFFECT THE POWER OF THE GOVERNOR

TO REFUSE HIS ASSENT TO ANY LAW ENACTED BY THE LEGISLATURE.

SECONDLY, THE ACT DOES NOT AFFECT THE RIGHT RESERVED TO THE

QUEEN ON THE ADVICE OF THE BRITISH GOVERNMENT TO DISALLOW LAWS

ENACTED BY THE LEGISLATURE.

THIRDLY, THE SECTION ITSELF PROVIDES THAT ANY LAW TO ALTER THE CONSTITUTION, POWERS AND PROCEDURES OF THE LEGISLATURE MUST BE ENACTED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN THE LETTERS

PATENT AND THE ROYAL INSTRUCTIONS.

OF COURSE, SECTION 5 OF THE COLONIAL LAWS VALIDITY ACT DOES

NOT APPLY TO HONG KONG'S LEGISLATIVE COUNCIL AS LESS THAN HALF

ITS MEMBERS ARE ELECTED. EVEN IF THAT SITUATION WERE TO CHANGE THE

POWER OF THE BRITISH GOVERNMENT TO ENSURE THAT IT FULFILS ITS

OBLIGATIONS UNDER THE SINO-BRITISH JOINT DECLARATION WOULD NOT BE

AFFECTED.

AKERS-JONES

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