TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 117

CONFIDENTIAL

WAB 012/2

RE L

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE F C O

TELNO 994

OF 04094OZ APRIL 91

INFO PRIORITY UKREP JLG HONG KONG

24

Q

26

040340

MDHIAN 0231

APR 1991

TOP COPY Q DIST?

YOUR TELNOS 571 AND 588 AND OUR TELNO 876:

PATENT AND ROYAL INSTRUCTIONS

AMENDMENT TO LETTERS

AS INDICATED IN PARA 9 OF OUR TUR, WE HAVE PUT THE PROPOSED AMENDMENTS TO THE LETTER PATENT (LP) AND ROYAL INSTRUCTIONS (RI) TO EXCO ON 26 MARCH ON THE UNDERSTANDING THAT DETAILED DRAFTING OF THE PROVISIONS CONCERNING THE POWER TO APPOINT PUBLIC OFFICERS WOULD HAVE TO BE FURTHER DISCUSSED WITH YOU. ON THAT BASIS, EXCO ENDORSED ALL THE PROPOSED AMENDMENTS.

2. WE NOTE THE VIEWS IN YOUR FIRST TUR THAT THERE IS NO NEED TO SET OUT IN THE LP THE RELATIONSHIP BETWEEN ARTICLE VII AND

ARTICLE XIV OR THE INDEPENDENT POWER OF APPOINTMENT WHICH MAY BE CONFERRED BY ANY LAW MADE UNDER ARTICLE VII. BY THE SAME TOKEN, YOU SAW NO NEED TO VALIDATE PAST APPOINTMENTS THAT WERE MADE UNDER AN ORDINANCE (WITH OR WITHOUT THE APPLICATION OF SECTION 63 OF THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE).

3.

WHILST WE SUBSCRIBE TO THAT VIEW, THE FOLLOWING CONSIDERATIONS PROMPTED US TO PROPOSE THE AMENDMENTS WHICH WERE THE SUBJECT OF PARAS 2 AND 4 OF YOUR FIRST TUR. FIRSTLY, A CASE CAN BE MADE CAND HAS BEEN MADE IN THE ONGOING JUDICIAL REVIEW) THAT A LAW MADE UNDER LP ARTICLE VII SHOULD BE SUBJECT IN SOME WAY TO ARTICLE XIV WHEN IT COMES TO MAKING PROVISIONS FOR

APPOINTMENTS TO THE PUBLIC SERVICE. WITHOUT AGREEING WITH THIS POINT OF VIEW, WE HAVE TO RECOGNISE NEVERTHELESS THAT THERE IS ROOM FOR DOUBT ON THIS POINT. IT WOULD BE DESIRABLE TO PUT THIS MATTER BEYOND SUCH DOUBT. SECONDLY, AT A PRACTICAL LEVEL, WE WOULD WANT TO SAFEGUARD THE APPOINTMENTS AND ACTIONS OF

MAGISTRATES CAND OTHER PUBLIC OFFICERS APPOINTED UNDER ANY LAW WHOSE APPOINTMENTS MAY BE SIMILARLY QUESTIONED) IN THE EVENT OF AN ADVERSE RULING IN THE PRESENT JUDICIAL REVIEW OR, FOR THAT MATTER, IN ANY FUTURE LEGAL CHALLENGE.

THE WAY FORWARD

PAGE 1 CONFIDENTIAL