TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 141

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FM HONG KONG

TO DESKBY 21140OZ FCO

TELNO 876

OF 21113OZ MARCH 91

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Hus 01

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M. Some (19)

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007607

MDHIAN 8979

TOP COPY Q DIST?

25 MAR 1999

INFO ROUTINE UKREP JLG HONG KONG

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YOUR TELNO 528 : AMENDMENTS TO LETTERS PATENT AND ROYAL INSTRUCTIONS

1. THANK YOU FOR TUR. IT APPEARS THAT THE ONLY OUTSTANDING POINT OF ANY SUBSTANCE IS THE AMENDMENTS TO ARTICLE XIV OF THE LETTERS PATENT.

2. AT PRESENT, BASICALLY FIVE METHODS OF APPOINTMENT OF PUBLIC OFFICERS CAN BE IDENTIFIED:

(A) BY THE GOVERNOR UNDER ARTICLE XIV OF THE LP:

(B) BY THE GOVERNOR AS PROVIDED FOR IN AN ORDINANCE:

(C) BY A PUBLIC OFFICER UNDER A PURPORTED DELEGATION BY THE GOVERNOR UNDER ARTICLE XIV OF THE LP.

(D) BY A PUBLIC OFFICER AS PROVIDED FOR IN AN ORDINANCE:

(E) WHERE THE GOVERNOR HAS THE ORIGINAL AUTHORITY OF APPOINTMENT UNDER AN ORDINANCE (SEE (B) ABOVE), BY A PUBLIC OFFICER UNDER DELEGATED AUTHORITY UNDER SECTION 63 OF CAP. 1.

3. WE HAVE NO DIFFICULT WITH EITHER METHODS (A) OR (B), ALTHOUGH THE VALIDITY OF METHOD (B) CAN PROBABLY BE JUSTIFIED ON GROUNDS OF IT BEING DERIVED FROM ARTICLE XIV OR ARTICLE VII. METHOD (C) IS OBVIOUSLY IN DOUBT AND THE NEED TO PUT THE MATTER BEYOND DOUBT

IS RECOGNISED. THE FINAL SENTENCE OF PARA 4 OF YOUR TELNO 199 OF 29 JANUARY 1991 REFERS. THE POINT WE HAVE BEEN MAKING IS THAT ARTICLE 3(2) OF THE AMENDING LP HAS NOT ACTUALLY COVERED THIS BY PROVIDING A VALIDATION PROVISION FOR APPOINTMENTS BY PERSONS WHO WERE PURPORTEDLY DELEGATED TO EXERCISE THE GOVERNOR'S POWERS UNDER ARTICLE XIV.

4. AS REGARDS METHODS (D) AND (E), YOUR VIEW IS THAT THEY WOULD BE COVERED SEPARATELY AND INDEPENDENTLY BY ARTICLE VII. PARA 4 OF

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