TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 194

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE F CO

TELNO 2826

OF 210846Z SEPTEMBER 90

CONFIDENTIAL

90

040240 MDHIAN 0366

HKB 012 16

COUNT 1990

TO COPY Q DIST?

DELEGATION OF AUTHORITY UNDER ARTICLE XIV OF THE LETTERS PATENT

(LP)

No

ARTICLE XIV OF THE LP EMPLOWERS THE GOVERNOR TO APPOINT JUDGES, JUSTICES OF THE PEACE (JP'S) AND OTHER PUBLIC OFFICERS. HITHERTO, OUR UNDERSTANDING HAS BEEN THAT THE GOVERNOR MAY DELEGATE HIS POWER OF APPOINTMENT. A CASE IN POINT IS THE APPOINTMENT OF DISTRICT OFFICERS AS EX-OFFICIO JP'S WHICH HAS BEEN MADE BY THE CHIEF SECRETARY UNDER DELEGATED AUTHORITY SINCE

1975. LEGAL ADVICE AT THAT TIME WAS THAT SUCH DELEGATION WAS IN ORDER UNDER SECTION 79 OF THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE, CAP.1.

2. A REVIEW OF THE ABOVE ARRANGEMENTS CONCLUDES THAT THE DELEGATION MADE IN 1975 IS INEFFECTIVE. OUR REASONING IS THAT ALTHOUGH THE LP IS AN IMPERIAL ENACTMENT TO WHICH S 79 OF CAP. 1 APPLIES, THAT SECTION ONLY EXTENDS TO IMPERIAL ENACTMENTS THE PROVISION OF CAP. 1 FOR THE PURPOSE OF INTERPRETATION. ALTHOUGH S. 63 OF CAP. 1 AUTHORISES THE DELEGATION BY THE GOVERNOR OF CERTAIN POWERS, IT IS NOT AN INTERPRETATION PROVISION AND CANNOT BE CALLED IN AID IN RELATION TO POWERS CONFERRED BY IMPERIAL ENACTMENTS. THUS THE POWERS OF THE GOVERNOR UNDER LP XIV CANNOT

a ex dr & in lepojence to

Peter A

BE SO DELEGATED BY HIM. Any won the sfer o

3.

m AiG3 M 33

THIS HAS CREATED WIDER PROBLEMS FOR US. THE BASIC CONSTITUTIVE POWER FOR THE PUBLIC SERVICE IS CONTAINED IN ARTICLE XIV OF THE LP. BUT THE LP ONLY CREATE THE ESSENTIAL SKELETAL FRAMEWORK FOR THE GOVERNMENT OF THE TERRITORY. THEY DO NOT, AND DO NOT PURPORT TO, PROVIDE FOR EVERYTHING. THE DETAILS MUST BE PROVIDED ELSEWHERE, BUT OF COURSE ONLY BY MEANS WHICH ARE

CONSTITUTIONALLY LEGITIMATE.

4.

THUS THREE SCENARIOS HAVE ARISE:

(A) WHERE THE APPOINTMENT IN QUESTION IS PROVIDED FOR

SPECIFICALLY IN AN ORDINANCE, THE MANNER OF APPOINTMENT THERE PRESCRIBED MUST BE FOLLOWED. IF THE STATUTE CONFERS

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CONFIDENTIAL