TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 195

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040240 MDHIAN 0366

(B)

(C)

5.

THE POWER OF APPOINTMENT ON THE GOVERNOR HE IS ABLE TO DELEGATE THE RESPONSIBILITY TO ANOTHER PERSON BY

VIRTUE OF SECTION 63(1) OF CAP. 1.

BUT THE VAST MAJORITY OF POSITIONS IN THE PUBLIC

SERVICE ARE NOT SPECIFICALLY PROVIDED FOR IN LEGISLATION.

IN OUR VIEW THE MAJORITY OF APPOINTMENTS IN THIS CATEGORY DERIVE THEIR LEGITIMACY FROM THE LETTERS PATENT IN

COMBINATION WITH THE COLONIAL REGULATIONS.

THERE ARE DOUBTFUL CASES, E.G. THE APPOINTMENT OF EX- OFFICIO JP'S, WHICH REMAIN AND WHOSE LEGITIMACY HAS COME INTO QUESTION. REGISTRARS OF THE SUPREME COURT ARE ANOTHER EXAMPLE: THE EXISTENCE OF THESE PARTICULAR POSITIONS IS RECOGNISED BY STATUTE. THE LEGISLATION IS

HOWEVER SILENT AS TO WHO SHALL HAVE THE POWER TO APPOINT TO FILL THEM. WE HAVE TO RELY ON LP XIV IN SUCH CIRCUMSTANCES BUT IN THE LIGHT OF THE LEGAL ADVICE AT PARA. 2 ABOVE, IT DOES NOT SEEM PERMISSIBLE FOR THE GOVERNOR TO DELEGATE HIS POWER OF APPOINTMENT TO ANOTHER PERSON. REGISTRARS OF THE SUPREME COURT HAVE ALL ALONG BEEN APPOINTED BY

THE CHIEF JUSTICE.

AS REGARDS (C) ABOVE, ARTICLE XIV OF THE LP, READ IN THE EXPLANATORY AND AMPLIFICATORY LIGHT OF THE COLONIAL REGULATIONS (16 AND 17) MUST HAVE IMPLIED SOME POWER OF DELEGATION BY THE

GOVERNOR. PRACTICALITY ALSO POINTS TO THE SAME CONCLUSION SINCE IT COULD NEVER HAVE BEEN CONTEMPLATED THAT THE GOVERNOR SHOULD HAVE TO MAKE THE APPOINTMENT OF EVERY PUBLIC OFFICER PERSONALLY, NO MATTER HOW HUMBLE THAT OFFICER'S POSITION. HOWEVER, THE SPECIFIC PROVISION OF A POWER TO DELEGATE CONTAINED IN ARTICLE

XIII MITIGATES AGAINST AN IMPLIED POWER TO DELEGATE IN RESPECT OF

OTHER POWERS CONTAIN IN THE LP.

6.

TO PUT THE MATTER BEYOND DOUBT, IT SEEMS TO US (ADVISABLE) TO AMEND LP XIV ALONG THE LINES OF LP XIII(2), UNDER WHICH THE POWERS (AS REGARDS DISPOSAL OF LAND) CONFERRED UPON THE GOVERNOR MAY BE EXERCISED ON HIS BEHALF BY ANY PERSON AUTHORISED BY HIM. HOWEVER, WE ARE NOT IN FAVOUR OF A GENERAL ENABLING CLAUSE. THERE ARE PUBLIC OFFICERS WHOSE IMPORTANCE IS SO OBVIOUSLY GREAT THAT IT IS PROPER TO APPLY THE MAXIM QUOTE DELEGATUS NON POTEST DELEGARE UNQUOTE AND REQUIRE A PERSONAL EXERCISE OF THE GOVERNOR'S DISCRETION IN MAKING THE APPOINTMENT. THUS THE AMENDMENT WE ARE CONTEMPLATING WILL BE A PROVISION ALONG THE

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