TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 39

3.

(b)

(C)

(d)

CONFIDENTIAL

18.

ordinary Government employees holding no such office). Accordingly

no need for appointment other than by the Governor arises.

If the term "other public officers" includes all Government employees,

appointment other than by the Governor is unnecessary in respect of

the appointment of Judges, Justices of the Peace, Magistrates and

other Judicial Officers.

If any such appointment is possible by any persons other than the

Governor, it can only be delegated to officials within the executive

branch of Government acting in the name and/or on behalf of the

Governor (in accordance with the restrictions, and limitations, established in R v Sec of State for the Home Department ex parte

Oladehinde (1990) 3 WLR 797 H L).

In particular, such official must be under the control and supervision

of the Governor. The Chief Justice cannot be such an official

delegate, given the principle of Judicial independence from the

Executive.

Inat any purportea suo-delegation of the power to appoint magistrates to

the Chief Justice is invalid by reason of the Judicial Services Commission Urd

Cap 92 as it is:

(a) ultra vires the express and implied requirements of the Ordinance.

+

CONFIDENTIAL