TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 4

have been made to the High of habeas corpus and for judicial review in the form of an injunction to restrain a magistrate from continuing to exercise any jurisdiction. It was argued that the magistrate who earlier refused to grant an application to stay the criminal proceedings instituted against the applicants was not legally appointed and that his order was made without jurisdiction. The application for leave for a writ of habeas corpus was refused but the case of the judicial review is being heard by the Court.

10

Section 5 of the Magistrates Ordinance empowers the Governor to appoint by warrant magistrates in Hong Kong. Since the beginning of 1984 this power has been delegated to the Chief Justice under section 63 of the Interpretation and General Clauses Ordinance. The arguments of the applicants are based, inter alia, on the premise that section 5 of the Magistrates Ordinance does not give the Governor a power he does not otherwise have, but rather reiterates the power given in Article XIV. In this connection section 63 does not apply to powers conferred by the Letters Patent. The Chief Justice is thus not acting as a delegate of the Governor but as a sub-delegate of the

It might also be argued that appointment to a judicial office was thought so important that it was intended that it should be exercised by the Governor personally.

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Crown.

In order to deal with the consequences of an adverse judgement from the Court, and to put beyond doubt the whole issue of the delegation of the Governor's power of appointment, Letter Patent need amendment

(a)

to

(b)

(c)

(d)

make express provision to enable the Governor to delegate, except for the most senior public officers and Supreme Court and District Court powers of appointment under

Judges, his

Article XIV;

to provide for a validation provision in respect of appointments made under purported delegation

XIV as well as

of

Article

appointments;

statutory

powers of

to bring out the independent appointment which may be created through an Ordinance under Article VII; and

to set out the relationship between Article VII and Article XIV.