TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 47

טטט

GUVERNMENT HUUSE

HUNG KUNG

1

4-29

8:53

CONFIDENTIAL

26.

Ordinance, Cap.227, is not delegable or sub-delegable.

(7) Further or

PHGE 26

alternatively, the Governor is obliged by the

and as

with

Lerms OL the LetterS ratent, unger Article

clarified by the amendment to Article XIV on 5th February

1971, to exercise his Article XIV power in accordance the local law of Hong Kong insofar as the same is not

inconsistent with the Letters Patent and without affecting

the delegated nature of the power. This means that :-

(a)

The Governor, when appointing magistrates, must comply

with the terms of section 5 of the Magistrates

uruinance insorar as the same is not inconsistent With

the Letters Patent. Such terms include, inter alia,

the obligation that the Governor must appoint

magistrates in accordance with "his opinion" and not

The words "in his

with

someone

else's opinion.

opinion" do not refer only to the number of magistrates

as distinguisпea from the individual appointments.

(b) After the coming into force of the Judicial Service

Commission urainance, Cap.92, in repruary 1976, the

Governor, when appointing magistrates, was obliged

comply with the terms of such ordinance insofar as the

to

same is not inconsistent with the Letters Patent and

not to act inconsistent therewith. These include the

implied obligation to receive and consider the

recommendation of the Judicial

although

Service Commission,

ne

was

ποτ pouna

το

act

on

such

recommendation.

Further, it would be inconsistent with

*CONFIDENTIAL

H

[