TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 24

15-MAY-1991 16:06

DIRECTOR OF ADM.

853 877 0802

P.13

appointor of magistrates was to we the Governor and also

tnat the Chief Justice was to we an adviser of the Governor and not the appointor. The statutory requirement that the advice be directed to the Governor was not capable of delegation either as to the identity of the adviser (the Commission which included the Chief Justice as Chairman) or

as to the identity of the recipient of the advice, the Governor. It had also been pointed cut that the Governor retaine the power to make judicial appointments contrary to the acvice CI the Commission or without reference to at:

C1 the ordinance provided that nothing enacted therein "small derogate from any provision of the Letters retent sting in the Bovernor power of appointing judicial officers".

S

Counsel nac posed the question now coulu the Chief stice, 11 ne ..ere a delegate empowered to make

appointments of magistrates, reasonabi, or lawfully De tne recipient of advice From

P

Doy of which

was tne

Chalar As such a celegate he would be able to reject the

advice

the Cominission

anc appoint

Judicial officer

whose oppointment he alone had supported in the Commission. re would also have the Governor's powers to make

appointments

ithout any consultation ith the Commission.

It du also been! sub atteu nat the "Se fucto

officer coctrine" coulc not De prayed AT =10 In this Case for

runder of reasons including the proposition that the Joctrine could not apply to a case Such as the present if the authority of the tribunai as successfully challenged by a part; to the proceedings during their course; any ce facto colourable autnority could not survive a finding of invalidity. It was capable of pelny prayeu in ald only in respect of challenges to the validity of proceedings which nad been concludeʊ anc the time for an appeal had expired.