TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 6

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CALL FROM DESMOND KEANE QC: FURTHER OUTSTANDING PROBLEMS

WITH THE LETTERS PATENT

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1. Desmond Keane phoned me today to thank me for sending him a copy of the Letters Patent on Article 14 but also to voice

his worries on Deputy High Court and District Court Judges,

which he had already voiced to Ms Major as she had set out

in her minute to you of 20 May. This time he went into slightly more detail.

2. He felt that the amendment to Article 14 did nothing to

resolve the difficulties that he sees with the appointment

of Deputy High Court and District Court Judges by the Chief

Justice under local legislation. In fact if anything he

thought it made the position worse. In his view the

appointment of judges is reserved to the Governor under the

Letters Patent and he does not believe that a colonial

legislature has the power to legislate in terms which would

put the prerogative aside. He questions the status of deputy judges. Quoting from a case in Natal (South Africa)

at the turn of the century (I think he called it the Ex Party Mares case) he said that this had found that dpeuty judges were the same as judges.

3. In summary, his point was that, for High Court Judges, was section 10 of CAP4, which gives the Chief Justice power to appoint judges, repugnant to Article 14 of the Letters Patent?

4. He also made some point regarding Article 16, which I could not quite follow. I think he may have been arguing

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