TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 60

15-MAY-1991 16:35

DIRECTOR OF ADM.

+7

852 277 0802

P.49

If, on the other hand, Article XIV is to be construed as conferring a delegable power on the Governor, then any provision, express or implied, in an Ordinance enacted by the Governor in Legislative Council pursuant to Article VII (and assented to wy the Governor under Article X) purporting to confer or regulate such a celegable power

and would would not De repugnant to the Letters Patent -herefore be intra vires Article VII, nor would the Governor be inhibited from assenting to such provision as being of clause XXVI of the Royal instructions.

Why

C ithin class

In

a

as inost

The Letters Fatent, which (supplemented by the royal Instructions and other prerogative crders) constitute

termed the "concrete" what Professor wesley Smith has constitution of rionų Kong, contain provisions which retain a

under ceveloped skeletal simplicity more appropriate to an under 19th century dritish colony.

the course of time,

of the former British colonies developea tney acquired far more elaborate constitutional instruments, and, ultimately wetalles written constitutions dealing expressly with ratters such as the delegation of executive powers. cevelopment has been compendiously considered by Sir Kenneth Kobert-wray in has woĽK on Commonwealth and Colonial For historical and political reasons this constitutional development has not occurred in mong Kong where the provisions of the Letters Patent remain very basic (notwithstanding a number of amendments since they were first passed in 1917) and now nave to be applied to circumstances which may well not have been envisaged in

1917.

This

Law.

In the light of the dicta in the autnorities cited

oy my lord Fuad illustrating the approach adopted by the Privy Council when construing much more advanced constitutions of territories within its jurisdiction, court should, in my opinion, construe the Hong Kong Letters Patent in a purposive manner as an organic basic constitutional instrument which was intended to be fleshed

this

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