TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 62

13-A11ESI

DIRECTOR OF HUM.

49

"Implied powers may we wiven to an office as incident, eitner because they are necessary to its due execution, or because they are such as nave been usually exercised by those who have borne it.

USUE

P.51

In usurave v. Pulido the Privy Council described

the following terms: governor's authority at p.111 in

"His authority

15

Ceriveu from his

Commission, ana limited to the powers therepy Let expressly or impliedly entrusted to nail. it be granted that, for acts of power done by Governor under and within the limits of nis in doing Commission, he is protected, because them ne is the servant of the Crown, and is

the like exercising its sovereign authority; Grotection cannot De extended to acts which are wholly beyond the authority coniiced to him."

a

Thus the Governor's power to appoint unuer Article XIV 15

as a viceroy "sovereign authority" which he exercises, not

as "the servant of the Crown.". He has no authority to enlarge this power wy amendment of the Letters Fatent, Croinance enacted under Article VII, or otherwise.

There

being

no evidence of a previous practice of delegation the only possible basis for the existence of authority to delegate the exercise of the power must be implication arising from necessity for the due exercise of the Governor's office. Does the implication arise in the

present circumstances?

I nave found this a clificult question,

d

particularly in view of the circumstances resulting in the

amenument of Article XIII (to introduce an express power to delegate the power to grant land, which is rightly relied upon in support of the contention that the tenour of the Letters Patent 15 to confer personal non-delegable powers upon the Governor which can only be made celegable by amendment. However, construing the Letters Patent broadly anu purposively as a constitutional and forward looking