TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 69

15-MAY-1991

16:42

DIRECTOR OF ADM.

1952 877 0802

P.58

56

altered and curtailed (and in parts confirmed) the various aspects or the prerogative that the whole subject is obscure and difficult. It would appear that when Parliament gives a power concurrent with that of the prerogative but subject to certain imposed limits, such as an obligation to pay compensation, the prerogative cannot then act without observing those limits; and if the statutory power were repealed, the

prerogative power would apparently re-emerge as it existed before the statute (see the case of ve Keyser's Royal Hotel [19201 AC 508."

The Governor 15 not the Crown, cut the servant of

the Crown. However, in my opinion, the Governor is clearly

yiven authority by the Letters Patent to assent to an

ordinance

which curtails the article XIV prerogative Power

of the Crown conterred on nim under the Letters Patent.

Indeed this Иd S cominon ground wetween the parties to the

appeal. The power to appoint conferred by miticle XIV is

expresseu to relate to "such Judyes, Justices of the Peace

other public officers as may be lawfully appointeu.

unuer Article II the Governor is required to

otrice inter alia "according

and

an

exercise

ܪܐ,

=0

sucn laws

as are now ΟΙ snall hereafter be in force in the Colony."

The legislative powers conferred by Article VII are plenary

and not subject to any restrictions which inhibit the

regulation of the Governor's power to appoint under Article

XIV.

Accordingly it seems to me that when, for example,

nis

the Governor assented to the Supreme Court urdinance

(Cap. 4), the District Court Ordinance (Cap. 336) and the

magistrates urdinance, he lawfully assented to

Article XIV prerogative powers (derived from the Crown) being

regulated or curtailed to the extent that any of those

ordinances contained provisions naviny that effect e.y. the

provisions of section of the Supreme Court Ordinance and

section > of the District Court Ordinance which innipit the

Governor from appointing a person other than one having a