15-MAY-1991
16:43
DIRECTOR OF ADM.
852 877 0802
P.59
57
stipulated professional qualification as a juuye or district
quaye respectively. The Mayıstrates Ordinance contains no provision for the professional qualification of a mayistrate, but section 5 regulates the manner of his and must be appointment, which has to be "by warrant" notified in the Gazette.
Section 5 of the magistrates ordinance is expressed are section (1) of the Supreme Court
(as, wutatis mutanois,
Ordinance and section 4(2)
to confer on the Governor
of the District Court Ordinance)
power to appoint a magistrate.
In one sense It may be salu that he cannot effectively pe
power which has already been
given, y Ordinance, a conferred upon him by article XIV, Dut, in my opinion, on final ana. $15 (and adopting the terminology of Loru Pearce
in his
dictum in
Governor
في
the purman Cal case citeo above)
the
leyislature of Hong Kong nas lawfully conferred upon the
statutory power which 15 concurrent witn and
nim under confirmatory ci the prerogative power conferred on Article AIV, but subject to the regulating provisions contained ΣΩ section 5 of the Magistrates Ordinance which
we compiled
valid appointment 15
Cust
with if
D
to
be made.
In the absence of any express reservation of the unrestricted prerogative power it is thus the Ordinance
which rules.
Therefore, it
it see.ns to me that when the Governor
of the purported to celeyate his powers under section magistrates Ordinance to the Chief Justice, ne delegated his effective statutory power to appoint a magistrate, because the appointment could only be made in compliance with section 5 which was lawfully enacted and did therefore confer on the Governor a power to appoint which is concurrent with the Article XIV power. The latter power is for the time peiny lawfully displaced by the section 5 power, although I do not doubt that if the Governor were to purport to exercise it, and to do so in a manner that in
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