TNAG-2219-FCO40-3187-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 8

MA3 012/2

JUN 1991

Ss

Citation,

construction and

commencement.

Amendment of

Article XIV of principal Letters Patent.

Reservations.

HONG KONG

LETTERS PATENT passed under the Great Seal of the Realm amending the Hong Kong Letters Patent 1917 to 1990.

Dated: 20th May 1991.

ELIZABETH THE SECOND, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

TO ALL TO WHOM THESE PRESENTS SHall come, GREETING!

Know Ye that We have declared and by these Presents do declare Our Will and Pleasure as follows-

1. (1) These Our Letters may be cited as the Hong Kong Letters Patent 1991 (No. 1) and shall be construed as one with the Hong Kong Letters Patent 1917 as amended (hereinafter called "the principal Letters Patent").

(2) The Hong Kong Letters Patent 1917 to 1990 and these Our Letters may be cited together as the Hong Kong Letters Patent 1917 to 1991 (No. 1).

(3) These Our Letters shall be published in the Hong Kong Government Gazette and shall come into operation upon the day immediately following the date of such publication.

2. (1) Article XIV of the principal Letters Patent is amended:-

(a) by renumbering the same as paragraph (1) of that Article; and

(b)

by adding the following new paragraph:-

"(2) The powers conferred on the Governor by this Article may, save in the case of the office of judge of the Supreme Court or judge of the District Court or the office of Chief Secretary, Attorney General or Financial Secretary and subject to such conditions and restrictions (if any) as the Governor may specify, be exercised on behalf of the Governor by any person authorised, whether by name or by reference to an office, to exercise those powers by the Governor. Any such authorisation, condition or restriction shall be notified in the Hong Kong Government Gazette.".

(2) No appointment made to the public service of Hong Kong before the coming into operation of the Hong Kong Letters Patent 1991 (No. 1) by a person to whom a power of appointment conferred under Article XIV of the Principal Letters Patent was purportedly delegated under that Article shall be called in question on the ground that the appointment was not made in accordance with Article XIV of the Principal Letters Patent.

3. We do hereby reserve to Ourself, Our Heirs and Successors full power and authority to amend or revoke these Presents.

In Witness whereof We have caused these Our Letters to be made Patent.

Witness Ourself at Westminster the twentieth day of May in the Fortieth year of Our Reign.

BY WARRANT UNDER THE HANDS OF THE COUNSELLORS OF STATE.

Legg

(1-1-25)

Printed in the United Kingdom for HMSO

Dd 8261155 591 523 3840 4695

Citation,

and

construction

commencement.

Amendment of Article VII of principal

Letters Patent.

Reservations.

HONG KONG

LETTERS PATENT passed under the Great Seal of the Realm amending the Hong Kong Letters Patent 1917 to 1990 and 1991 (No. 1).

Dated: 20th May 1991.

ELIZABETH THE SECOND, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING!

Know Ye that We have declared and by these Presents do declare Our Will and Pleasure as follows--

1.—(1) These Our Letters may be cited as the Hong Kong Letters Patent 1991 (No. 2) and shall be construed as one with the Hong Kong Letters Patent 1917 as amended (hereinafter called "the principal Letters Patent").

(2) The Hong Kong Letters Patent 1917 to 1990 and 1991 (No. 1) and these Our Letters may be cited together as the Hong Kong Letters Patent 1917 to 1991 (Nos. 1 and 2).

(3) These Our Letters shall be published in the Hong Kong Government Gazette and shall come into operation upon the day immediately following the date of such publication.

2. Article VII of the principal Letters Patent is amended by adding the following new paragraph:-

"(3) The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, as applied to Hong Kong, shall be implemented through the laws of Hong Kong. No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No. 2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong.".

3. We do hereby reserve to Ourself, Our Heirs and Successors full power and authority to amend or revoke these Presents.

In Witness whereof We have caused these Our Letters to be made Patent.

Witness Ourself at Westminster the twentieth day of May in the Fortieth year of Our Reign.

BY WARRANT UNDER THE HANDS OF THE COUNSELLORS OF STATE.

Legg

(1-1-25)

Printed in the United Kingdom for HMSO

DJ 8261154 5.91 523 3840 4695

Miss Brooks

Legal Advisers

RESTRICTED

Pa

RIDAKV

Si

Reference

CALL FROM DESMOND KEANE QC: CONCERN WITH HONG KONG'S LEGAL AND JUDICIAL SYSTEM

1. I mentioned that I had a telephone call this morning from Desmond Keane QC (2 Paper Buildings, Temple, EC4 tel 936 2611 fax 583 3423) a member of the Hong Kong Bar and the Leading Counsel in David Chiu's Civil Appeal 63/91. On the latter case, he warned that he would be petitioning for special leave to appeal through the Judicial Committee of the Privy Council. He said that the Chiu case raised the issues of whether the Letters Patent were detailed enough and whether LegCo could put Letters Patent powers into abeyance. But he stressed that the main purpose of his call was with more general matters of concern.

2.

He then explained 5 areas of concern:

a) there were no prescribed qualifications for magistrates and

therefore no confidence in them. Under the Letters Patent they could only be removed by the Governor for cause under Article 16 yet local legislation provided for removal without cause. Furthermore the appointment of a permanent magistrate without warrant was indefinite until retirement but contractual arrangements were for three years only: failure to renew a contract could therefore be seen as revoking of appointment. He warned that these conflicts would lead to

itigation (and hinted that individuals had said as much to him about their intentions). He said that we needed consistency between appointment and warrant. He could understand the need for a trial period say of three years but thereafter there should be straightforward tenure subject to

cause.

b) The position of Chief Magistrate (currently Richard Hawkes) had been abolished by statute in 1862. There should be local legislation to regularise this. Otherwise the position of Chief Magistrate, particularly the fact that he received extradition warrants and acted as a supervisor, could lead to litigation.

c) The position of principal magistrates was also not an office under local law.

d) Between a quarter and a third of judges sitting in the Supreme and District Court were Deputy Judges. The high proportion of Deputy Judges sitting in the Supreme Court gave rise to legal and constitutional problems. Furthermore, the

RESTRICTED

CODE 18-77