TNAG-2329-FCO40-3373-Hong-Kong-contacts-with-academics-and-writers-1991 — Page 117

5.23

THE NATURE OF EXECUTIVE DISCRETION UNDER LAW

Maintaining the "fabric of Hong Kong's government and all that that implies" was the promise of HMG in 1984. That includes, presumably, the ways in which the executive exercises governmental powers. Accordingly, within the context of all that is to be done to prepare for 1997, I believe that there is a need to examine the provisions of law governing the manner in which governmental decisions will be taken by the executive post 1997. In this regard, it could be important to examine the provisions of Hong Kong law which today permit the individual discretion of public servants to be supplanted by politically-motivated directions from above. Where there are such powers, the next question is whether in the exercise of those powers, their holder is accountable; and if not currently accountable, the question is whether changes compatible with the Basic Law and Joint Declaration are appropriate. My concern is that executive action should be susceptible to judicial challenge wherever possible. Thus, where action can be taken by the executive "under a vague, general grant of statutory power", the question to be asked is whether the exercise of such powers can militate against principles of good government and fairness. In technical terms, the question is as follows: -

"Is it proper, even where there is a thorough fusion of executive and legislative branches as in Hong Kong, for the government to avoid the passing of legislation (along with publicity and the involvement of Legco) in favour of law-making by civil

servants."

Or, to put it in more general terms: How can Hong Kong avoid being governed by "policy which is not embodied in legislation, which may never be debated in Legco, and which cannot be challenged in the

44 Courts"? Or, to put it another way still: how does one sustain the rule of law given the nature of the HKSAR system of government? before all these questions, a very basic concern needs to be made explicit.

But

5.24.

A particular instance of untramelled power concerns the manner in which SAR public officials will be subject to the Chief Executive's directions. Today, under section 51 of the Immigration Ordinance, Cap 115, for example: -

"The Governor may give such directions as he thinks fit

(either generally or in any particular case) with respect to the exercise or performance by any public officer, not being a judge, a district judge or a magistrate, of any powers, functions or duties under this Ordinance."

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