TNAG-2329-FCO40-3373-Hong-Kong-contacts-with-academics-and-writers-1991 — Page 118

"Any public officer shall, in the exercise or performance

of any powers, functions or duties under this Ordinance, comply with any directions given by the Governor under subsection (1)."

This may challenge basic principles in a very worrying way indeed. Miss Gladys Li, Q.C. has commented in the following manner on such powers: -

"A basic principle of administrative law requires that a person

empowered to make a decision or to exercise a discretion consider the merits of the individual case before him; he must not blindly adhere to a policy or directions from above. A rigid adherence to policy or to internal directions by such a person may be unlawful if as a result he fails in effect to make any decision or to exercise any discretion on the merits of the individual

case.

In order to know how powers such as that under the Immigration Ordinance are operated, it is perhaps time to ask:-

(1) What governmental powers are subject to exercise in such a manner

on the requirement of the Governor or Chief Executive?

(2)

(3)

(4)

(5)

To what extent could individuals within the executive seeking to exercise their discretion in a fair way be subjected to political pressure in the exercise of those powers?

How might the above combine to have an effect on the exercise of freedoms such as the freedom of speech?

Is the Bill of Rights as drafted a safeguard against this?

Are the institutions intended to safeguard Hong Kong's "lifestyle", such as Legco, able to examine the exercise of such powers, and prevent abuse? (See paragraph 5.19 in relation to a U.K. suggestion.)

(6) How might such powers be re-drafted, or other such discretionary

powers enshrined in law or regulation, so as to provide greater certainty in the application of defined and generally known criteria?

I believe the Working Group could consider these issues as a matter of importance.