only be excluded from the disciplinary provisions in Letters Patent XVI and CRS once such legislation were put in place. If, however, the Ordinance were to come into force before the Colonial Regulations were changed, there would be two separate regimes applying to these judicial officers, one under the Ordinance providing for their tenure of office, and one under the existing CRs which would still provide that these judicial officers would be dismissible at the Crown's pleasure. other hand, if the amendments to the CRs were made before the Ordinance came into force no replacement provisions on tenure of office would have been made for these judicial officers).
5.
(On the
The difficulty stems from the words "unless otherwise provided by law" in Letters Patent XIV (1). These words indicate that officers cease to hold office at the Crown's pleasure only if other legislative provision has already been made. The natural meaning of these words is that "provided by law" means provided in legislation which is already in force. If, however, the Letters Patent amendment, the Ordinance and the CRS were to be brought into force together in order to avoid the difficulties referred to in paragraph 4 above, it would be necessary to interpret the phrase in Letters Patent XIV (1) "otherwise provided by law" as capable of meaning not just as provision in a law already in force but as including a law only coming into force on the same date as the amendment to Letters Patent XVI excluding the judicial officers. The phrase is capable of bearing this construction. The CRS would then be brought into force on the same date as the Letters Patent amendment and the Ordinance.
6. The position of judges is rather different. The Judicial Officers (Tenure of Office) Ordinance is irrelevant to them since they are excluded from the Judicial Officers (Tenure of Office) Ordinance and indeed there is no Ordinance in force providing for their tenure of office. Letters Patent XVIA however makes such provision. Since the Letters Patent are, of course, law, presumably one would have to argue that the requirement in Letters Patent XIV (1) that public officers, including judges, hold office at the Crown's pleasure unless otherwise provided by law is satisfied by Letters Patent XVIA which makes legal provision for the tenure of office of judges. "Unless otherwise provided by law" in the context of the Letters Patent would seem to refer more naturally to legislative instruments other than the Letters Patent but it may be argued that the words "unless provided by law" are also capable of referring to other provision made elsewhere in the Letters Patent. This argument would avoid any conflict between Letters Patent XIV (1) and the CRS.
7. In conclusion, having reflected further on the rather ambiguous language in Letters Patent XIV (1), I think a conflict between the Letters Patent amendments and the CRS can be avoided. I am now content for the amendments proposed by the Hong Kong Government to be made to the CRS.
2
Shelaph Brocho
Shelagh Brooks
No comments yet.
Private notes are available after approval.