ENG-1982 — Page 19

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REVIEW

possession of these attributes. Certainly without them it would never have occurred, nor could it continue.

The law merchant of England has developed over the centuries; the principles of English commercial law retain pre-eminence throughout the trading world despite changing world politics and patterns of trade. They are the model which all the common law jurisdictions follow - American, African, Indian, Australasian, Canadian and Commonwealth. Hong Kong's laws gain from their adoption a strength, familiarity and acceptability they could not otherwise possess.

In short, it is a combination of Hong Kong's Constitution and of its laws which have created the international confidence which is the precondition of prosperity. The essential ingredients creating that confidence are the absence of arbitrary power and the knowledge that unconstitutional change will not occur.

The Structure of the Constitution

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Territories outside the United Kingdom which are dependencies of the British Crown are ruled pursuant to the Royal Prerogative, of which Letters Patent and Orders in Council are legislative manifestations. But, in the constitutional monarchy that is the United Kingdom, the Crown acts on the advice of the Prime Minister and Government of the day; and they are responsible to Parliament. So it is the British Foreign Secretary who answers today to Parliament for the affairs of Hong Kong; he it is who is the 'one of our Principal Secretaries of State' referred to in Article II of the Hong Kong Letters Patent.

Hong Kong, unlike the United Kingdom, has a written constitution, though the legal basis on which the Government of Hong Kong rests is remarkably laconic. The Letters Patent and Royal Instructions, first enacted in 1843 as a Royal Charter, the present form of which, passed under the Great Seal of the United Kingdom, dates from February 14, 1917, and which has been amended a dozen times since, most recently in 1982, provide the essential structure:

'I. There shall be a Governor and Commander-in-Chief in and over Our Colony of

Hong Kong and its Dependencies...

II. We do hereby authorise, empower, and command Our said Governor and Commander-in-Chief... to do and execute all things that belong to his said office, according to the tenor of these Our Letters Patent and of any Commission issued to him under Our Sign Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign Manual and Signet, or by Order in Our Privy Council, or by Us through one of Our Principal Secretaries of State, and to such laws as are now or shall hereafter be in force in the Colony." Two Councils are created to assist the Governor in his duties:

'V. There shall be an Executive Council in and for Hong Kong, and the said Council shall consist of such persons as We shall direct by Instructions under our Sign Manual and Signet . .

VI. There shall be a Legislative Council in and for Hong Kong and the said Council

shall consist of such persons as we shall direct by Instructions.

VII. The Governor, by and with the advice and consent of the Legislative Council, may

make laws for the peace, order and good government of Hong Kong.'

It is upon the legal base of the twenty-four Articles of the Letters Patent and the thirty-seven Royal Instructions which flesh them out in more detail, that rests the edifice that is the Government of Hong Kong, with its 154 000 civil servants, 22 000 policemen, 128 judges and magistrates and 409 statutory ordinances.