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关于总督职权的几点思考

  As a core convention, the business of government should be carried out by the ministers of the Crown, who “command the confidence” of Parliament. Andrew Ladley submitted that in New Zealand system, it was hardly conceivable that the Governor-General should be expected to re-take the royal powers, in the absence of an adviser.[9] However, the constitutional conventions, not being law, are unenforceable in the courts.[10] So in strict legal theory, ministerial advice is by no means “binding” advice. In extraordinary circumstances, a Governor-General might not follow ministerial “binding advice” and might exercise the reserve powers. This is what happened in Canada in the 1920s, Australia in 1975, and Great Britain between 1910 and 1915.
  It should be stressed here that although we can dissect the function of the Governor-General into three parts, the three roles overlap considerably, and more importantly, reinforce each other. [11]It seems clear that there exists a close relationship between the community and ceremonial role of the Governor-General. On the one hand, many of the Governor-General’s community functions have a ceremonial dimension, such as attendance at the official opening of buildings, address to open conferences, or launching special events and appeals; on the other hand, the ceremonial activities are also means through which the Governor-General can be seen as fulfilling his or her representative functions. In fact, most of the Governor-General’s constitutional activities are unknown to the public, which attribute little to the community and ceremonial functions. A good example is the royal assent to Bills. A bill passed the House of Representatives shall not become law without the Sovereign or the Governor-General assent to it.[12]In practice, the activities of the House of Representatives occupy a significant role and after a Bill has been passed by the House of Representatives, most people believe that the Governor-General just is a cipher in law-making: a Bill will certainly become law irrespective of the Governor-General’s willingness. One has argued that the role of the Governor-General in law-making has been reduced to a formality.[13] 
  However, we cannot negate the constitutional function’s effect on the community and ceremonial functions and vice versa. To some extent we even can say that the community and ceremonial functions have a crucial effect on the performance of the constitutional function. At this point, a good example is the criticism on Queen Victoria during her period of seclusion. The queen then worked assiduously at her papers and fulfilled all of her constitutional functions, but this mattered little to her subjects;[14] by contrast, the long-time absence of the sovereign led to the emerging of a republican movement in England in the 1960s. In analyzing the reason, Vernon Bogdanor considered that what the masses were concerned was not the constitutional but “the theatrical side of monarchy”[15]. He emphasized:
  To be an effective symbol, a head of state and particularly a sovereign has to be seen. There is a theatrical element of effective representative, and, unless this is recognized, a head of state will lack the authority which comes from public support. Then, in the long run, he or she will find it impossible, lacking that authority, to perform his or her constitutional functions effectively.[16]
  With the evolution of constitutional monarchy, however, most of the royal prerogative has been shifted to the “responsible government”, and the ceremonial and community functions, particularly the community function, are the very essence of the Governor-General’s role. The community function now is of fundamental significance in symbolizing and reinforcing national unity. It is the community function that creates an aura of authority that helps to render government legitimacy and continuity.[17] In the opinion of Sir Denis Blundell, it was the most important function of the Governor-General.[18]
  
  The reserve powers of the Governor-General [19]
  The reserve powers are certain royal powers which may be exercised by the Queen or her representative, other than on the advice of the ministers. Generally speaking, the reserve powers of the Governor-General include: the reserve power to dismiss the Prime Minister where he or she is acting grossly illegally or unconstitutionally; the reserve power to refuse, against ministerial advice, assent to bills passed by Parliament; the reserve power to refuse to accept ministerial advice to dissolve Parliament where a dissolution is being advised improperly or unnecessarily; and the reserve power to appoint the Prime Minister in the circumstances of a hung parliament where the state of the parties makes the choice discretionary.[20]


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