!
"
t
1
!
case law as of highly persuasive value.
"Provided by law" and Legal Certainty
11. Mr. Barendt has stated (Opinion, paragraph 3) that there
seems to be "no doubt" that the first requirement that the
measure of restriction must be "provided by law" is satisfied,
for the censor's powers are set out clearly in a a Bill to be enacted in Hong Kong, and further as regards the Regulations, they have been introduced to put the standards presently applied by the film censorship authority on a legal footing. I am less certain than Mr. Barendt that the restrictions (whether under the Regulations or under the proposed Bill) clearly satisfy the requirements of legal certainty contained in the phrase "provided by law". Those requirements were explained by the European Court of Human Rights in paragraph 49 of its judgment of 26th April 1979 in the Sunday Times Case, Series A No. 30, as follows:
12.
"First, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen if need be with to regulate his conduct: he must be able - appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which given action may entail. Those circumstances need not be foreseeable with absolute certainty; experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and
are and application whose interpretation and
questions of practice."
I agree that the legislation satisfies the requirement that it should be adequately accessible. However, I consider that it
is at least arguable that the legislation does not satisfy the requirement of reasonable foreseeability. The test is whether a film producer or distributor could reasonably foresee in all the circumstances that the public showing of film would, in the censor's opinion, damage,
or be seriously or seriously damage, prejudicial to good relations with other territories (to use each
9
a
Page 135Page 136