freedoms guaranteed by the ICPR into the domestic law of Hong
Kong, and gives them special priority over ordinary legislation.
It may be that such an exercise of incorporation will be effected
in the Basic Law envisaged by the Joint Declaration by the
Governments of the United Kingdom and of the People's Republic of
China of 26th September 1984, so as to ensure (in the words of
Annex XIII to the Joint Declaration) that after 1st July 1997 the
provisions of the ICPR "shall remain in force" in Hong Kong. This
would seem to be especially necessary since the People's Republic
of China has not ratified
not ratified the ICPR. Indeed, for the reasons
summarised below, I consider that some exercise in incorporation is necessary in order to ensure the effective implementation of the ICPR in Hong Kong, in accordance with Article 2 of the ICPR.
Otherwise, the promise made in Annex XIII of the Joint
Declaration that
will
Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of
speech"
have a hollow ring for the film industry and for people
wishing to see films in cinemas in Hong Kong. The "laws previously in force" will include the film censorship legislation without any paramount guarantee of free speech, modelled on Article 19 of the ICPR, having priority over such legislation to
the extent of any inconsistency.
4. The Joint Declaration states that the provisions of the ICPR
"as applied to Hong Kong shall remain in force." However, at
present it is not possible to test the compatibility of the legislation with the ICPR, by means of a complaint to the Human Rights Committee, because the United Kingdom has not recognised the competence of the Human Rights Committee (under the Optional Protocol to the ICPR) to receive individual complaints against the United Kingdom. Nor (because of Parliamentary sovereignty) is it at present possible to challenge the compatibility of primary legislation with the ICPR before the Hong Kong Courts. Accordingly, the only existing safeguard against breaches of the fundamental right to free expression, guaranteed by Article 19 of
3