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Having, I hope, established that the two formulas share the same intention and here I múst point out again that I hope Mr, LEE will agree that the intention of his amendment is not to give freedom of expression precedence over all the other factors provided for in Clause 10(2) stet (3), I now turn to consider which formula best achieves
the intention.
On a superficial analysis, there is no doubt that the words comply with suggest a stronger degree of obligation than take into account". But the ad hoc group has gone beyond a superficial analysis and has tested the merits of the two formulas, not in the abstract
but rather in the context of legislative drafting.
The result of the analysis, put shortly, is
that the take into account formula is, in legislative
as effective as the "comply with formula but
better drafted. The reasons are as
as follows
First
the 99, as to effectiveness for the
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purposes of judicial review, it is a rule of
law that when an international convenant is
binding on a state or territory (as is the case here in Hong Kong with the International
Covenant on Civil and Political Rights) and that territory's domestic legislature then enacts a provision requiring that the covenant
be "taken into account", the courts will
interpret those words as intended to carry out the obligation of the covenant. The point is that the courts recognise that the legislature has enacted the domestic legislation in full knowledge of the states' OIA territories' obligation under the covenant. And what is
the obligation under the covenant? It is to give effect to Article 19. The formula
comply with* therefore achieves
the