1436
HONG KONG LEGISLATIVE COUNCIL 18 May 1988
purposes of the board of review when it considers the legitimacy of a censorship decision. This is important because the board, with its majority of non-official members, is intended by the Bill to fulfil the role of a competent administrative tribunal for those aggrieved by a censorship decision. The statutory recognition of the principle of freedom of expression will surely enhance this role, and is in accordance with Hong Kong's obligations under article 2 of the covenant to provide a competent authority for those seeking remedies for infringement of individual rights under the covenant.
Sir, the ad hoc group is aware that doubts have been expressed as to the effectiveness of the form of wording proposed in this amendment. It is said that the amendment does not go far enough to protect freedom of expression because the form of wording does not appear to expressly oblige the censor to 'comply' with article 19.
On behalf of the majority of the ad hoc group, it is, therefore, necessary for me to explain why it is considered that the formula 'take into account' is preferable to 'comply with' in the context of article 19. In so doing, I shall attempt to avoid wearying Members by excessive length. But since the hon. Martin LEE has given notice of his intention to move an amendment to clause 10 to adopt the 'comply with' formula, it may be helpful to this Committee if, with your permission, Sir, I now deal comprehensively with the respective merits of both formulas so that Members will have, I hope, a clear picture in their minds.
The starting point for an objective analysis of the relative merits of the two formulas is 'what are they intended to achieve?'. This is of fundamental importance, for unless we are clear as to the intended effect, we cannot make any sensible judgement as to which wording will achieve the intention better. Now, I will deal with the 'take into account' formula first.
First, what is the intended effect of the 'take into account' formula? It is to oblige the censor to act in accordance with the principle of freedom of expression set out in article 19. But what does 'act in accordance with the principle of freedom of expression set out in article 19' actually mean? "The right to freedom of expression,' both in common sense terms and as used in article 19, cannot be an absolute and unqualified right to be elevated above all other considerations.
To illustrate this point briefly, if the right to freedom of expression were to be treated as absolute and unqualified, there could be no lawful constraints upon violence or pornography in films or in any other media.
Article 19, therefore, recognises that the right to freedom of expression is not absolute or unqualified. This is why the article states, in paragraph 3, that the right 'carries with it special duties and responsibilities' and may be subject to certain restrictions so long as the restrictions are provided by law and are necessary to protect, among other things, the individual countries' or territories'