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HONG KONG LEGISLATIVE COUNCIL — 18 May 1988
1437
national interest (described in the covenant by the French concept of 'ordre public').
A fundamental question which arose during the ad hoc group's scrutiny of this Bill was whether there was a case for legislating a restriction to freedom of expression in the case of films which would be likely to seriously damage good relations with other territories. After very careful consideration, the majority of the ad hoc group concluded that, in principle, such a restriction was necessary and should be provided by law (hence clause 10(2)(c)), but that the Bill should be amended to safeguard against abuse of this restrictive power by, amongst other things, obliging the censor to exercise the power in accordance with article 19. And this is precisely the intention of the 'take into account' formula, which was endorsed by the majority of members at a full in-house meeting.
Turning now to the intention of the 'comply with' formula, I must say immediately that it is Mr. LEE's privilege to explain how, if at all, that intention is different from the 'take into account' formula. This is a crucial point because of Mr. LEE's intention in proposing the 'comply with' formula is that the right to freedom of expression should take precedence over all other factors which the censor must consider, he is in effect proposing an amendment which will nullify a basic principle of the Bill, namely, that the censorship process inevitably involves a balancing of conflicting factors. Since Mr. LEE is too experienced a legislator to seek to achieve changes to the principles of a Bill after it has been agreed to on Second Reading, it must follow that the intention of his amendment is not to nullify all other factors for the censor to consider as set out in clause 10, but rather to ensure that the censor is effectively obliged to act in accordance with article 19. And this, as I have already stated, is exactly the intention of the 'taking into account' formula.
Having, I hope, established that the two formulas share the same intention (and here I must 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) and (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 that '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 terms, as effective as the 'comply with' formula but better drafted. The reasons are as follows:
First, as to the effectiveness for the purposes of judicial review, it is a rule of law that when an international covenant 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