Urgent Business: Hong Kong, Freedom of Expression and 1997
On a separate restriction, the notion of public order also poses interpretation difficulties. The French term ordre public is used to indicate that public order should not be interpreted in a narrow sense as in English law but rather as a broader interplay between the need for certain restrictions, on grounds of peace, order, safety, public health and morals, and the recognition that the authorities must exercise their powers with restraint, and with respect for human rights. However, as one commentator has said, the obscure quality of the concept means that it "could turn out to be a catch-all from the perspective of the government".18
This broader public order concept has also historically been the basis for the right to license broadcasting and cinema, though Article 16 does not explicitly lay down this right. Given the power and immediacy of broadcasting, such a right is understandable, though there is also a duty to ensure that licence terms which directly concern freedom of expression are not incompatible with the Bill of Rights. The territory's Television Ordinance, for example, permits the Governor in Council to impose on a licensee "such conditions as he may specify", a power that does not sit at all comfortably within the scheme of Article 16.
The question of whether a licence should be permitted to act as a mechanism of prior censorship or prior restraint is also important here. Although there is no mention of it in Article 16 (or by extension Article 19), it is generally understood that prior censorship is not justifiable under the terms of the Covenant: the general rule is post-publication accountability." It is, however, accepted practice in Hong Kong as in other countries that prior censorship of films, for example, is justifiable on the grounds of the protection of youth. The acceptable grounds for prior censorship are by common practice narrowly limited, and would not include the political censorship permitted under the present Film Censorship Ordinance which allows for the prohibition of films that may "seriously damage relations with other territories" 20
There are also similar inconsistencies with regard to prior censorship in broadcasting legislation. Among them are provisions that permit the Broadcasting Authority, the body overseeing the regulation of television and sound broadcasts, broad powers of prohibition and pre-censorship of programmes. Although such legislation is discussed in detail in Chapter 4, it is worth pointing out here that the scale of the administration's discretionary powers, and the penalties it can bring to bear on licensees for transgression including the ultimate sanction of revocation of licence, are very considerable indeed. There are, under Article 16, no grounds of restriction that would justify such censorship.
1
will have their scores settled after 1997. See "China Puts Pressure on Hong Kong Media", Asian Wall Street Journal, 16 July 1991.
18 Yash Ghai, supra note 1, at 391.
19 Kevin Boyle, supra note 1, at 19.
20 See Chapter 4, Section 4.5.
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