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THE HONGKONG TELEGRAPH, THURSDAY, FEBRUARY 5, 1931.
·RULING ON PRESS
CENSORSHIP.
DEFENCE SUBMISSIONS OVER-RULED.
EMERGENCY QUESTION When the summonses alleging an evasion of the. censorship on the part of four Chinese news- papers (the Wah Kin, Nam Chung, Nam Keung and Chung Hoa) were again before Mr. Lindsell yester day afternoon, His Worship gave a lengthy decision over-ruling the two legal points submitted by the defence, which
the disputed tegality of the Emergency Regula- tions Ordinance and the Press consorship thereunder.
Mr. T. 9. Whyte-Smith appeared for the Secretariat for Chinese Affairs, Mr. F. II. Loseby for the Wah Kin, and Mr. J. T. Prior for the other three papera summoued. Giving his judgment, Mr. Lind- seil said:
The two points I have to decide in this cune are:
(1) whether or no the Emer- Ordin- Kency Regulations
ance of 1922 is ultra vires the constitution of this Colony, and
(2) If that Ordinanc in ultro vires, whether or no the Re- gulations made thereunder ( in 1925 by the Governor in Counell for the Censorship i of the Press are niten pires the Ordinance,
To Luke the Ordinance first. Article V of the Letters Patenl. of 1917 constituting the office of Governor raci tomtuanster-in- Chief of the Colony of Hongkong
In this connexion, however, I am I hold that the Governor in satisfied that the words "ropugnant Legislative Council is something to the law of England," must be more than a mere agent hound by interpreted in the light of those the ordinary rules of Agency. used in Sec. 2 of the Colonial so, it would inevitably follow, that Laws Validity Act 1886 (28 & 29 without definito authorisation Vict. C.63), that is to any "repug from the Crown the Legisinture nant to the provisions of any Act could not empower the Executive of Parliament extending to the to make any binding regulation Colony to which such (colonial) whatsoever. law may relate or repugnant to Moreover, even if the law of any order or regulation made un Agency does apply, then the dele- der authority of such act of Par-gation of powers conferred by Or- Hament."
dinance No, & of 1922 is perfectly Cf. the Judgment of the Privy valid inasmuch as it has since Council in re Reg., Maraie cz been approved by the Crown's ox parte Marnie 1902 A.C. p.31 presalon of non-disallowance
that Ordinance, which amounts to rends:
There is no doubt that up to authorisation of the agent's action. the passing of the Colonial Cf. Pong Wai Ting and others v. Laws Validity Act difficulties | Attorney General of K.K.
With the second assumption I had arisen and it was for the ex- press purpose of getting rid of have already dealt in holding that the dimculties raised on the sub-the establishment of a Press Cen- ject and particularly in refer-sorship is not repugnant to any ence to the words "repugnant Act of Parliament extending to
and to the laws of England" that the Colony,
hence could
of
the Act was passed, because one validly be effected in this Colony of the common and familiar by Ordinance in special vireum- forma whereby the Colonial stances.
Legisintures were constituted On this head again the defence and constitutions given provid- | fails.
of
Leen Powers Exist.
ed that nothing" enacted should be repugnant to the laws England: and there is no doubt
(3). I have finally to consider that that had given rise to so whether "the Newspaper cle" Re- doubts and dimenities which thegulations set out on p. 802 of the Act was intended to cure."
are
Then later (age 501 "The oh-egulations of Hongkong under the first of which these proveed. vious purpose and meaning of ings have been brought, the Statute was to preserve the intre rires the Ordinance. I have right of the Imperial Legris alrendy held that the Legislature ture to teisinte even for the would have power, if it so desire Colony, although a focal Legisla-in ture had been given, and make it impossible when an Im perial Statuts has been passed expressly for the poipbre governing that Colony for the Colonial legislature in that sense
to
65
an emergency, to establish censorship of the Press, and that it has authority to depute such ower to the Governor in Exeen- tive Council.
Beurs the Newspaper Regula- tions are prima facic binding. to enact anything repugnant The only lines loft to the defence
An express lase applled to that
Colony by the Imperial Legislan which to attack them are
(1) that although such regula- fure itself. That is the meatinos can only be made on an oc ing of those words."
No Forbidding of Censorship.
e-
ension which the Governor in Couuel considers to be an casion of emergency or publie I can find no Act of Parliament danger," neither theat regulations forbidding centorship of the Press nor any others purporting to have VI Halsbury 1, 319, Para, 461. been made under the Ordinance "Apart from the general pro-contain anything to show that any visions ensuring the peaceful such state of emergency existed
#f enjoyment rights of property when they were made,,
and the freedom of the subject I can find no force in this con-
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from illegal detention, duress. teation, but hold contra that in THE SWEDISH EAST ASIATIC
punishment. or taxation, con-such a case a presumption arises tained in the four great Char-that the regulations were made in (Le Magnanccordance with the provisions of ters or Statufes Carta, the Petition of Right, the the enabling Ordinance
its Dependencies and super- Reding the original Letters Patent of 1888, provides for the enuslitu tion of Legislative Council; in Article VI it is laid down that "the Governor may, by and with the advice of the Legislative Coun cil, make laws for the pence, order and good government of the Colef. ony" Article X empowers the Governor In his discretion, but subject to any instructions issued to him under the Sign Manual, etc. to give his assent to any Bill pass- ed by the Legislative Council; and finally Article X1 provides that In the making of any laws the Gavernor and Legislative Comcil shall conform to and observe all Bill of Rights and the Act of (2) The second line of attack is
ales, regulations, and directions Settlement) which regulate the thist in that behalf contained in any relations between the Crown and
Allowing that the Regulatious the issued under Justructions
people, the liberties of the sub-were duly passed to meet an emer- Sign Manual and Signet.
jeet are not expressly defined in
gency, yet it is clear from the re- Turning to the instructious
uny law or code."
peal of the more drastic of them which bear the summe date as the Hence I can see no repugnaney that that emergency has passed, Letters Patent, 14th February, to any law of England in a local and therefore it is a gross abuse 1917, the defence has quoted Arli- Ordinance that makes provision of its powers by the Executive to ele XXVI which lays down that for the establishment of a Press continue to maintain the Press the Governor shall nut give his censorship. Pro tante at any rate: consent to any bill affecting infer such an Ordinance will be valid. alia the currency of the Colony or 1 hold therefore that on this subjecting non-Europeans to reheal the defence fails. strictions which are not imposed (2). A second line of defence is in Executive Council is the judge argued based on the principle which is to whether the emergency is on Europeans, and has that the Emergency Regulations part of the law of Agency, that past? The worst of it may be Ordinance which confers almost delegatus non potret delegate, 1.e.over, and yet some danger still re- unlimited powers on the Executive that an agent cannot without the mains. Again there seems to me to arise the presumption that in- Council is within the category of authority of his principal bestow such Bills. Further, even admit-on a third party any share of his much as these particular regula-
(Continued on Page 11.). ting that the Ordinance, No. 5 of responsibility. Hence it is argu- 1922, may be saved by the funded that the Legislature of this
of the same paragraph
Article Colony, being no more
thin an which expressly empowers the agent of the Crown, cannot em- Governor when he has satisfied power the Executive Council to himself that urgent necessity make for it regulations having the exista for bringing such a law into force of law which it itself has no immediate operation, assent right to make. The argument as thereto provided it is not, repug- it stands, can hardly be gainsaid, nant to the law of England. Mr. | but it is based on two assumptions. Loacby maintaing that this last (a) that the Legislature is no proyiso destroys the effect of the more than the Crown's agent and. saving elause, inasmuch as any In- terference with individual liberty and the freedom of the Preas is in fnet repuguant to the Common Law of England.
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