TNAG-1689-FCO40-2339-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 105

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ALTHOUGH PLAUSIBLE, THE ARGUMENTS ARE NOT AS STRONG AS ONES BASED

ON FORMULATIONS INCLUDING THE TERM 'SECURITY' OR 'PUBLIC ORDER'.

(C) THE ARGUMENTS INCLUDE THE FOLLOWING. FIRST, THE ADMITTED

RESTRICTIONS ON THE RIGHTS PROTECTED BY ARTICLE 19(2) WOULD BE

'PROVIDED BY LAW' AND COULD NOT BE CHARACTERISED AS JEOPARDISING

THE ENJOYMENT OF THOSE RIGHTS CONSIDERED AS A WHOLE. SECONDLY,

THE RESTRICTIONS COULD BE SAID TO BE 'NECESSARY' IN THE LIGHT OF

THE PARTICULAR CIRCUMSTANCES OBTAINING IN HONG KONG, INCLUDING ITS

PROXIMITY AND RELATIONS WITH CHINA. IN DECIDING WHAT IS

1 'NECESSARY', WE CONSIDER THAT A BODY SUCH AS THE HUMAN RIGHTS

COMMITTEE WOULD TAKE ACCOUNT OF SUCH CIRCUMSTANCES, WITH A

READY APPRECIATION OF THE WISH OF THE AUTHORITIES IN HONG KONG TO

AVOID INVOLVEMENT IN POLEMICS FROM TAIWAN DIRECTED AT CHINA. MORE

GENERALLY, WE CONSIDER THAT FOLLOWING THE APPROACH ADOPTED TO

SIMILAR WORDING BY THE EUROPEAN COURT OF HUMAN RIGHTS, THE

AUTHORITIES ENJOY A MARGIN OF APPRECIATION OVER WHAT IS

'NECESSARY' IN A PARTICULAR COMMUNITY. WE BELIEVE THE COMMITTEE

WOULD RECOGNISE THAT DIFFERENT STANDARDS WERE APPLICABLE IN HONG

KONG AS COMPARED WITH, SAY, COUNTRIES. IN EUROPE OR NORTH AMERICA.

THIRDLY, WE CONSIDER THAT RESTRICTIONS MAY BE JUSTIFIED IN THE

CASE OF PARTICULAR FILMS ON THE BASIS OF AT LEAST THREE OF THE

CRITERIA IN ARTICLE 19(3). THESE ARE: (A) 'RIGHTS OR REPUTATIONS

OF OTHERS', WHCH MAY BE RELEVANT IN THE CASE OF FILMS ATTACKING

PUBLIC FIGURES IN CHINA: (B) 'THE PROTECTION OF NATIONAL

SECURITY', WHICH SHOULD BE INTERPRETED AS COVERING THE SECURITY

OF HONG KONG. (WE CONSIDER THAT IN A MATTER TO DO WITH SECURITY

FROM AN EXTERNAL OR EXTERNALLY-INSPIRED THREAT, THE 'MARGIN OF APPRECIATION' ON THE PART OF THE AUTHORITIES IS PARTICULARLY

EXTENSIVE SINCE THEY ARE BETTER ABLE TO ASSESS THE RISKS THAN

OTHERS.) FINALLY, (C) 'THE PROTECTION OF... PUBLIC ORDER (ORDRE

PUBLIQUE)' WOULD ALSO BE AVAILABLE IF THERE WAS REASON TO SUSPECT

THAT A PARTICULAR FILM COULD LEAD TO PUBLIC DISTURBANCES OR

PUBLIC DISQUIET LEADING TO DISAFFECTION ON THE PART OF LOCAL

PUBLIC OFFICIALS.

2. TO SUM UP, WE DO NOT BELIEVE THAT IT WOULD BE INCONSISTENT

WITH THE COVENANT FOR HONG KONG TO LEGISLATE USING EITHER OF THE

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