CONFIDENTIAL
FM HONG KONG
TO DESKBY 021030Z FCO
TELNO 4549
OF 02093OZ DECEMBER 87
MIPT
FILM CENSORSHIP
Hend 30111
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CONFIDENTIAL
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MDHIAN 8648
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COMMENTS ON THE OPINION OF ANTHONY LESTER, QC
THE QUESTION OF WHETHER A PARTICULAR COURSE OF ACTION IS
CONSISTENT WITH HER MAJESTY'S GOVERNMENT'S INTERESTS AND OBLIGATIONS
IS A MATTER FOR HER MAJESTY'S GOVERNMENT. THE HONG KONG GOVERNMENT
HAS THEREFORE CONSULTED THE FCO ON THE LEGAL OPINION PROVIDED BY
ANTHONY LESTER QC ENTITLED ''FILM CENSORSHIP IN HONG KONG AND THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS' AND DATED
12 OCTOBER 1987 (''THE OPINION' '). (TWO DOCUMENTS DATED 24 JUNE
1987 ENTITLED 'COMPATIBILITY OF GOOD RELATIONS' WITH ARTICLE 19
OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
''COMMENTS ON THE OPINION OF MR BARENDT' SET OUT THE VIEWS OF THE
HONG KONG GOVERNMENT AFTER TAKING THE ADVICE OF FCO. THOSE VIEWS
ARE NOT REPEATED HERE AND THIS NOTE SHOULD BE READ IN CONJUNCTION
WITH THEM.)
2.
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HAVING REGARD TO THE ADVICE OF THE FCO, THE HONG KONG GOVERNMENT MAKES THE FOLLOWING COMMENTS ON THE OPINION.
3. IN ADDITION TO THE POINTS RAISED EARLIER BY, INTER ALIA, MR MARTIN LEE QC AND MR BARENDT THE OPINION ASSERTS -
(I)
THAT THE RIGHT TO FREEDOM OF EXPRESSION IS NOT ADEQUATELY
SECURE WITH EFFECTIVE REMEDIES AND, IN THIS RESPECT, THERE IS A FAILURE TO COMPLY WITH ARTICLE 2(2) AND 2(3) (A) AND (B) OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR):
(II) THAT THE MERE EXISTENCE OF THE CENSOR'S DISCRETIONARY
POWER CHILLS'' THE RIGHT OF FREE EXPRESSION AND THEREFORE, EVEN IN THE ABSENCE OF THE EXERCISE OF THAT POWER IN A PARTICULAR CASE, THERE IS A VIOLATION OF ARTICLE 19(2):
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(III) THAT WERE THE POWER TO BE EXERCISED AND CHALLENGED,
UNITED KINGDOM GOVERNMENT WOULD NOT BE ABLE TO SATISFY THE
REQUIREMENT THAT THE RESTRICTION WAS ''PROVIDED BY LAW''.
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