TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 122

HUD 301|

RECEIVED

INDI

Mr Footman HKD

PA

FROM:

Paul Fifoot

288

DATE: 30 November 1987

ANTHONY LESTER'S OPINION ON FILM CENSORSHIP IN HONG KONG

1.

In addition to the points raised earlier by others, Mr Lester's opinion asserts:-

2.

a)

b)

c)

that the right to freedom of expression is not adequately secured with effective remedies (para 1(a)) and in this respect there is a failure to comply with Art. 2.2 and 2.3 a and b (the second para 6 - 9);

that the mere existence of the censor's discre- tionary power "chills" the right of free expression and therefore, even in the absence of exericse of that power in a particular case, a violation of art. 19.2 (paras 1(c) and 18);

that, were the power to be exercised and challenged, the Government would not be able to satisfy the requirement that the restriction

was "provided by law" (paras 11 to 13).

The assertion at para 1(a) challenges the UK's position that it is not necessary to adopt specific provisions to give effect to the ICCPR (or the European Convention on Human Rights) so long as domestic law guarantees the relevant rights and free- doms. That is a defensible position having regard to Art. 2.2 of the ICCPR which provides "where not already provided for by existing legislative or other measures, each State Party

undertakes

to adopt legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant." The UK would take the view that the common law is included in "existing.... other measures". Where the UK's position is possibly vulnerable is that there is for example no express positive right to freedom of expression in English law. That right exists in the common law on the basis that what is not prohibited or restricted by law is permitted. However real therefore the protection accorded by the common law, the right of freedom of expression is a residual right where the common law or statute does not impose restrictions. It is thus open to the criticism that there is no positive rule of law asserting the right. However, the organs responsible for the supervision of the observance of the European Conven- tion of Human Rights have held that the obligations of a state to secure rights under that Convention are satisifed if the right is secured by unwritten law, ie common law and there is no reason why the position should be any different as regards the International Covenant.

/3.