TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 134

competent authority provided for by the legal system of the State" (in accordance with Article 2 paragraph 3b);

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As regards point (iv), it is true, as I have indicated, that the film censor is subject to judicial review under the general principles of English administrative law, including a presumption of conformity with Article 19. However, these principles would not permit the Courts to substitute for the

for the broad and vague subjective test of whether, in the censor's opinion, the public showing of a film would (in the language of the proposed Bill) be "seriously prejudicial to good relations with territories outside Hong Kong" (or "would

(or "would seriously damage good relations with territories outside Hong Kong"),

Hong Kong"), the strict

the strict test of necessity subject to the criteria contained in Article 19 paragraph 3.

Exceptions to the right to free expression

10. I turn to consider whether the legislation

the legislation is compatible with Article 19 read on its own. There is no doubt that film censorship restricts the right to freedom of expression, guaranteed by Article 19 paragraph 2. By virtue of Article 19 paragraph 3, the exercise of that right may be

be subject to "certain restrictions". The rest of that paragraph is drafted in restrictive language. Thus, the restrictions "shall only be" such

are "provided by law" and are "necessary" in terms of Article 19 paragraph 3a or b. In considering the meaning and effect of this provision, it is relevant to have regard to the case law of the European Court of Human Rights, whose judgments interpreting the equivalent provision (Article 10) of the European Convention on Human Rights have strong persuasive authority with the Human Rights Committee. The language of Article

Article 10 of the European Convention is not identical to the language of Article 19 of the ICPR. The latter does not, for example, refer to the need for any restriction to be necessary "in a democratic society". Much of the European Court's language refers to the democratic imperative, and, to that extent, the application of its case law to the interpretation of Article 19 must be qualified. Nevertheless, it provides the clearest source of guidance in this area, and I would expect the Human Rights Committee to treat its

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