competent authority provided for by the legal system of the
State" (in accordance with Article 2 paragraph 3b).
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,
However, these principles would
not permit the Courts to substitute
substitute 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 seriously damage good relations with
territories outside Hong Kong"), the strict test
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 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
of that right may 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 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
8
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