TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 164

scope of the powers of censorship. In my view, the vice of the

legislation consists not so much in the uncertainty of the law as in the over-breadth of the censor's powers, and also in the absence of adequate safeguards and effective control to prevent

misuse of the exercise of those powers. I have already considered

the second of these vices (the absence of adequate safeguards and

remedies) in the context of Article 2 (paragraphs 4 to 9 above).

However, it also arises as a potential separate breach of the

requirement of respect for the Rule of Law,

Rule of Law, inherent in the

phrase "provided by law" : see e.g., paragraph 55 of the European

Court's judgment of 6th September 1978 in the Klass Case, Series

A No.28; and paragraph 67 of the European Court's judgment of 2nd

August 1984 in the Malone Case, Series A No.82. It is a

consequence of the over-breadth of the powers

the powers of censorship combined with the absence of effective judicial control of the manner in which those powers are exercised. In my view, it is

strongly arguable that the legislation, in the context of the

general law of Hong Kong, does not satisfy these further

requirements of the Rule of Law inherent in the phrase "provided

by law".

Over-inclusive aims

14.

The next question is whether the aims of the restrictions

authorised by the legislation are within the scope of Article 19

paragraph 3. It is

is difficult to answer this question in the

abstract (ie., in the absence of

absence of a concrete case involving the

actual exercise of the censor's powers). Plainly, it is

theoretically possible for the powers to be exercised in a manner

which comes within Article 19 paragraph 3. Suppose, for example,

that the public showing of a film were believed to be seriously

prejudicial to good relations with the People's Republic of China

because it defamed their leaders. The banning of the film would

be done "for respect of the rights or reputations of others",

within the meaning of Article 19 paragraph 3a. Similarly, the

public showing of a film might be seriously prejudicial to good relations with the People's Republic by stirring up violence or

hatred in a manner which would come within the protection of

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