TNAG-1731-FCO40-2444-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 263

5

السلام

Having, I hope, established that the two formulas share the same intention and here I múst point out again that I hope Mr, LEE will agree that the intention of his amendment is not to give freedom of expression precedence over all the other factors provided for in Clause 10(2) stet (3), I now turn to consider which formula best achieves

the intention.

On a superficial analysis, there is no doubt that the words comply with suggest a stronger degree of obligation than take into account". But the ad hoc group has gone beyond a superficial analysis and has tested the merits of the two formulas, not in the abstract

but rather in the context of legislative drafting.

The result of the analysis, put shortly, is

that the take into account formula is, in legislative

as effective as the "comply with formula but

better drafted. The reasons are as

as follows

First

the 99, as to effectiveness for the

A

་འ་

purposes of judicial review, it is a rule of

law that when an international convenant is

binding on a state or territory (as is the case here in Hong Kong with the International

Covenant on Civil and Political Rights) and that territory's domestic legislature then enacts a provision requiring that the covenant

be "taken into account", the courts will

interpret those words as intended to carry out the obligation of the covenant. The point is that the courts recognise that the legislature has enacted the domestic legislation in full knowledge of the states' OIA territories' obligation under the covenant. And what is

the obligation under the covenant? It is to give effect to Article 19. The formula

comply with* therefore achieves

the