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HONG KONG LEGISLATIVE COUNCIL — 18 May 1988
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' or the 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 no greater obligatory effect in legislative terms than 'take into account'. The court's supervisory role upon judicial review will thus be the same under both formulas.
Second, as a matter of drafting clarity, it is entirely inappropriate to require in our legislation that a censor 'comply with' article 19 since part of article 19 itself as stated in paragraph 3 requires that any restriction on the right to freedom of expression be provided by law. A censor is simply not competent to provide restrictions by law. That is the job of the legislature.
Third, even overlooking the drafting deficiency noted above, the 'comply with' formula is unnecessary and inappropriate in the context of the role of the board of review. It is unnecessary because, for the reasons already given, it achieves no more than the 'take into account' formula; and it is inappropriate because it implies that nothing short of an order from the legislature will induce the board to give due weight to the principle of freedom of expression. Such an approach is entirely inconsistent with the legislature's intention as the function of the board, which comprises a majority of non-official members with a non-official chairman, performing an independent role.
In summary, Sir, I believe, as do the majority of the ad hoc group (whose views were endorsed by the majority of the in-house meeting on 6 May 1988) that the amendment which I am proposing, is a valuable and effective improve- ment to the Bill and, with great respect to Mr. Martin LEE, I commend it to this Committee.
HIS EXCELLENCY THE PRESIDENT: I shall now call Members who have indicated that they wish to speak to this amendment.
MR. MARTIN LEE: Sir, on 8 July 1987, I moved the motion to amend the Film Censorship Regulations 1987, made under the Places of Public Entertainment Ordinance, by deleting regulation 3A(vii), the effect of which was to revoke the power of the censor to refuse to approve the exhibition of a film when he was of the opinion that the showing of the film in a public place would 'damage good relations with other territories'. That motion was in connection with an interim measure introduced by the Government pending this Bill, and that motion was defeated.
The central issue of the debate then was whether or not the censor should be given the power to ban a film for political reasons on the ground that its exhibition would damage good relations with other territories. My principal
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