TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 179

HONG KONG LEGISLATIVE COUNCIL - 18 May 1988

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Human Rights Committee set up under part IV of the covenant, to consider violations of the convenant by Hong Kong Governemnt. In other words, any person aggrieved by the decision of the Hong Kong Government, through the censor, cannot bring the Hong Kong Government before the Human Rights Committee for a determination as to whether or not the censor has violated the rights conferred upon him by the covenant.

Let me now deal with the principal arguments put forward in opposition to my proposal, many of which have been advanced this afternoon by the hon. YEUNG PO-kwan. The first argument is that the International Covenant on Civil and Political Rights is an international agreement between states, rather than individuals, that to require an individual censor to comply with the covenant is inappropriate; and that to require him to take into account article 19 avoids this problem, whilst at the same time imposing on him an express duty to respect the principle of freedom of expression.

Sir, while it is true that the covenant imposes a duty on the contracting state rather than individuals within that state, there are two levels of 'compliance' we are looking at. First, a contracting state must not pass any law which contravenes the covenant. Secondly, the contracting state must not do anything which would constitute a breach of the covenant. Members of this Committee have to satisfy themselves that clause 10(2)(c) which introduces political film censorship does not infringe article 19 of the covenant. And before we can so satisfy ourselves, we must ensure that the censor, when he does exercise the statutory powers given to him by subclause 10(2)(c), will not be in a position to ban the film for reasons other than those which fall within the exceptions allowed for in article 19(3).

The censor, and for that matter, the board of review, are agents of the Hong Kong Government. The Hong Kong Government, therefore, cannot argue that it is not responsible for the acts of either the censor or the board of review if a film is banned under subclause 10(2)(c) in circumstances which fall outside the exceptions to article 19(3) and therefore constitute a breach of it. To require the censor to 'take into account' article 19 is unsatisfactory for the reasons already explained.

The second argument advanced is that to legislate to allow a censor a margin of appreciation normally afforded to governments while requiring him to comply with article 19 is, in effect, no different from requiring him to take it into account but is less satisfactory in terms of clarity. I cannot see, with respect, how any lawyer can argue that my formula is less clear than the hon. YEUNG Po-kwan's formula, for the hon. YEUNG PO-kwan's formula merely requires the censor to take article 19 into account whereas my formula requires him to comply with it. To say that the two are not different from each other is to turn a blind-eye to the obvious.