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HONG KONG LEGISLATIVE COUNCIL 18 May 1988
The third argument advanced is that it is part of the purpose of the new sub- clause for it to apply also to the board of review with its majority of non-official members, and that it is not necessary or appropriate to assume that this board need to be directed to comply with article 19. This is a fallacious argument because it is unnecessary to legislate so as to require the board of review also to comply with article 19. The board of review in effect hears appeals from the decisions of the censor. If the complaint is that the censor is wrong in having banned a film in breach of article 19, then in deciding whether there is merit in the appeal, the board of review must determine whether the censor has complied with article 19. In short, under my formula, the board of review must ensure that article 19 is complied with by the censor.
The fourth argument advanced is that if my formula were adopted, a precedent will be created whereby binding commitments based on international agreements are imported directly into Hong Kong's domestic legislation. This is, with respect, a specious argument. First, if we are starting a good precedent, what possible objection can there be to it? Secondly, I am concerned that if the hon. YEUNG PO-kwan's formula were to be adopted, we would be starting a very bad precedent, in that this Committee would knowingly enact a law which is in breach of an international covenant. Thirdly, under article 2 of the covenant, a contracting state that is the United Kingdom-has an obligation to pass the appropriate domestic laws to give effect to the principles enshrined in the covenant. What I am seeking to do in proposing my amendment is to ensure that we, in Hong Kong, will comply with article 2 although the British Government has for years been neglecting its duties cast upon it by article 2.
The fifth argument advanced is in fact from the Legal Adviser of OMELCO which the hon. YEUNG PO-kwan has fully adopted. It is based on a principle of construction of statute that the words of a statute passed after a treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be incon- sistent with it'. These words come from the House of Lords case of Garland v. British Rail (1982) 1 CR 420. The argument is that applying this principle to clause 10(2)(c), a court, when called upon to interpret it together with the hon. YEUNG PO-kwan's proposed clause 10(3)(d) 'would undoubtedly interpret it as being intended to carry out the international obligation of Hong Kong under article 19. And that obligation is to give full effect to the right to freedom of expression, subject only to limited restrictions'.
But this argument is good only if clause 10(2)(c) is introduced without any reference to article 19. In such a case, if an aggrieved distributor brings the matter to a court in Hong Kong on the ground that the censor was wrong
in banning his film under clause 10(2)(c) for a reason which falls outside the
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