TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 181

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HONG KONG LEGISLATIVE COUNCIL

J

18 May 1988

1443

exceptions allowed for in article 19, the court will be faced with two alternative constructions. First, that it is the intention of the legislature to confer a new power on the censor but subject to article 19; or secondly, that the legislature's intention is to give a power which is completely independent of article 19(3).

Now, the application of this principle in Garland v. British Rail would mean that the court should adopt the first approach, namely, that the legislature's intention in enacting clause 10(2)(c) is that the power of the censor should not be exercised in such a way as would be inconsistent with article 19. But this would have been the position only without any reference being made to article 19, in the terms of the hon. YEUNG Po-kwan's formula or mine. But a totally different result would obtain if clause 10(3)(d) were enacted together with clause 10(2)(c), for the former merely casts a duty on the censor to take article 19 into account. It would then be open to the Government to argue before the court that the intention of the legislature is clear, namely, that a censor need only take article 19 into account but that he need not comply with it. This would effectively exclude the application of the principle in Garland v. British Rail; for such an express provision would preclude the application of the presumption. I therefore thank the Legal Adviser to OMELCO for bringing this principle to my attention. But, with respect to him, it does not help him or the Administration, in supporting the hon. YEUNG Po-kwan's formula. On the contrary, it shows quite clearly that this Committee should either make no mention of article 19 at all, or it must adopt my formula.

I must point out that these arguments have all been advanced by the Administration, including government lawyers. And indeed, Members of this Council were advised by the Legal Adviser of the Foreign and Commonwealth Office, last year, in relation to the interim measures, that regulation 3A(vii) of the Film Censorship Regulations 1987, which is not much different from the present clause 10(2)(c), would not infringe article 19. Unfortunately, the track record of the United Kingdom Government before the European Commission of Human Rights is far from impressive, being the Government which consist- ently ranks top-both in relation to the number of complaints brought against any government, and the number of unfavourable judgements received by any government. It is also significant to note that up to date, all the lawyers who openly support clause 10(2)(c) and clause 10(3)(d) happen to be government lawyers. And I shall leave hon. Members to draw their own conclusions.

Quite frankly, I have not heard a single argument advanced which is sound, as to why my proposal using the words 'comply with' should not be accepted, particularly, after two further provisions in my proposed amendments to make sure that the Hong Kong Government will not be disadvantaged thereby, by expressly enacting in the same Bill so as: