TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 182

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HONG KONG LEGISLATIVE COUNCIL 18 May 1988

(a) To ensure that the Government is able to rely on the doctrine of governmental margin of appreciation in the actual implementation of the law; and

(b) To provide that the only method to challenge the findings of the board of

review in court shall be by way of judicial review.

These suggestions were made because I had understood that the Administration had been apprehensive that if my proposal were to be adopted:

(a) the court might apply a strict interpretation to article 19 without giving the Government any margin of appreciation in the interpretation of the law; and

(b) that if the decision of the board of review was to be challenged in court, unless the remedy is by way of judical review only, the court might not follow the precedents in the European Commission of Human Rights applicable to aritcle 19.

I would now remind hon. Members of the provisions of article 2 of the International Covenant on Civil and Political Rights.

'(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdic- tion the rights recognised in the present Covenant, without distinction of any as...

kind, such as ... political or other opinion,

(2) Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.

(3) Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; . . .'.

It is obvious that if the hon. YEUNG PO-kwan's proposal is adopted in preference to mine, then the United Kingdom Government by the act of this Council, will be failing to fulfil its obligations under the covenant in failing (a) to ensure to all individuals within it territory and subject to its jurisdiction the rights recognised in article 19; (b) to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in article 19; and (c) to ensure that any person whose right to free expression guaranteed by article 19 is violated shall have an effective remedy.

Sir, lastly may I urge hon. Members to take great care over these amend- ments, for if clause 10(2)(c) were enacted together with clause 10(3)(d) as proposed by the hon. YEUNG Po-kwan, we would be passing a law which would

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