TNAG-1814-FCO40-2575-Hong-Kong-Film-Censorship-Ordinance-1988-(No.-25-of-1988)-1988 — Page 260

CONFIDENTIAL

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Footman No 343

Mr HKD WH 312

1.

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FROM:

PAUL FIFOOT

DEPUTY LEGAL ADVISER

DATE: 30 MARCH 1988

PA

As I indicated in paragraph 1B of our telno 657, it would be difficult to confine the obligation to take account of Article 19 of the ICCPR to clause 10 (2)c of the Bill. Hong Kong's decision to insert the reference in clause. 10(3), when it will apply in respect of all paragraphs of clause 10 (2), is therefore a sensible one.

2. This approach fits in well with Article 19 (3) of the ICCPR / action on the basis of all of the three paragraphs in clause 10 (2) must be justified in the light of the exceptions provided for in Article 19.3 a and b. The principle argu-

ment for the inclusion of the reference to Article 19 in clause 10 (3), therefore, is that, since we have decided to include a reference to the Convention in relation to this censorship clause, it would be restrictive to single out one possible reason for censorship since censorship would have to be justified in Convention terms as regards any of the three. Clause 10(3) is therefore the appropriate place for this reference.

3*

The arguments set out in para 2 of Hong Kong telno 1177 seem to me to go to the question: why is it necessary to spell out particular permissible restrictions in three paragraphs of clause 10 (2) when you are prepared to accept a general requirement that censorship must satisfy the restrictions of Article 19.3 of the ICCPR? The arguments are nonetheless valid. I think it is perfectly defensable to take the line, as proposed in paragraph 2(b) and (c) of the TUR,that it is permissible to a State to indicate the particular areas within the general ambit of Article 19.3 which it envisages as the areas in which it may seek to impose these permissible restrictions. Further, if it decides to take this course, it is desirable to use the kind of language which is consistent with its own jurisprudence rather than the wide and generalised terms of an international Covenent. The use of such local terms and the identification of the particular areas of use, however, in no way detracts from the necessity of ensuring that, in the application of the Statute, the Executive complies with the obligations set out in the Covenant.

of

Paul Fifoot Legal Advisers K 164

30 March 1988

CONFIDENTIAL