TNAG-1814-FCO40-2575-Hong-Kong-Film-Censorship-Ordinance-1988-(No.-25-of-1988)-1988 — Page 270

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CONFIDENTIAL

FM FCO

TO DESKBY 09010OZ HONG KONG

TELNO 657

OF 081515Z MARCH 88

MUD 301/1

ния

CONFIDENTIAL

19YOP COPY ODIST ?

1

167451 DHOAN 0405

DHO

1. IF YOU ARE CONSIDERING REQUIRING THE CENSOR TO TAKE INTO

ACCOUNT A PARTICULAR PROVISION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, YOU SHOULD BEAR IN MIND THE FOLLOW-

ING:-

2.

A)

THE QUESTION WHETHER HE HAS CORRECTLY APPLIED HIMSELF TO THE ISSUE IN THE LIGHT OF THE COVENANT WILL BECOME JUSTICIABLE AND THE COURTS MAY, ON A JUDICIAL REVIEW,

ADDRESS THAT SAME QUESTION:

B) IT WOULD PROBABLY BE DIFFICULT TO CONFINE THE OBLIGA-

TION TO TAKE INTO ACCOUNT THE RELEVANT ARTICLE OF THE ICCPR TO CLAUSE 10(2)(C), OF THE BILL SO THAT YOU WOULD HAVE A POTENTIALLY JUSTICIABLE ISSUE IN RELATION TO ANY ADVERSE DECISION OF THE CENSOR UNDER CLAUSE 10:

C) ONCE YOU INTRODUCE THIS CONSIDERATION IN RELATION TO

ONE PARTICULAR TOPIC, (E.G. FILM CENSORSHIP) IT WOULD BE

CITED AS A PRECEDENT IN RELATION TO DISCRETIONARY OR OTHER

POWERS IN RESPECT OF OTHER TOPICS WHICH ARE THE SUBJECT OF

SUBSTANTIVE ARTICLES IN THE COVENANTS.

YOU WILL ALSO APPRECIATE THAT A MORE USUAL WAY OF MAKING PROVISION FOR MATTERS OF FUNDAMENTAL RIGHTS IN DOMESTIC LEGISLATION IS TO SET OUT THE RIGHTS IN A LAW AND NOT TO APPLY THEM BY REFERENCE TO AN INTERNATIONAL CONVENTION. PURELY PRACTICAL REASONS FOR THIS APPROACH ARE THAT THE RIGHTS CAN BE STATED IN THE KIND OF LANGUAGE USED IN THE JURISDICTION CONCERNED AND IT AVOIDS THE POSSIBILITY OF AN UNEDIFYING DISPUTE BETWEEN THE LEGISLATURE, AND THE JUDICIARY WHEN THE LATTER TEST A PARTICULAR PROVISION, OR INDEED A DECISION UNDER A PARTICULAR PROVISION AGAINST AN OUTSIDE NORM.

3=

IT IS ALSO FOR CONSIDERATION THAT IF THE COURTS GET IT QUOTE WRONG UNQUOTE, IT MAY BE MORE DIFFICULT FOR THE LEGISLATURE TO PUT THE MATTER QUOTE RIGHT UNQUOTE IF THE POINT AT ISSUE IS AN INTERPRETATION OF AN INTERNATIONAL CONVENTION. 4. THE WEIGHT TO BE ATTRIBUTED TO THESE CONSIDERATIONS MAY VARY DEPENDING UPON THE PARTICULAR DRAFTING YOU MAY HAVE IN MIND AND IT IS DIFFICULT FOR US TO GIVE A MORE PRECISE ANSWER TO YOUR QUESTION AS IT RELATES TO ARTICLE 19 (WHICH WE ASSUME IS MEANT, NOT ARTICLE

16) OF THE ICCPR IN THE ABSTRACT.

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