Urgent Business: Hong Kong, Freedom of Expression and 1997
Although the government agreed in August 1992 to undertake a separate review of laws concerning freedom of expression, its attitude towards ensuring the compatibility of legislation with the Bill of Rights has been - and generally continues to be - little short of irresponsible. Secretary for Constitutional Affairs Michael Sze told the Legislative Council in February 1992 that the government had concluded that "while certain provisions of the law could be at risk of being found to be incompatible with the Bill of Rights, ultimately this was a matter which could only be decided one way or another by the courts".27 With the exception of six controversial laws which have been amended and which the government claims are now brought in line with the Bill of Rights,28 the administration effectively abandoned its initial contention that it would conduct a thorough review of existing legislation to ensure consistency with the Bill of Rights.
The government has taken the view that it will "deal with cases of possible or determined incompatibility with the Bill of Rights as and when they arise", whether as a result of decisions in the courts or due to its own internal review process," a process that is on-going and quite separate from any systematic review focusing on the Bill of Rights.
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This retraction has been part of a gradual retreat from early promises of a thorough review, made at the announcement of the new Ordinance in 1989. According to sources in the Legal Department, a confidential internal review conducted soon after the announcement of a proposed Bill of Rights identified a long list of laws initially considered to have provisions that may be inconsistent with the ICCPR, including a number of laws that might contravene Article 19. Among these, the sources say, were long-controversial provisions of the Television and the Film Censorship ordinances, which in many respects have come to symbolize controls and restrictions on freedom of expression.30
In late 1990, the government's Legal Department made a further preliminary review available to the Legislative Council's working group on the Bill of Rights. This identified 20 laws as being potentially inconsistent with the Ordinance, among them nine laws that had been identified to the administration by the HKJA as having provisions that may be incompatible with, or threatening to, the right to freedom of expression. Only five of these nine,
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Reply to a question by Simon Ip Sik-on in the Legislative Council on 19 Feb. 1992.
The six laws were: the Immigration, Securities, Crimes, Prevention of Bribery, Independent Commission Against Corruption, and Police Force Ordinances. These laws were "frozen" from challenge under the Bill of Rights for one year from its enactment.
29 Reply to a question by Simon Ip Sik-on, supra note 27.
30 See Chapter 4.
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These nine laws, according to reliable sources, were: the Official Secrets Act, and the Emergency Regulations, Crimes, Police Force, Summary Offences, Television, Telecommunication, Places of Public Entertainment, and Prevention of Bribery ordinances.
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