When is a court not a court? When it's a tribunal
HERE is a riddle you will not find in your Christmas cracker. Is the Obscene Articles Tribunal (OAT) a court? Now you may suppose the answer is obvious. In the first place, the tribunal is run by the Judiciary Department, which is also responsible for a number of bodies that are clearly courts, like the magistracies and the High Court.
But this is an administrative argument, not a legal one. After all, the Judiciary is responsible for the Labour Tribunal, which does not seem to consider itself a court. Also, there are some very court-like bodies which the department is not responsible for, like those considering appeals over taxes, lift safety and such matters.
In the second place, you may think, there is the matter of terminology. It is called a tribunal, and is described in its ordinance as having jurisdiction.
This is a good point, but surely not a sufficient one. If the Government changed the name of the Legislative Council Finance Committee to the Finance Tribunal, and adjusted the other terminology accordingly, that would not make the committee a court. You would still wish to look at what the committee does.
Now what the tribunal does is quite simple. It classifies items submitted to it (it has no right to take the initiative in the matter) in one of three categories: indecent, obscene or neither.
This looks more like egg-grading than what we usually understand as jurisdiction. The tribunal does not decide guilt or innocence, assign responsibility or levy punishments. It does not make orders or award damages. It does, in fact, pretty much what the Film Censorship Authority does for films. And nobody has ever suggested the film censor is a court.
Come to that, nobody has ever suggested the Broadcasting Authority is a court, although the authority receives complaints, decides whether they are justified, and levies fines on errant broadcasters.
This may look like a question of purely academic interest, or a purely verbal dispute like the question of whether what takes place in the Real Estate functional constituency should really be described as an election.
But whether the tribunal is a court is a matter that has practical consequences, particularly if you wish to criticise it.
In the recent case involving the Oriental Daily News it seemed to have been accepted without question by both sides that the tribunal was a court. It was clearly further supposed by the judges presiding that contempt of the tribunal would be indistinguishable from contempt of a High Court judge.
The offending articles are grouped into five categories, in three of which the attack is said to be on judges 'and members of the OAT'. Now I would have thought that if the tribunal were not a court then it would not be possible to be in contempt of it. This may be the sort of error to which lay groupies hanging around courtrooms are prone, but it seems odd that the point was not even considered.
Of course you may think that whether the tribunal is a court is a highly technical matter best left alone by mere wordsmiths like me, and there may be something in this. In fact, I would have agreed with you until I came across a curious passage in the judgment of the Court of Final Appeal in another case involving the tribunal (and, as it happens, the Oriental Daily).
In the course of his summing up Chief Justice Andrew Li Kwok-nang gave a brief account of the powers and functions of the tribunal, including the observation that 'the same privileges and immunities as those in court proceedings apply to the tribunal', and in the same paragraph that the tribunal 'has similar powers to those of a court'.
It appears then that in the Chief Justice's view the proceedings are not court proceedings and the tribunal is not a court. Whether in that case the tribunal has any place under the protection of the old offence of 'scandalising the court' is a matter which I suppose he may have to consider in the near future.
In the meantime tribunal folk who wish to look more courtlike might consider holding all their proceedings in public.