Ruling highlights flaws in system
Radio and television stations are inherently political entities, even when they are operated solely on commercial principles. In countries with authoritarian governments, they are tightly controlled. But in free societies, people should have a fair opportunity to use the airwaves to broadcast their views.
To achieve this, it is necessary to have a transparent licensing system. Ideally, an independent authority should make such licensing decisions, based on clearly spelled-out criteria. The government should not be the final arbiter of who is allowed to broadcast on the radio. The current licensing system in Hong Kong falls short of such standards, a point highlighted by Magistrate Douglas Yau Tak-hong in his ruling yesterday, finding the existing arrangements to be unconstitutional. The decision does not set a binding legal precedent. And whether or not the magistrate is right about the law will now be determined by the higher courts, as the government intends to appeal. But his reasoning raises fundamental questions about our licensing system that require close examination.
The decision to prosecute lawmaker 'Long Hair' Leung Kwok-hung and several of his associates for allegedly breaching broadcasting laws was the correct one. They had repeatedly broadcast without a licence, which, on the face of it at least, amounted to flouting the law. The case provided the courts with an opportunity to test their argument that the licensing system breaches their right to free expression. Yesterday, the magistrate ruled in their favour. The system rightly aims to ensure that radio frequencies are parcelled out to specific operators who must abide by rules devised to ensure they act in the public interest. But Mr Yau pointed out flaws in the process. He expressed concern about the almost unfettered power of the Chief Executive in Council to grant or refuse broadcasting licences and found the system unconstitutional because it imposes an improper restriction on the freedom of expression.
There is clearly an argument that the current licensing regime is outdated and in need of improvement. Under it, the Television and Entertainment Licensing Authority provides guidelines to applicants on what information they should provide. But these requirements are not laid down by law. Both the Broadcasting Authority and the chief executive can exercise wide discretion in every step of the application process. An applicant has no way of predicting the outcome. This, according to the magistrate, contravenes the principle of 'legal certainty' whereby restrictions placed on freedom of expression or speech must be clearly spelled out. Also, the chief executive's decision is final and there is no appeal.
Mr Leung and his co-defendants are well known for their anti-government stance. The decision to reject their application may or may not have been correct, but it should be based on - and be seen to be based on - open, transparent and predictable rules. Otherwise, there is the risk of a perception in such cases that the applicants' political views are a factor in the decision. There is also a technological issue. The two dominant radio stations now take up wide spectrums on the FM frequencies. But with digital broadcasting, a single frequency can transmit several channels. Clearly more frequencies can be freed up.
The higher courts will now have a chance to clarify the law. But the magistrate's ruling highlights the need to consider revamping the application process.