Arbiters of decency must be representative

PUBLISHED : Saturday, 04 October, 2008, 12:00am
UPDATED : Saturday, 04 October, 2008, 12:00am

How we determine what constitutes public indecency or obscenity should reflect the prevailing views of society while not unduly restricting freedom of expression. Recent events that outraged people's sense of decency showed the need to review Hong Kong's system. The government yesterday put forward a range of options which deserve consideration and debate. But the best way forward is to improve the system which we already have rather than replace it.

The challenge, as the government's consultation document stresses, is to strike the right balance between consistency and flexibility. The notion of prevailing views, or community standards, is a fluid one. People not only have different moral values, but their values evolve. Nonetheless some acts may be regarded as so offensive that they can reasonably be expected to shock people's sense of decency. This defines a shared belief about what constitutes public decency that may be deemed a community standard. The case in point earlier this year involved two magazines that published explicit photos, with sensitive body parts blacked out, of several pop stars engaged in private consensual sex acts. In an interim decision, the Obscene Articles Tribunal ruled that the publications were neither indecent nor obscene. Later, it overturned that decision on appeal, ruling that they were, indeed, indecent. The case highlighted flaws in the way the tribunal operates. Problems had already been apparent, due to earlier dubious decisions.

Major changes canvassed among the government's options include an independent board to classify material, with the tribunal to hear appeals against its decisions. There is, however, no need to set up a new public body. Another alternative suggested is to leave decisions to the courts. But this would place too heavy a burden on the judiciary.

Improving the existing system is the best policy. There is a need to have a higher number of adjudicators in classification hearings. Though the pool of adjudicators has increased to about 300, there are still too few of them being called at hearings. For an interim classification, a magistrate needs to convene only two adjudicators, and, in a full hearing, four. Such small numbers leave tribunal decisions open to inconsistency and the influence of individual biases. The government proposes increasing the number of adjudicators in each case to four and six respectively, which would be a step in the right direction.

Other suggestions worth considering are providing a clearer definition of indecency and obscenity, and changing the classifications altogether to make them better understood by the public. But the key to improving the system is to ensure that adjudicators are genuinely representative of our community. That is the way in which to deliver better, more consistent decisions.