Last year, as secretary for commerce, industry and technology, I was embroiled in the row over the interim classification by the Obscene Articles Tribunal that a number of articles in the monthly periodicals published by students at Chinese University should be regarded as indecent. Some Chinese media sympathetic to the students' objection against the decision criticised me for double standards when I refused to submit the Bible, the Koran and a number of literary works that allegedly contained indecent material to the tribunal for classification. This was one of the incidents that led to the current public consultation on the review of the Control of Obscene and Indecent Articles Ordinance.
Shortly after the government issued the consultation paper, the High Court quashed the tribunal's decision and chastised it for adopting a 'lax approach' in arriving at the classification. 'There is no room for arbitrariness and slackness,' Mr Justice Johnson Lam Man-hon said in his judgment.
Nevertheless, the judgment noted that the tribunal 'functions as the protector of public interest in the preservation of public moral and prevention of dissemination of indecent materials to juveniles and the dissemination of obscene materials in general'.
Clearly, the tribunal needs more resources to be able to function more efficiently. The government should do this before the outcome of the consultation is known. It should also review the body's composition and operation, to restore public trust and confidence.
The tribunal is a judicial body, which comprises a presiding magistrate and two members of the public appointed by the chief justice to serve as adjudicators. Currently there is a pool of some 300 adjudicators. Upon receipt of an article, the presiding magistrate and two adjudicators conduct a private hearing and give an interim classification. If this is challenged, there is a full public hearing, conducted by the presiding magistrate in charge of the interim classification and four or more adjudicators who were not previously involved in the case. The arrangement is based on the premise that the adjudicators represent 'the standards of morality, decency and propriety that are generally accepted by reasonable members of the community'.
The major flaw is that the existing pool of adjudicators is mainly based on the recommendations of the Television and Entertainment Licensing Authority and the Home Affairs Bureau. It is difficult to convince the public that the 300-odd adjudicators represent the community at large. In the consultation paper, the government has made a sensible suggestion to draw adjudicators from the list of jurors (currently about 570,000) and to increase the number from two to four in the first hearing and from four to six at the full hearing.
However, the operation of the first hearing should also be reviewed in the light of the High Court decision. While Section 14 of the Control of Obscene and Indecent Articles Ordinance says the tribunal is not required to give any reasons for its interim classification, the High Court judgment said it was necessary. Thus, it may be appropriate to amend the ordinance.
As full hearings are automatically granted on request, another alternative is to do away with the first hearing.
Another concern that has not been properly addressed in the consultation paper is the government's criteria for deciding whether an article should be submitted for classification. For example, no religious and literary works that have been circulated and accepted by the community for many years should be put forward, even if some people hold a different view. Another criterion is to refer to past decisions.
Consulting the public on the detailed criteria is important to demonstrate that the government has no hidden agenda. It is also a way to build a consensus on what constitutes an unacceptable standard of obscenity and indecency. I believe the government can do this in the second round of public consultation. The proposed criteria should contain, where appropriate, specific examples and past decisions. They should be amended to take account of public comments. The final version should then be open for public inspection and reviewed regularly to reflect changing public morals.
This will ensure the public takes ownership of the criteria that the government uses to enforce the law.
All civilised societies control obscene and indecent articles to reflect standards of public decency and prevent their dissemination to children. The key in the current consultation exercise is to improve the present control system and restore public trust and confidence.
Joseph Wong Wing-ping, formerly secretary for the civil service, is an adjunct professor at Chinese University of Hong Kong