A serving of justice

PUBLISHED : Wednesday, 04 February, 2009, 12:00am
UPDATED : Wednesday, 04 February, 2009, 12:00am

Tension between the judiciary and the administration in Hong Kong has been brewing for years, apparently with very few people being aware of it. Chief Justice Andrew Li Kwok-nang hinted at it in his address at the opening of the legal year on January 12, when he said the judiciary had submitted a response to the review of the Control of Obscene and Indecent Articles Ordinance.

It is unprecedented for one branch of the government - the judiciary - to respond to a public consultation being held by another branch, the executive, over an ordinance that was approved by the third branch, the legislature.

The judiciary has obviously been unhappy with the ordinance - and with the administration - for a very long time.

The chief justice made his unhappiness clear by declaring that 'such a review is long overdue'. He also announced that the judiciary's response would be made public.

Upon perusing the submission, it became clear that the judiciary had very strong feelings about the ordinance, in particular, on the workings of the Obscene Articles Tribunal.

In the very first paragraph of its response, the judiciary disclosed that it had proposed such a review, 'particularly on the operation of the Obscene Articles Tribunal', as early as 1995 and as recently as last year. Apparently, both the colonial administration and the post-1997 government had not seen fit to act on the judiciary's advice.

It is evident that the ordinance, first adopted in 1987, should have been reviewed and amended years ago. It has made Hong Kong a laughing stock, with such decisions by the tribunal as ruling that photographs of Michelangelo's statue David were not suitable for public viewing.

More recently, it has apparently caused National Geographic magazine to put its Chinese-language edition inside a transparent plastic packet because the issue contained computer-generated images of a naked Neanderthal woman.

In his speech, the chief justice explained that, under the current statutory regime, the tribunal 'is required to perform two distinct functions, namely the classification function [to decide whether a submitted article is obscene, indecent or neither] which is administrative, and the determination function upon referral by a court or magistrate, which is judicial. Although subject to the same statutory guidance, the tribunal is, in effect, operating as two different bodies, administrative and judicial.'

Mr Justice Li said that the judiciary 'has long maintained with the administration' that 'this arrangement is inappropriate and unsatisfactory'. He suggested that the administrative classification function be removed from the tribunal and that a jury should replace the present system of adjudicators. The judiciary went out of its way to make public its differences with the administration, saying: 'The judiciary notes that, in the past, it has made essentially these proposals repeatedly to the administration.'

To be fair, it should be acknowledged that a consultation was conducted in 2000 but, at the time, because of 'diverse public views' the administration 'decided not to pursue the proposals set out in the review'. At that time, the administration proposed setting up a statutory Obscene Articles Classification Board but this was opposed by the Democratic Party as an encroachment on judicial power by the executive.

Now that it is clear the judiciary itself considers this function to be administrative rather than judicial - and something that it wants to be rid of - perhaps members of the Democratic Party will no longer block the setting up of a separate board to take care of the classification of submitted articles.

The judiciary's reasoning is sound. It should only perform judicial functions. And now that its position has been made public, it should be clear when the administration conducts its second round of consultation later this year, whether it has taken on board the judiciary's recommendations.

Frank Ching is a Hong Kong-based writer and commentator