Moral guardian getting a makeover

PUBLISHED : Sunday, 09 May, 2010, 12:00am
UPDATED : Sunday, 09 May, 2010, 12:00am

The judiciary is shaking up the much criticised Obscene Articles Tribunal - which once ruled a picture of Michelangelo's David unsuitable for young Hong Kong eyes - by almost doubling its pool of adjudicators and capping their service at nine years.

Some adjudicators have been on the panel for more than 20 years.

However, a legal scholar says the measures will not, by themselves, solve fundamental problems with the system for vetting publications and exhibitions, which has been severely criticised in recent years for insufficient representation of adjudicators and their inconsistent rulings.

Since it was set up in 1987 the tribunal has had sole legal authority to decide what should or should not be allowed under the obscenity law. The law does not define what constitutes obscenity or indecency, leaving it to the tribunal to interpret 'the generally accepted standard of morality in the community'.

The tribunal can restrict viewing of an item by rating it Class II, meaning it is indecent and available to adults only, or ban it by rating it Class III (obscene).

Two to four adjudicators are randomly drawn from a pool of 270 to make decisions under the guidance of a presiding judge on articles submitted by the courts, law enforcement agencies and publishers.

The judiciary will gradually expand the pool of adjudicators to 500, and aims to appoint 100 new members in the next eight months.

The changes come amid a government review of the Control of Obscene and Indecent Articles Ordinance, launched in 2008 with reform of the tribunal among its priorities. The review team, led by Undersecretary for Commerce and Economic Development Greg So Kam-leung, was to have launched a second public consultation by the end of last year but has not yet done so.

The judiciary, which has been highly critical of the appointment system for adjudicators and the tribunal's combined administrative and judicial role, said the measures were introduced to 'address some immediate operational issues'.

University of Hong Kong law professor Eric Cheung Tat-ming said the changes were 'of the right spirit for a more representative tribunal'.

Still, he said: 'The old problems remain. Without proper criteria for the appointments, the judiciary cannot ensure the panel represents a wide spectrum of residents.'

More than a quarter of the adjudicators have served 11 years or more; five have served more than 21 years. The rest have been appointed since 2004. Only eight adjudicators are under 30 and just 41 are in their thirties. Of the rest, 110 are in their forties, 84 in their fifties and 20 in their sixties; seven are older still.

An overwhelming majority - 72 per cent - are men.

Adjudicators are appointed by the chief justice. Anyone who has lived in Hong Kong for seven years and is proficient in written Chinese and English may apply to become one.

The judiciary made its dissatisfaction with the system clear when the government began its review of the obscenity law 18 months ago.

In a submission to the review team, it said the present system of adjudicators was highly problematic and the tribunal's execution of its administrative and judicial functions highly unsatisfactory.

Most people become adjudicators by invitation or because they put themselves forward.

'While the ordinance sets out the eligibility criteria for adjudicators, it does not provide [for] how these persons can be identified and under what circumstances a particular nomination should be approved or rejected,' the paper read. 'The Chief Justice is in no position to operate a satisfactory appointment system under the existing framework.'

The judiciary suggested replacing the adjudicator system with a jury system, noting that 'minor improvements to the appointment system would not solve the fundamental problems'.

Veteran adjudicator Wilson Yip Hing-kwok, who has served since 1991, said the tribunal was performing soundly and handled tens of thousands of cases a year.

'When you take the annual case load into account, you will know those controversial cases that hit the headlines comprise only a tiny proportion of the total number,' said Yip, a Kwun Tong district councillor.

He said the adjudicators were not supposed to make judgments according to their own personal background but to consider society's average moral standards.

He also rejected the idea of a jury system, which he said could make the problem worse.

'A jury system may be more representative, but it could also result in more inconsistent rulings that will create confusion and controversies,' he said.

Fellow adjudicator Athena Kung Ching-yee, a barrister who was appointed in 1995, said it took time to get a picture of the community's average moral standards. She said the panel should also include adjudicators from different age groups.

'The standards of morality can change from time to time. The government should help new members understand the views of different parties so they can consider [the issues] more comprehensively when making rulings,' she said.

But Cheung, the University of Hong Kong law professor, said it was not in society's interest for adjudicators to serve too long. A limit on their terms could increase their turnover.

He said it would take new legislation to bring about significant improvements but that, in the meantime, the judiciary could make the workings of the tribunal more transparent by allowing easier public access to the reasons behind its rulings.

Civic Party lawmaker Ronny Tong Ka-wah, a senior counsel, said an overhaul of the system was inevitable.

He said nine years was still too long a term for adjudicators and that expanding the pool would not bring the tribunal's standards more into line with those of the community.

'There are so many examples of its failure in our rapidly changing society,' he said.