JUDGE Sinclair's ruling that the ICAC's 'press-gag' clause, Section 30 of the Prevention of Bribery Ordinance contravenes the Bill of Rights has been hailed as a victory for the media. It is more than that. It is a victory for all those who treasure the freedom of expression Hong Kong people enjoy as a right in other fields and offers additional hope for the continuation of that freedom promised in the Basic Law. The law, as it has stood until now, makes it illegal to expose, discuss or mention an Independent Commission Against Corruption (ICAC) investigation prior to an arrest. That has long been seen as one of the territory's least defensible curbs on media freedom. The right to prosecute for infringing Section 30 has been among the most jealously guarded and zealously enforced in the Government's dwindling armoury of repressive powers. Yet the first time it has been tested in the Courts since the introduction of the Bill of Rights, it has failed. The case against the Ming Pao and three of its editorial staff who were prosecuted for revealing an investigation into the alleged rigging of a government land auction has had to be dropped. The ICAC is entitled to appeal and is unlikely to give up the press-gag without a fight. It is convinced the provision is necessary to prevent early exposure jeopardising its investigations. But Judge Sinclair's decision is the right one. The police enjoy no such protection from exposure, even on sophisticated commercial crimes. Yet they manage to investigate and bring prosecutions without it. The ICAC argues that corruption presents special difficulties and special powers are needed to cope with them. There is some justice in the argument that society's fear of a renewed surge of corruption is itself a reason for tougher powers. As business contact with the mainland increases and mainland habits become more accepted in Hong Kong itself, failure to react with sufficient force could be dangerous. However, it is hard to draw a meaningful moral distinction between corruption and other forms of crime. Suppression of all freedom to publish or discuss a particular type of crime until arrests are made is justified neither by the special nature of the crime nor the investigative process by which it must be uncovered. There may be room, in individual cases, for a magistrate to grant an injunction preventing publication, but there must be no blanket bans. The ICAC has become used to operating in secrecy. However, at a time when the public is justly concerned that official secrecy may become an end in itself, the right of the media to probe and investigate is one of the few remaining assurances of continued open and accountable government.
