Jake's View

It may be right decision, but a step too far for judiciary

PUBLISHED : Sunday, 26 April, 2015, 2:17am
UPDATED : Monday, 16 November, 2015, 4:46pm

In a written judgment, Mr Justice Thomas Au Hing-cheung ruled that when the government rejected HKTV's application, it failed to follow a 1998 pro-competition policy stipulating there should be no limit to the number of free television licences.

SCMP, April 25

I was as taken aback as most observers when the executive council refused to give a free-to-air licence to Hong Kong Television Network in late 2013.

It struck me as directly contrary to the stand the government had taken of encouraging wider participation in the industry, particularly as the Communications Authority had recommended the licence. Dark thoughts of personal vendettas in Exco and secret instructions from Beijing came readily to mind.

I thought the judge handling the judicial review would probably take the same view (minus the dark thoughts). But what surprised me is that he thought it sufficient grounds to quash the Exco decision.

Let me concede immediately that I am no lawyer, nor have had any legal training, and when it comes down to the fine details of what shades of meaning we can apply to the HKTV case from the precedent of Wong Wei Man vs. the Amusement Games Centers Appeal Board, I have nothing to say.

Equally, however, I do not accept that all judicial matters are matters for judges and lawyers alone. That would be like saying only developers can comment on property matters. There are times when the self-interest of the judiciary is at odds with the interests of the general public.

What concerns me is the old problem of judge-made law, of a judiciary trying to assume authority that rightfully belongs to legislators.

Since when is a policy a law? When did the law draftsman compose the exact terms under which competition in television would be encouraged? What penalties were cited for breach of encouragement? When was this adopted by the Legislative Council as the law of Hong Kong? When was it gazetted?

Policies are mighty woolly things. They tend to be the children of convenience in government, easily adopted when political advantage offers itself, easily disowned when embarrassment threatens, and rarely thought out in detail. They are general statements of intent, as changeable as the politicians who make them.

To subject policies to close interpretation by the courts is to give the courts authority beyond anything envisaged for them in the Basic Law. Judges might like this. It certainly enhances their stature in society. But I think society should be very much on guard against letting the judiciary get away with it.

In this case the relevant ordinance gives the chief executive absolute discretion to decide who will get a licence and who will not and he does not have to reveal his reasons.

I agree with most people in thinking it as plain as day that what he did was directly contrary to government policy. I also think it cowardly of him not to explain why he did it. I have little time for the fellow and this case is one of the reasons why.

But policy is blah-blah and law is law and I don't believe it wise of our courts to confuse the two. Much as I think the fairest outcome would be to give HKTV its licence, I think it is more important the judiciary be kept to its side of the fence.

And I simply cannot understand the ancillary argument that HKTV had a legitimate expectation of getting its licence because the Communications Authority was in favour of it. The final authority is the chief executive, not one of his appointed panels, and if the people at HKTV did not know this, they should have read the Broadcasting Ordinance.

So, yes, hurrah for HKTV. The Beijing weasels who slither furtively in the dark around the chief executive's desk were slapped away. Yes, I like it. But it's a sad day for the division of powers in Hong Kong.