Stephen Thomson: Hong Kong’s Obscene Articles Tribunal: The Tip of the Separation of Powers Iceberg

The Obscene Articles Tribunal (OAT) in Hong Kong performs the administrative function of classifying articles and matter as obscene or indecent.  This is in addition to a judicial determination function on the obscenity or indecency of articles or matter referred by a court or magistrate in the course of proceedings.  The OAT’s powers are regulated by the Control of Obscene and Indecent Articles Ordinance (cap.390).

However, there is an aspect of the OAT that is extraordinary:  it is administered by the Judiciary.  Despite performing an administrative function, the OAT is not placed alongside the many administrative tribunals in Hong Kong which are administered by the executive.  The Judiciary has made it clear that it is dissatisfied with this arrangement, being “firmly and strongly of the view that the existing set-up of the OAT is not acceptable and the administrative classification function must be removed from the Judiciary”.  The Hong Kong Bar Association agreed, describing the arrangement as “highly unsatisfactory” and noting that the “co-existence of a judicial jurisdiction to determine the nature of an article in connection with extant legal proceedings with an administrative function to classify submitted articles is detrimental to the independence of the tribunal as a judicial body”.  The function, it added, should be removed or abolished.  The Law Society of Hong Kong agreed that the administrative classification functions of the OAT should be removed from the Judiciary (see the relevant Legislative Council paper).

These views were expressed well over five years ago, and following public consultations, the HKSAR Government announced in February 2015 that the Ordinance would be amended to abolish the OAT’s administrative classification function.  To date no legislation has been brought forward to reform the OAT, and the pace of the consultations and proposed reforms does not suggest any sense of urgency on the part of the HKSAR Government to reform the system.  Sadly, the case of the OAT is only the tip of the iceberg in terms of the Administration’s apparent indifference to the separation of powers within the tribunal system.

As I recently wrote elsewhere, the tribunal system in Hong Kong is, after years without reform, lacking in the kinds of safeguards introduced by the Franks and Leggatt reforms in the UK.  Whereas the OAT performs an administrative function yet is administered by the Judiciary, a much greater number of tribunals performing judicial or quasi-judicial functions are administered by the executive.  They are, to cite the Franks dichotomy, part of the machinery for adjudication rather than the machinery of administration.  However, the administrative tribunals are administered as though they are simply an extension of the executive, an appendage of government departments.  Most tribunal appointments are made by the Chief Executive, the remainder being made by government officials directly accountable to, and capable of removal by, the Chief Executive.  Tribunal vacancies tend not to be publicly advertised, and the statutory criteria for appointment are often little more specific than a power in the appointer to “appoint such persons as s/he thinks suitable” (see, for example, section 6(2) of the Administrative Appeals Board Ordinance (cap.442)).  The remuneration of tribunal members is often determined by the appointing authority, and members are typically appointed on short (re)appointment cycles with no provision for automatic reappointment, disincentivising anything other than loyalty to the executive.

The concerns spill beyond issues of composition.  There is no general requirement for tribunals to provide reasons for their decisions.  Few tribunals make their decisions freely available; some that do publish decisions do so selectively.  There are some troubling anomalies, such as the right of the respondent (the Director of Environmental Protection or the Secretary for the Environment) to refer a decision of the Water Pollution Control Appeal Board to the Chief Executive-in-Council, with no corresponding right vested in the appellant.  A decision of the Appeal Board (Education) may be appealed to the Chief Executive-in-Council, though the Chief Executive appoints the entire membership of the Appeal Board (Education) without statutory limitation on the period of appointment.  There is no general oversight of the tribunal system, such as the role previously served by the Administrative Justice and Tribunals Council in the UK.  The system fails to meet a number of core standards that were set out as long ago as the Franks recommendations of the late 1950s.

The apparent apathy of the HKSAR Government in these issues is seemingly a continuation of a similar disinterest shown by the pre-Handover colonial administrations.  The Law Reform Commission of Hong Kong has published no reports on administrative justice since its establishment in 1980, no major legislative initiative has been undertaken to reform the tribunal system, and the subject has largely evaded critical scholarly comment.  The reason for this general indifference is a matter of speculation, but with such recent controversies as oath-taking in the Legislative Council and the resultant interpretation by the Standing Committee of the National People’s Congress, the method of (s)electing the Chief Executive and calls for independence for Hong Kong dominating the local public law scene, perhaps administrative tribunals compare unfavourably in terms of exigency and theatricality, insufficient to capture media or public interest, or that of local commentators and policymakers.  The lack of attention being given to the tribunal system is regrettable, however, as this is an area in which calls for reform are, comparatively, more likely to be answered.  A robust and effective tribunal system can enhance administrative justice, procedural fairness and the rule of law.  It may not be a substitute for addressing the other legal, constitutional and political challenges that persist in Hong Kong, but it can make a significant contribution to strengthening the position of the individual within and against the state.  The potential of its contribution is even greater in a jurisdiction such as Hong Kong where avenues for political accountability are on a palpably inferior footing, and where public trust in the executive is modest.  At present, the pressure on the HKSAR Government is apparently insufficient to invite a serious legislative proposal to reform the tribunal system; indeed, to test its commitment to the separation of powers.  The case of the OAT is just the tip of the separation of powers iceberg:  beneath the surface is a whole tribunal system where reform is long overdue, and that is to say nothing of separation of powers concerns in the broader legal and constitutional order.

Stephen Thomson is an Assistant Professor at The Chinese University of Hong Kong.  His work on administrative law appears in such journals as Public Law, Civil Justice Quarterly, Melbourne University Law Review and the University of Pennsylvania Journal of International Law.  His forthcoming book, ‘Administrative Law in Hong Kong’, will be published by Cambridge University Press in 2018.



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