ARTICLE 19 and The Hong Kong Journalists Association
that it is Section 27 itself, particularly subsection (2)(b), that requires urgent attention for reform. This provision more than amplifies the very general criteria for programme standards set out in Section 26(d) of the Television Ordinance, criteria which specify that the licensee should maintain a proper balance and a high quality in subject matter. With their emphasis on self-regulation, such guidelines should in themselves be more than sufficient for determining the content of any programme of a political or religious nature.
Section 29 of the Ordinance permits the Governor in Council to issue binding directives to the Broadcasting Authority on the standard of programmes, "including the content and balance of such programmes". As with other wide powers conferred on the Governor in Council by this Ordinance, this ambiguous provision wrests executive control from the Authority, a body set up by the government ironically with just such an executive, overseeing purpose. It seems only reasonable to assume, in the circumstances, that the government intended to retain an ability to override, or diminish, the powers of the Authority.
That said, the Broadcasting Authority's own powers of censorship are by no means limited and almost equally disturbing.22 Section 33(1) of the Television Ordinance requires that any licensee must submit to the Authority, on demand, any material intended for broadcasting, including any scripts. If the Authority believes, furthermore, under 33(2), that a programme intended to be aired may affect "the peace and good order of Hong Kong", it may demand that it be pre-recorded and submitted for approval before broadcast. By implication, the control of live broadcasting seems to be the target of this latter provision.
These substantial powers are further refined under Section 35(1) which says that the Authority, by written order, may also prohibit the broadcast of any programme, any part of any programme, or any class or kind of material. In the event the "peace or good order of Hong Kong is threatened", the Authority is further empowered by Section 35(2) to make a verbal prohibition, presumably in circumstances where a written order would not reach the licensee before a programme went on air. On a similar theme, Section 36 endorses the selective censorship of individuals by vesting the Authority with the power to prohibit the broadcast of material compiled, approved or selected by any person it chooses to name.
Taken together or separately, there can be little question that the potential for arbitrary censorship of the television media goes far beyond the permissible restrictions under Article 16 of the Bill of Rights. Though the powers given to the executive authorities under the Television Ordinance's have rarely been invoked, it is arguable that their very existence works as a deterrent to licensees, and has contributed to the subdued, if not suppressed, level of political expression which local television produces. The urgent need for reform, however, has failed so far to grip the administration. According to a confidential Legal Department report on the review of legislation, the Ordinance's "existing statutory scheme is generally consistent with the Bill of Rights". Only "minor changes to individual provisions are necessary", it
22
The Broadcasting Authority's "Functions and Powers" are set out in general form in the Broadcasting Authority Ordinance, Section 9.
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