July, 2007

The Chinese University Student Press Incident

Cho Man-kit

(The author is a member of Nutong Xueshe whose web site is www.leslovestudy.com.)

Moral panic was fiercely provoked and stayed on the front page of Hong Kong's newspapers in May. Two students at an evangel seminary submitted a complaint about the Chinese University Student Press to local newspapers, charging them of publishing sexually obscene narratives and a sexually provoking questionnaire in the February and March 2007 issues. The questionnaire in the February issue was a reader's survey of the new erotic/sexuality page since its launch in the December 2006 issue, which was one of the innovative elements added to the student publication to break sexual taboos and foster an open and honest discussion about sexuality.

One section of the questionnaire listed 10 open-ended questions probing readers to rethink their experiences and fantasies. The two probing questions deemed sexually obscene asked whether the reader had ever thought of having sex with their parents and/or siblings and with what animals they would most like to have sex. On May 7, two local newspapers gave extensive coverage to the complaints and immediately framed the incident as a promotion of incest and bestiality.

In reaction to the controversy, the Chinese University of Hong Kong (CUHK) formed a committee to look into possible disciplinary action against the present and previous editorial groups of the student publication. The present and former editors were called to defend their stance on May 10 before the disciplinary committee. The Student Press requested that the committee allow the entire current and ex-editorial groups to attend the meeting, but their request was denied. Later, in the absence of the student publication's representative, the disciplinary committee ruled on the same day in an unusually speedy process that the Student Press damaged the university's reputation by publishing vulgar and indecent articles. Each of the current and ex-editorial group members received a warning letter and were told that they would be subject to further disciplinary action. The committee also ordered the Student Press not to distribute any vulgar and indecent articles on campus.

At the same time, several gay and lesbian groups, academics, student societies of various disciplines, women's groups and sex worker's organisations launched an international petition calling for the preservation of freedom of expression. Meanwhile, Christian fundamentalists, led by the Society for Truth and Light, advanced its own sex-negative agenda, deliberately victimising the Student Press by claiming it was being brainwashed by the sexual liberation movement.

Upon receiving complaints, the Television and Entertainment Licensing Authority (TELA) transferred the February, March and April 2007 issues of the student publication to the Obscene Articles Tribunal (OAT) for classification. The February and March issues were later classified as Category II indecent articles in the interim classification on May 15. Complaints were also made against Ming Pao, which quoted part of the questionnaire in its May 13 newspaper supplement. What Ming Pao intended was to illustrate how people from different walks of life would respond to the questionnaire and to delineate a historical context for the local university student publication. However, the May 13 Ming Pao news supplement was found guilty of distributing Category II indecent materials by the tribunal on May 23. Both the Student Press and Ming Pao requested a full hearing to review the tribunal's decision.

Under the present legal system, OAT is conferred the special jurisdiction of classifying material transferred to it by TELA upon receiving a complaint or a voluntarily submission by an author or publisher who questions the category into which their articles fall. The classification is based on the standard of the views of a reasonable person in which two people are randomly drawn from a pool of approximately 300 adjudicators. Together with a magistrate, the two adjudicators will make an interim classification of the article into either Category I (non-indecent, non-obscene), Category II (indecent) or Category III (obscene). Articles that fall into Category II or III are subject to legal restrictions. Category II articles are considered unsuitable for people under the age of 18 and are legally required to be wrapped in a plastic bag with a warning sign attached to it while those in Category III are prohibited from publication and any other form of distribution. The proprietor, author or publisher can apply for a full hearing to review the interim classification. Otherwise, the classification is final.

The standard of a reasonable person-sometimes referred to as community standards-has been criticised for being arbitrary and subjective. Moreover, the interim classification is a closed-door decision. In addition, OAT bears no legal obligation to disclose the rationale for its decision nor its reasoning in judging how the exception clauses are not applicable to the article in question. Heavily relying on a small number of adjudicators' personal perceptions to represent the always conflicting and diverse standards of morality, the OAT system runs the risk of becoming a breeding ground for prejudices held by the majority against minority groups and, worse still, conferring legitimacy and legal support to them.

To expose the arbitrary and subjective nature of the OAT system, a group of internet surfers initiated a complaint to TELA against the Bible, listing scriptures with sexually explicit descriptions of incest and bloody scenes. The irony they made is that the description of sex itself should not be an indicator of indecency and obscenity; rather, the textual context in which it is placed requires serious consideration. However, neither TELA nor OAT complies with the law to examine the context in which the description of sex is placed. They simply take any description of sex and representation of sexual organs as indecency. Irrespective of more than 2,000 complaints, TELA declined to transfer the Bible to OAT for classification on May 18. It explained that the Bible is a religious and ancient book. Being part of human civilisation, it contains no scripture violating commonly held moral standards. TELA's double standards has seriously called its fairness into question. The Office of the Ombudsman has now begun an investigation of TELA.

In the full hearing on July 6, the legal representative of the Student Press challenged the constitutionality of the OAT system for its lack of transparency that runs counter to the rule of law enshrined in the Basic Law. OAT admitted that the constitutional challenge falls outside the purview of the tribunal and ordered the case to be postponed indefinitely until the High Court provides further instructions. The Student Press is now seeking a judicial review of the constitutionality of OAT's decision and whether CUHK's disciplinary action is in compliance with stipulated procedures.