Yesterday an extraordinary thing happened in Hong Kong. A young magistrate in the Eastern District Court, Douglas Yau Tak Hong, delivered a knockout judgement in favor of the upstart pirate radio station, Citizen’s Radio of Hong Kong. Judge Yau, in dismissing the case against activists Tsang Kin-sheng (“The Bull”), Leung Kwok-hung and several others, ruled that the current system of approving/rejecting applications for a broadcast license in Hong Kong is unconstitutional according to the Basic Law.
Yau’s argument is so clear, and the situation so self-evident, you wonder why it has taken more than 10 years for this matter to be addressed. As Yau observes in the text of his decision, Hong Kong’s chief executive has “unfettered and unchecked” power to control access to Hong Kong’s airwaves. He gets to appoint half the members of the board in charge of considering applications. What’s more, there’s no clear set of guidelines for would-be license applicants.
Is it any wonder that the airwaves of Hong Kong, a city of nearly 8 million people, are home to only three dihn toi? (The Cantonese phrase for “radio station” is a marvelous compound of two Chinese characters: electric and platform. 電台)
Like a lot of things in this city, Hong Kong’s broadcast law is an old British policy that dovetailed so well with the mainland Chinese government’s interests, that it has survived the handover from one colonial ruler to another almost intact.
The British administration didn’t want to cede control of Hong Kong’s electric platform. And neither does the current government. CE Donald Tsang has even launched a project to scrap what is arguably the last redoubt of independent broadcasting in Hong Kong, public radio station RTHK. Radio Television Hong Kong has its programming ups and downs–some of their stuff’s terrific (like the hilarious and outspoken Saturday Night Live clone, “ Headliner“, “Tauh tiuh san man”), and some of it is the kind brain-deadly public service stuff that you’ll see at 3am on a U.S. television station. But, as Hong Kong media goes, RTHK is the fairest and most independent player in the game, beholden to no tycoon’s whims, no politician’s special interests.
And that makes the Chinese central government nervous. On a trip to mainland China, I was astonished to discover that the website of Hong Kong’s only government-funded radio station is blocked by the Great Firewall.
The government wants to abolish RTHK and retool it into the government’s propaganda mouthpiece. They’ve already got a proposal floating around, and there’s probably not enough opposition in the Legislature to put the brakes on the plan.
Enter our brave young Magistrate Yau.
As the powers of governments and corporate interests all over the world meld into each other, the independent judiciary has become a front line in the fight for democracy, people power and human rights. It was the judiciary that stood up to Musharraf in Pakistan, and here in Hong Kong, maverick judges like Kemal Bokhary–and now, Mr. Yau–are using judicial authority as a check and balance against the hugely disproportionate, non-democratically elected powers of the HKSAR executive branch.
“The decision is both good and not good. We didn’t exactly win,” said Long Hair, as he showed me the text of the decision over dinner last night. He explained: the government’s lawyers freaked out after the ruling was handed down, and immediately asked for an adjournment, which the court then granted. The government argued that declaring Hong Kong’s broadcast laws unconstitutional opened the floodgates for anyone with a $500 transmitter to start up their own radio station, which would cause chaos on the airwaves. They needed time, they argued, to make an appeal.
So Judge Yau’s decision will not go on the books–yet. And meanwhile the case of HKSAR vs. Citizen’s Radio will slowly make its way up the court food chain.
Yeah, it’ll probably get diluted. But it doesn’t matter, because the decision has made a big noise and put the issues out on the table. (Hong Kong’s government prefers to spring things on the public–to push through “reforms” and changes when nobody’s paying attention.) Why shouldn’t Hong Kong–a city with 15 or 16 newspapers– have just as a wide a spectrum of voices on its electric platforms? (Especially now that digital broadcasting technology is about to eliminate the old argument that “there is no room” on the airwaves). And who should have the power to decide which voices are allowed to speak?
Two years ago, I followed some of the Citizen’s Radio guys on one of the missions that led to their arrest, and to this court case. They were planting an illegal transmitter on one of Hong Kong’s tallest peaks in the dead of a cold winter night. At midnight, in a howling wind, I watched these guys climb a tree to hang the cheap, matchbox-sized battery powered transmitter that would allow The Bull and his studio guests to broadcast a single program across a three mile radius.
As the scary shadows of wild boars rustled in the underbrush, all I could think was: these guys are crazy–how would this tangle of spaghetti wires and tin cans get them any closer to their dream of a Hong Kong with open airwaves? I admired their pluck, and their courageous civil disobedience but I figured these guys were tilting at windmills, Hong Kong’s Don Quixote and Sancho Panza.
I don’t think so anymore.