tim's experiment

The government’s advertisements — I beg your pardon announcements — urging us to “Act Now”, raise interesting questions. Not about the merits of “acting now” a topic on which we have no power and will not be consulted. Nor about the merits of the ads — I beg your pardon announcements — themselves, though they were well down to the standards to which we have become accustomed. The announcements urging you to change the water in your flower pots at least offer an argument: standing water = moquitoes = tropical diseases. Act Now’s analogy with ballroom dancing was just an appeal to a poor metaphor. 

The question which will no doubt provide some entertainment and income for sundry lawyers in the near future is whether it is proper for a TV company to broadcast such a thing, when we have been repeatedly told that the broadcast media are not allowed to run political advertisements. As it happens we have some recent examples. A political party, the DAB, sponsored a radio programme. The DAB, as is its habit, did not defend this as either not an advertisement or as legal on other grounds. They said the democrats had also broken the rules, pointing to a paid ad from Ms Emily Lau announcing a political meeting. 

It seems to me, assuming that the DAB’s characterisation of Ms Lau’s broadcast is accurate, that both these offerings should have been refused by the station concerned, because both ought to be covered by the ban on political advertising. Clearly an announcement of a meeting ought to be covered by any ban on political ads. It is not asking people to buy something, but that is not what politicians do.  Media may, as a public service, report the date and time of upcoming meetings but a paid for announcement is an advertisement, like an announcement of a birth, marriage or death. The sponsorship of a programme may be a more subtle form of advertising, but advertising it is. Makers of expensive watches to do not sponsor programmes which consist of a ten-second look at a clockface because of a philanthropic desire to ensure that television viewers know what the time is. The sponsor hopes that people will think better of him because of his sponsorship. That does not, of course, mean that the DAB may not sponsor public-spirited programmes. It means only that such sponsorship may not be announced over the airwaves. If the party no longer wishes to sponsor a programme on those terms then the claims of public-spirited motivation are hypocritical, a common ailment in political parties. 

This brings us to the “Act Now” spots. I think you would need to have a very expensive legal education to dispute the point that these were political. The future constitutional arrangements for Hong Kong are clearly a matter within any reasonable definition of political matters. They are discussed predominantly by politicians, and the matter is to be decided in the Legislative Council, which few will dispute is a political body. And indeed the official spokesman who tackled the matter did not dispute that the subject matter was political. He said that Announcements of Public Interest were for the purpose of informing the public about government policy, and the proposed reforms became government policy once they were approved by Exco. 

We will perhaps leave to the lawyers, who enjoy this sort of thing, the question whether on the face of it this is enough. If broadcasters are prevented by law from broadcasting political ads this should surely include political ads offered by the government, whether or not those ads fall within the proper definition of an API. If I complain to the Broadcasting Authority that an API is a political ad is the authority going to reply that such announcements are above the law? What would happen, one wonders, if in an unguarded moment the government perpetrated an API which was indecent or obscene? Would the station which had actually broadcast it be allowed the defence that it had no editorial control over the matter? 

But I suspect these questions are unnecessary, because the official concerned was quite wrong in suggesting that a matter became “government policy” once it was approved by Exco. This might have been good enough in the old days when Exco was “The Governer-in-Council” and he did not have to take its advice if he did not like it. The Legislative council, in those days, was entirely chosen by the Governor and if it had flatly refused to do his bidding he could replace it in toto or rule by decree. However our present constitutional arrangements are different. Government legislation and spending require the approval of Legco. Changes to the electoral arrangements are explicitly stated to require the approval of Legco. Clearly Legco is constitutionally part of the Government. It is not the Chief Executive’s creature and nor is he encouraged to rule without it. Accordingly a decision on matters within Legco’s competence or requiring Legco’s approval cannot, it seems to me, become government policy until the council has had its say. Until that point they are still policy under construction, as it were, and cannot be regarded as appropriately uncontroversial for an API. This point has been nicely illustrated by the events of the last few days, in which it has been discovered that the proposals praised in the Act Now ads are no longer government policy, which now favours an amended version. So the APIs were APIs last week but would be political ads if aired again this week. Come on folks, the law may be an ass, or in the case of some lefty lawyers a weathercock, but surely it is not as stupid as that…