王維基應該問什麽問題?

其實整件事的最大問題並不是香港電視獲不獲發牌,節目好不好,電視台營運如何,有多大競爭力,有多少現金流,市場是否飽和,而是香港的法治經過此一役還有沒有應有公信力。我相信答案是沒有,至少是受到很嚴重的打擊。

最根本的問題是,爲何行政會議擁有決定對電視台發不發牌的權力,而一個電視台的並不會影響社會秩序與公衆利益?我沒有聼過任何商業機構在香港的合法經營需要經過行政會議決定通過。像銀行這種真正會影響社會秩序與公衆利益的機構,它只需要根據金管局開出的標準申請,只要符合標準,金管局就應當發出牌照。如金管局要應用裁量權不發牌照,它必須說明理由並為申請者提供一個申訴的機會。爲何行政會議的審判過程與影響金融秩序的銀行審批過程不一樣?爲何行政會議:1)越俎代庖,代替通訊事務管理局行使職權;2)不需要向申請人説明理由;3)不需要聆聽申請人申訴?另外,到底是《基本法》哪一章哪一條賦予行政會議這種權力?

《基本法》只說行政會議是「協助行政長官決策的機構」、「行政長官在作出重要決策、向立法會提交法案、制定附屬法規和解散立法會前,須徵詢行政會議的意見」,然則行政會議只是協助行政長官的顧問機構,而行政長官並沒有發出電視台牌照的權利,那是通訊事務管理局的職務。如是者,造成今天問題的原因,就是行政長官與行政會議越過通訊事務管理局與政府發牌的正常程序去決定發牌與否;這樣的行徑是違法的越權行爲。法治的作用是用制度與程序保障所有人都會得到公平的待遇,合資格就是合資格,就需要發出牌照。如要使用裁量權,當局也應按照既有程序説明原因。

現在行政會議越權,不説明不發牌的原因,無法解釋爲何跳開既有程序,又沒有明確法例賦予它這個權限,唯一合理結論就是行政長官與行政會議的決定違反憲法,決定無效。在一個憲政體制健全的政治體,法庭必然會這樣判,但在現今的香港,法庭會做什麽判決我並不得而知。相對於王維基好夢成空,這才是讓人沮喪的原因。成效怎樣我真的不能預料,但還是建議王維基依據憲政問題處理香港電視的司法覆核。

更正:《廣播條例》8、9、10條說行政長官連同行政會議有發出牌照的權利,但其他問題,例如程序正義,依然存在。

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8 則回應給 王維基應該問什麽問題?

  1. Bill 說:

    I am afraid the Chief Executive in Council has the power to refuse granting the licence. The power comes from Cap 562 Broadcasting Ordinance. Sections 8, 9 and 10 are relevant.

    Section: 8 Heading: To whom licence may be granted Version Date: 02/08/2012
    (1) The Chief Executive in Council may in accordance with this Ordinance grant a licence to provide a domestic free television programme service or domestic pay television programme service on application made to him in the specified form by a company.
    (2) The Authority may in accordance with this Ordinance grant a licence to provide a non-domestic television programme service or an other licensable television programme service on application made to it in the specified form by a company. (Amended 17 of 2011 s. 28)
    (3) Subject to subsection (4), a domestic free television programme service licence shall not be granted to a company which is a subsidiary of a corporation.
    (4) Without prejudice to the operation of Schedules 1, 4, 5, 6 and 7, unless otherwise provided in this Ordinance, a licence shall not be granted to and held by a company unless-

    (a) in the case of a domestic free television programme service licence or domestic pay television programme service licence-
    (i) the company complies with paragraph (b) of the definition of ordinarily resident in Hong Kong in section 2(1);
    (ii) the majority of the directors required under subparagraph (iv) actively participate in the direction of the company;
    (iii) a quorum of every meeting of the directors of the company has a majority of directors who is each for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of ordinarily resident in Hong Kong in section 2(1) and has been so resident for at least one continuous period of not less than 7 years;
    (iv) except with the prior approval in writing of the Authority, the majority of the directors of the company and the majority of the principal officers of the company, including the principal officer of the company in charge of the selection, production or scheduling of television programmes, is each an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of ordinarily resident in Hong Kong in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and (Amended 17 of 2011 s. 28)
    (v) no disqualified person, other than a person whose disqualification is disclosed in the application for the licence, exercises control in the company;
    (b) in the case of a non-domestic television programme service licence or an other licensable television programme service licence, not less than one director or principal officer of the company is an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of ordinarily resident in Hong Kong in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and
    (c) in the case of any licence, the company is empowered under its memorandum and articles of association to comply fully with the provisions of this Ordinance and its licence conditions (whether actual or proposed).

    Section: 9 Heading: Recommendations by the Authority on applications for licences* Version Date: 02/08/2012
    (1) An application for the purposes of section 8(1) or (2) shall be submitted to the Authority in the specified form.
    (2) The Authority shall consider applications for a domestic free television programme service licence or a domestic pay television programme service licence and make recommendations thereon to the Chief Executive in Council.
    (3) Where an application is submitted to the Authority, it shall- (Amended 17 of 2011 s. 28)

    (a) cause a notice to be published in the Gazette as soon as is practicable-
    (i) stating the name of the applicant and the type of licence sought by the applicant together with such other particulars as the Authority thinks fit; and
    (ii) stating that members of the public who are interested may make representations on the application to the Authority by a date specified in the notice, being a date not less than 21 days after the notice is published; and
    (b) consider the representations, if any, received by the date.

    Section: 10 Heading: Grant of licence Version Date: 02/08/2012
    (1) The Chief Executive in Council may, after considering recommendations made pursuant to section 9(2), grant a licence under section 8(1) subject to such conditions as he thinks fit specified in the licence.
    (2) Subject to subsection (3), the Authority may grant a licence under section 8(2) subject to such conditions as it thinks fit specified in the licence.
    (3) The Chief Executive in Council, in the case of licences, or a class of licences, that may be granted under section 8(1) and the Authority, in the case of licences, or a class of licences, that may be granted under section 8(2), may by notice in writing specify conditions to which the licences shall be subject.
    (4) The Chief Executive in Council or the Authority, as the case may require, may, where he or it considers it is in the public interest to do so, vary a licence at any time during its period of validity after the licensee has been given a reasonable opportunity to make representations under subsection (5).
    (5) A licensee may make representations to the Authority in relation to any proposed variation under subsection (4) and, in the case of a licence granted by the Chief Executive in Council, the Authority shall fairly reflect the representations to the Chief Executive in Council.
    (6) The Chief Executive in Council or the Authority, as the case may require, shall consider the representations, if any, made under subsection (5) before implementing any proposed variation under subsection (4).
    (7) A licence or an interest in a licence shall not be transferred in whole or in part.

    What Mr Wong should do is to appeal to the Chief Executive in Council within 30 days by virtue of S.34 before launching a judicial review. Not appealing to the Chief Executive in Council first may create an unnecessary hurdle in the judicial review proceeding resulting in the dismissal of of the court proceeding because Mr Wong should exhaust all administrative avenues before contemplating the judicial review proceeding.

    • 山中 說:

      I see. Yet this ordinance is fuzzy on the procedure and requirements for the granting of license, making it unclear as to how the CE in council can come up with the decision, and there is no provision ensuring a fair process. Furthermore, does the Basic Law allow the CE to have the power to approve commercial licenses without providing specific reasons? It seems that this ordinance is in violation to the principle of good governance by vesting undue power to the CE and his council. Even if he CE having this power is justifiable, does it extend the Council’s privilege of secrecy on this subject, as doing so would hamper transparency in ordinary administrative matters. it is just a very bad law in any case.

      • Bill 說:

        My narrow point only addresses your query about the legality of the CE in Council in rejecting the granting of licence. Secrecy matter should come from the oaths of the executive councilors. The obligation to provide sufficient answers and the sufficiency of it is a very different matter. In the instant case, there is ample evidence to show the non disclosure is unjustifiable.

        • 山中 說:

          While not disputing the fact that this ordinance confers the power to the CE in Council, I think this ordinance has some major constituional issues. It makes the CE exercise part of the functions of Authority for no particular reason and without a set of procedures. The CE is stepping over his boundary as head of government and assuming the jurisdiction of a subordinate agency.

  2. jactkwn 說:

    1.蘇錦樑當日在記者會說不能就行政會議決定上訴,只能JR

    2.不公開原因,和特首會同行政會議有沒有絕對權力不依從下級官僚建議發三個牌,似乎是兩回事吧。不知道以下這宗案件有沒有啟示呢?

    http://hk.apple.nextmedia.com/news/art/20130514/18259600

    • 山中 說:

      1. 根據廣播條例34條,申請人可以就當局決定申請覆議。一個可能的解釋是只能就管理局的決定申請覆議,行政會議的決定不包括在内。這樣子行政會議所做的是一個武斷(arbitrary)決定,它的權力也超出正常的政府行政程序,並不符合法治精神。
      2. 先假定行政會議有這個職權,問題是行政會議憑什麽不依照正常程序辦事。就算它有權力審批,它也需要按照申請準則去發出/不發出牌照。TVB不能覆核的原因是政府並沒有作出任何決定,根本無案可覆。

      • Bill 說:

        S.34 Cap 562,

        (1) Subject to the provisions of this section, a licensee (including a person seeking to be a licensee) aggrieved by-

        (a) a decision of-
        (i) the Authority in the exercise of a discretion conferred on it under this Ordinance or the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391) (including a decision to specify a condition in a licence); (Amended 17 of 2011 s. 28)
        (ii) (Repealed 17 of 2011 s. 28)
        (b) anything contained in a direction, order, or determination, under this Ordinance; or
        (c) anything contained in a Code of Practice,
        may appeal by way of petition to the Chief Executive in Council, not later than 30 days beginning on the date of the relevant decision, the issue or making of the direction, order, or determination, or the publication of the Code of Practice, as the case may be.

        The decision by the Chief Executive in Council obviously is a determination mentioned in S.34(1)(b). That is why I said Mr Wong should first appeal to the Chief Executive in Council.

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