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University Autonomy, Academic Freedom and Government Control

2016/1/26 — 6:24

王式英

王式英

【編按:本文為作者於1月23日公民實踐培育基金舉辦的「大學之道:自由自主」論壇上的發言】

1.The Basic Law gives to Hong Kong the protection of university autonomy and academic freedom.

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2.The events of 2015 arising out of Professor Johannes Chan proposed appointment as Vice-President and Pro Vice-Chancellor (Academic Staff and Resources) revealed the conflict between the Government’s action to control HKU and Basic Law’s right of university autonomy and academic freedom.

3.This conflict between Government control and University Autonomy will not go away and in time will become worse.

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4.The HKU Students are now taking action to resolve this conflict. Class boycott is their initial action.  They made the following 4 demands:

(1) Set up a special University committee under the Ordinance to consider governance reform;

(2) The Chief Executive should not be the automatic Chancellor of HKU;

More than 50% of the total members of the Council should be HKU members;
 The statutory provision of the Chief Executive as Chancellor appointing 7 members of the Council (including the Chairman) to be amended to an appointment by the Council.

5.To examine whether the demands are reasonable, it is necessary to consider the following main points made by Professor Chan in his paper:-

Is there a valid case shown of past political interferences and attempted control of university affairs by the Government which threatened the protected university autonomy and academic freedom;
Is there a conflict between the role of Chief Executive and the role of Chancellor of HKU;
Which of the three governance systems (professors governance, outsiders governance and mixed governance) should be adopted at HKU and whether as a minimum, in keeping with the dual right of university autonomy and academic freedom, at least the majority of the members of the Council should be from HKU.

6.I will not repeat the very cogent case put forward on each of these three points by Professor Chan. You will judge whether there had been interference and attempted control by outsiders affecting the university autonomy.  For myself I think a strong case has been made out and I suspect the majority of Hong Kong people will agree with that view.   

7.The conflict between the role of Chief Executive and his role as Chancellors of 8 universities in Hong Kong (as shown by Professor Chan) is not only real but is surprisingly not subject to serious adverse criticism or strong call for correction until recently. Better lawyers and judges will tell us soon, whether urgent steps must be taken immediately to correct this.

8.On the three forms of university governance described by Professor Chan, there is room for discussion whether the traditional professorial governance or mixed system should be adopted.  In my view there is really no room for the American system of outsiders being in control of our publicly supported universities. Having regard to the Basic Law imperative of university autonomy and academic freedom, I would support Professor Chan in his urging that the Council of HKU composition should be changed so that a majority of the members of the Council come from the University. The present statutory scheme of Statute XVIII under:

paragraph 1(a), 7 persons including Chairman (not students or employees of HKU) appointed by the CE;
paragraph 1(b), 6 persons (not students or employees of HKU) appointed by the Council;
paragraph 1(c), 2 persons (not students or employees of HKU) elected by the Court

results in a total of 15 members of the Council out of 24 being outsiders.

9.I am aware that the very able Professor Peter Mathieson has established a   Senior Management Team - SMT comprising:-

Professor Peter Mathieson, President and VC

Professor Paul Tam, Provost and Deputy VC

Dr. Steven Cannon, Executive VP (Administration & Finance)

Professor Ian Holliday, VP and Pro VC (Teaching and Learning)

Professor Andy Ho, VP and Pro VC (Research)

Professor John Kao, VP and Pro VC (Global)

Mr. Douglas So, VP and Pro VC (Institutional Advancement)

Mr. Henry Wai, Registrar

Ms Sara Lo, Director of Finance.

10.The SMT is preparing a strategic plan of 5-10 years and a consultation exercise is underway to seek the views of the stakeholders on the way forward for the long term well-being of HKU. No doubt the ambitious plan would be to ensure that HKU will remain at the very top league of world universities, an objective which is supported by everyone in Hong Kong. Therefore everything I am saying now, will be subject to what will emerge from the strategic plan being put together by the SMT. If anything discussed today can contribute to the Strategic Plan bring to the world a truly world class HKU, then today’s discussions will be a worthwhile exercise.

11.I like to make it clear that what I put forward in this paper is tentative and is meant to be a teaser to bring out creative ideas from every interested person, on how to ensure university autonomy and academic freedom at HKU, particularly in the Council.  I mainly confine myself to the Council because that is the central governing body of HKU under the Ordinance and that is where we must have university autonomy, academic freedom, good transparent governance and a united governing body under the universally respected Chairman of the Council.

12.The following are the relevant statutory provisions relating to the Council of the University of Hong Kong, as appear in the University of Hong Kong Ordinance (Cap. 1053).

“Section 7.  Court, Council and Senate, their constitutions, powers and duties

(1) There shall be a Court, a Council and a Senate whose respective constitutions, powers, and duties shall be prescribed by this Ordinance and the statutes.

(2) The Court shall, subject to the provisions of this Ordinance and the statutes, be the supreme advisory body of the University. 

(3) The Council shall be the supreme governing body of the University, and shall provide for the custody and use of the University seal, and subject to the provisions of this Ordinance and the statutes, the Council may exercise all the powers and is to perform all the duties of the University other than those vested or imposed by this Ordinance or the statutes in some other authority of the University or in an officer.

(4) Subject to the provisions of this Ordinance and the statutes, and to the financial control of the Council, the Senate shall have the regulation of all matters relating to education in the University.

(5) No act or resolution of the Court, the Council, or the Senate shall be invalid by reason only of any vacancy in, or any want of qualification by or invalidity in the election or appointment of any member of, any such body.”

“SECTION 12.   Officers and teachers, their appointment, powers, duties and emoluments.

(1) …….

(2)  The Chancellor shall be the chief officer of the University.

(3) The Chief Executive shall be the Chancellor.  In the absence of the Chief Executive the person for the time being assuming the duties of the Chief Executive according to the provisions of Article 53 of the Basic Law shall be the Acting Chancellor, and as such shall have all the powers and duties of the Chancellor.”

“STATUTE XVIII    THE COUNCIL

1. The Council shall consist of-

(a) 7 persons, not being students or employees of the University, appointed by the Chancellor, one of whom shall be appointed the Chairman by the Chancellor;

(b) 6 persons, not being students or employees of the University, appointed by the Council;

(c) 2 persons, not being students or employees of the University, elected by the Court under sub-subparagraph (ba) of Statute XVII;

(d) the Vice-Chancellor;

(e) the Treasurer;

(f) 4 full-time teachers elected in accordance with regulations;

(g) 1 full-time employee of the University, not being a teacher, elected in accordance with regulations;

(h) 1 full-time undergraduate student elected in accordance with regulations; and

(i)  1 full-time postgraduate student elected in accordance with regulations.

1A. The Registrar shall be the secretary to the Council but shall not be a member thereof.

2. A member referred to in paragraph 1(a), (b), (c), (e), (f) or (g)-

(a) shall serve for a term of 3 years;

(b) shall be eligible for re-appointment or re-election but no member may serve more than 3 consecutive terms without approval of the Court; and

(c) may resign by written notice addressed to the Registrar.

3. A member referred to in paragraph 1(h) or (i)-

(a) shall serve for a term as determined by the Council from time to time;

(b) shall be eligible for re-election;

(c) may resign by written notice addressed to the Registrar; and

(d) shall cease to be a member when he ceases to be a full-time student of the University.

4. (Repealed L.N. 186 of 2003)

5. Not less than one third of the members of the Council shall constitute a quorum at any meeting of the Council.

6. The powers of the Council may be exercised notwithstanding any vacancy in its number, but if at any time and as long as the number of members of the Council is less than 10 the Council shall discontinue the exercise of its powers.

7. The Chairman may require any officer or teacher to be present at a meeting of the Council.

8. (Repealed L.N. 186 of 2003)”

13.The first change to consider is to amend Section 12(3) of the Ordinance so that the Chief Executive will not be the Chancellor but instead the Chancellor will be elected or appointed by a new transparent system, so that a politically neutral person of great distinction acceptable to the University and all sectors of the Hong Kong community will be elected or appointed.

14.I say appointed or elected because this will be the critically important choice for HKU and for HK as to whether the future Chancellor of HKU will be a universally accepted person of the highest quality. Oxford University when the election of the Chancellor was hotly contested some years ago with Margaret Thatcher losing the election, showed the world what is the true measure of a democratic system of governance and university autonomy, even at an ancient university.

15.At HKU, there will be an opportunity to consider, discuss and decide whether the two positions of Chancellor and Chairman of the Council should be decided by the modern democratic system of election or by the old fashion system of appointment.

16.For myself, I have no doubt that proper mandate of the Chancellor and Chairman of the Council can only be secured by way of a democratic election.

17.The second change to consider is, with the Chancellor no longer being the Chief Executive, whether paragraph 1(a) of Statute XVIII on the 7 persons being appointed by the Chancellor requires amendment, such as for example, election or appointment by the Council (which will make it the same as under paragraph 1(b)) or by a newly created Council Appointment Committee. For me serious consideration should be given to the Council Appointment Committee route. 

18.The third change (a very important change) to consider is, whether with the Chancellor no longer being the Chief Executive, whether paragraph 1(a) of Statute XVIII on the Chairman of the Council being appointed by the Chancellor requires amendment, such as for example election or by appointment by the Council or by Court or by a newly created Council Appointment Committee.

19.As we all come to appreciate that the Chairman of the Council is a pivotal position at HKU, I think it is vitally important that any new Chairman of the Council must have the universal mandate of not only being elected but elected under a system which commands such support in the community, university and the Council that there will be no question of any future deadlock or protracted discussions in Council.

20.For myself, I think there is much to be said for the Chairman of the Council to be elected by members of the Council by a majority of at least 2/3 (including that of the President) and for such appointment of Chairman of the Council to be endorsed by the Court by a majority voting of again not less than 2/3.  With such a mandate, such Chairman of the Council will be able to carry out his mandate with efficiency and dedication and with the full support of the Council, the Court, the President and the University.  

21.The next series of possible changes relate to the extent of university autonomy:-

as manifested by the ratio of university (students + employees) members to outsiders;
as manifested by the ratio of student members to others.

22.The exclusion of students and employees of HKU for Council membership provided in paragraphs 1(a), 1(b) and 1(c) of Statute, results in numerically maximum number of university (students + employees) members not exceeding 9, out of a total of 24 Council members.  That is not university autonomy.      

23.I suggest that consideration should be given to strike out the exclusion provision of students and employees in paragraphs 1(a) and 1(b).

24.The next change to consider is whether there is a need for a specific statutory provision to ensure a majority of the members of the Council coming from the University.  To ensure proper autonomy, I suggest a starting point for majority of University members be a minimum of University members of 60% in Council rising to perhaps 80%.

25.Having regard to the legislative hurdles in relation to amendments to any Ordinance, the SMT will no doubt wish to consider creating a special group to study the whole matter of reform, leading to legislative changes. The composition of the different groups of members set out in paragraph 1 of Statute XVIII is no doubt the result of delicate balance which emerged from historical experience.  That balance needs to be given new and careful consideration and there should be extensive consultation with all stakeholders (including of course the Government, LegCo and all users of the HKU) before any proposed amendment is taken to LegCo.  In an ideal situation, the Government should be taking up the legislative change as the Government has an enormous interest that all 8 publicly founded universities in Hong Kong will benefit from the collective wisdom learnt from this difficult reform exercise.

 

 

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