立場新聞 Stand News

UNIVERSITY AUTONOMY, ACADEMIC FREEDOM & INDEPENDENT GOVERNANCE

2015/10/17 — 11:31

(編按:《立場新聞》以本文為基礎撰寫的報道,請看〈退休法官王式英:大學條例任由CY隻手遮天 港人應團結爭取修例〉)

1 Article 137 of the Basic Law reads:-

“Educational institutions of all kinds may retain their autonomy and enjoy academic freedom ….”

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2 No one in Hong Kong or Beijing can dispute that university autonomy and academic freedom together with judicial independence form the core values of Hong Kong and provide the vital basis for its success.

3 The connection between the autonomy of the university and independence of the judiciary is more real and important than most people realize. Without the Law Faculty having the benefit of independent HKU governance, where will Hong Kong find our future top Hong Kong lawyers and judges with independent thinking and high learning.

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4 It is not fully appreciated by the Hong Kong public, how closely the Law Faculty of HKU worked with the Hong Kong Judiciary.  Judges (including myself when I was a Judge) took on the public role of being Chief Examiners of PCLL at HKU. The Law Faculty of HKU regularly organized lecture series given by Hong Kong Judges, visiting NPJs or distinguished foreign legal scholars.  So much of the public law jurisprudence in Hong Kong was enriched by the scholarly contributions of the Law Faculty of HKU which was admirably led by Professor Johannes Chan for many years. Therefore it is no surprise that Professor Johannes Chan, SC was given the unique distinction of being appointed the first and only Honorary Senior Counsel by the HK Judiciary. (see Bar Chairman Edward Chan, SC tribute at the Silk Ceremony on 10th May 2003)

5 Judicial Independence and judicial excellence in public law go hand in hand with the HKU Law Faculty strength in public law.  The independent spirit of the Law Faculty of HKU of course contributed to Occupy Central and this is the cause of Beijing displeasure.  But it is the same independent spirit and high standard of the HKU Law Faculty which produced for Hong Kong, our top lawyers, legislators, Judges and professors. Political interference, diminishing of the HKU autonomy and deliberate political curtailing of the free Hong Kong intellectual spirit and academic freedom will cause long term and serious damage. To ensure future university autonomy and academic freedom, we owe it to our next generation that the future governance of the publicly funded universities be free from political interference and be truly independent.

6 The students of the various publicly funded universities in Hong Kong are reported to be organizing themselves to poll within each university, the students’ views on seeking amendments to their respective governing university ordinances. This is one possible route for reform.   But is it the right long term approach?

7 We have 8 statutory universities in Hong Kong, each governed by a particular Ordinance.  The list of the 8 statutory universities with their governing Ordinances are:-

8 Take for example the case of HKU with its Cap. 1053 University of Hong Kong Ordinance. Section 12(3) of that Ordinance provides that the Chief Executive shall be the Chancellor of HKU. Under Statute XVIII of that Ordinance, the Chief Executive as Chancellor is given the enormous power of appointing 7 persons to the Council including one of the 7 as Chairman of the Council. But the Chief Executive’s political influence does not stop at only the first 7 members he appoints, but also extends to 6 persons to be appointed by the Council. So it means that 13 persons of the Council are appointed, directly and indirectly, by the Chief Executive. No question of election.  Therein lies the enormous power by the Chief Executive to wield the political influence on the Council decision making and to shape the political composition of the University and its teachers.  This is wholly incompatible with the Basic Law and with the present feeling of Hong Kong that Beijing should not poke its nose into Hong Kong core value institutions.

9 Take for example another university with a Law Faculty. Under the Chinese University of Hong Kong Ordinance, the Chief Executive as Chancellor has the power under Statute 11 paragraph 1(k) to appoint 6 persons to the Council.  Under Paragraph 11 however there are provisions for many other members of Council whose appointment are indirectly controlled or influenced by the Chief Executive.  The political power of the Chief Executive on Chinese University Council appointment is very substantial, although not as overwhelming as at HKU.

10 City University is the third university with law teaching.  Under the City University Ordinance, the Chief Executive as Chancellor has the power under Section 10(f)(ii) to appoint 7 members to the Council and to appoint to the Council not more than 8 members on the recommendation of the Council.   The political power of the Chief Executive on City University Council appointment is very substantial.

11 Finally take the example of the recent controversial appointment by the Chief Executive of two particular political members to the Council of Lingnan University.  The Lingnan University Ordinance dates only from 1999 and is drafted very much in favour of the Chief Executive. Under Section 12 of that Ordinance, the Chief Executive has direct control of appointment of a total of 18 members under 12(a) and 12(b) and indirect influence on appointment of 7 members under 12(c).  The Chief Executive has a  predominant control of the Council of Lingnan University.            

12 This wide political power of the Chief Executive on the governing Council also applies to other publicly funded universities.

13 No one previously had expected that the statutory powers relating to the publicly funded universities in Hong Kong would be so politically used by a Chief Executive.  But Occupy Central and the hard CY Leung political regime under a new Beijing political leadership have changed everything in Hong Kong, including university governance.

14 The Chief Executive, CY Leung in his recent political statement made it very clear that the existing statutory powers relating to the universities are to be used by the Chief Executive and he will do so.  The use of such statutory power by a politician who is so close to Beijing and so distrusted by the people Hong Kong is the present dilemma of Hong Kong. 

15 Of course amendments of each University Ordinance can be made, with battle fought by the Chief Executive against each such proposed amendment. There will be a situation of divide and rule where each university will be doing the best for itself.  The recent hard line history of CY Leung and Beijing suggest that Hong Kong institutions of higher learning will be sucked further into the political nightmare common to all controversial public matters in Hong Kong.

16 However, consideration can be given to another approach.  Hong Kong people can and should come together to discuss this most important matter of the future governance of universities in Hong Kong which has a direct bearing on the future of their children’s high education and in my view, also the future of judicial independence in Hong Kong.  It seems to me that we in Hong Kong must grapple with the fundamental problem, which requires a uniform solution, on the essential necessity of preserving university autonomy and academic freedom, all across HK institutions of higher studies which are publicly funded.

17 Core institutions like the Judiciary and the Universities are publicly funded but that does not mean that these core institutions should become political vassals of the Chief Executive or Beijing.  In fact quite the contrary. The more important these core institutions are to the value and way of life and belief of Hong Kong people, the more they must be protected from political interference or attempts to change their nature to the new taste and requirements of the Chief Executive and of his master, Beijing.

18 Hong Kong’s people common objective must be that the people of Hong Kong who pay for higher education, should have the real say in the independent governance of all HK publicly funded universities, free of political interference, namely outlawing the Chief Executive or any pro-Government/anti-Government or pro-Beijing/anti-Beijing person or persons having the power to stack any University Council with members of  political inclination.

19 The exact shape and content of the proposed new or amending legislation should be publicly discussed by all the people of Hong Kong.  That would then have to be followed by public discussion and decision on the difficult route to attain the desired objective. How these will come about with public participation should be the immediate engagement of Hong Kong in the next few weeks.  It might be worthwhile for our universities to organize one or more large televised forum meetings where the whole subject (objective and means) can be openly discussed and conclusion on the way forwarded drawn. If large consensus is reached, then hopefully the Government will follow the will of the people and enact the necessary legislation. No doubt the Government and the Chief Executive will resist this move with all its powers at its command.  Beijing will be expected to work closely with the Chief Executive to frustrate and to stop this initiative for independent governance of the universities.

20 But the will of the people of Hong Kong is what counts at the end and public opinion when it shows its true demand will ultimately prevail or if not, then there will be dire consequences.

21 The governance of the publicly funded universities in Hong Kong should be political neutral, free of political bias and truly independent like the Judiciary of Hong Kong.   

22 This is the urgent task in front of us and we should all keep our eyes firmly on that ball and ensure it is done as soon as possible, hopefully within the next 6 months.

 

William Waung

Dated 15th October 2015  

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