Progressive Lawyers Group

Joint Statement in relation to the rejection of the appointment of Professor Johannes Chan

Joint Statement by the 18 Professional Groups in relation to the Council of the University of Hong Kong’s rejection of the appointment of Professor Johannes Chan as the Pro-Vice-Chancellor

On 29 September 2015, the Council of the University of Hong Kong (the “Council”) rejected (by 8 votes in favour and 12 votes against) the Selection Committee’s sole recommendation to appoint Professor Johannes Chan as the Pro-Vice-Chancellor. We hereby express our anger and condemnation in respect of this baffling decision. At the same time, we regret that the Council has still not given a specific explanation in connection with its decision.

But what is concerning is that, according to Mr. Billy Fung Jing-eh, student representative of the Council, members of the Council who advocated the rejection of Professor Chan’s appointment spoke nonsensically at the Council meeting by citing baseless reasons. At one point they even cited reasons such as the lack of search results for Professor Chan on Google Scholar (but one would know that law scholars or law students use specific search databases and rarely use Google Scholar as a search engine), or that Professor Chan does not have a PhD degree. Even absurd reasons such as whether Professor Chan has sent his regards to Professor Lo Chung Mau was cited as a condition for becoming the Pro-Vice-Chancellor.

Professor Chan has served the University of Hong Kong for 30 years. He was the Dean of the Faculty of Law of the University of Hong Kong for 12 years. Professor Chan was also appointed by Andrew Li, the former Chief Justice of the Court of Final Appeal in 2003, as the only Honorary Senior Counsel in Hong Kong in recognition of his achievements in education. It can be seen that the various “reasons” quoted by the members of the Council who rejected the appointment of Professor Chan are in fact unjustified. In addition, in the past few months, following the unceasing and baseless personal attacks by newspapers that are mouthpieces of those in power towards Professor Chan, the Council continued to delay its resolution to appoint the Pro-Vice-Chancellor and even used ridiculous reasons such as “waiting for the appointment of the Provost and Deputy Vice-Chancellor”. All these incidents inevitably cause us to sense that an external force in the form of Beijing is intervening with the appointment of Professor Chan as the Pro-Vice-Chancellor. We have therefore become pessimistic as to whether academic freedom can be maintained in Hong Kong.

We must also mention that it was Mr. Fung who, despite the risk of being subject to disciplinary action by the Council, disclosed what took place in the Council meeting. It was him who uncovered the various excuses made by those Council members against the appointment. In this regard, we greatly appreciate Mr. Fung’s moral courage and sense of responsibility.

Regrettably, we observe that there were numerous public criticisms directed at Mr. Fung. Concerning this matter, we must point out that according to Paragraph 5.3 of The University of Hong Kong Guide and Code of Practice for Members of the Council, Council members shall abide by Seven Principles of Public Life, including:

(1) Council members should take decisions solely in terms of the public interest;
(2) Council members should not place themselves under any obligation to outside organisations that might influence them in the performance of their official duties;
(3) In making public appointments, Council members should make choices on merit;
(4) Council members are accountable for their actions to the public;
(5) Council members should be as open as possible about all decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands;
(6) Council members have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest; and
(7) Council members should promote and support these principles by leadership and example. We consider that Mr. Fung had acted in manifestation of the above Seven Principles of Public Life, in particular in upholding Principles No. (1), (3), (4) and (5).

Furthermore, in this context it is well-established at common law that when the Court determines whether there is a breach of confidence, public interest should be taken into account. Unless the secret documents disclosed endangers public interest, the Court will not protect to such secret documents (Commonwealth v Fairfax (1980) 147 CLR 39; R v Ponting [1985] Crim. L. R. 318).

Academic freedom is one of Hong Kong’s core values. We will continue to seek accountability from those Council members who improperly interfered with the independence of the University. We are considering further actions in following-up on this incident involving the Council, and will provide the public with more details once such proposed actions have been finalised.

Act Voice
Action Accountants
At-grade
ArchiVision
Artists Action
Financier Conscience
Frontline Tech Workers
Hong Kong Psychologists Concern
Insurance ARISE
IT Voice
Médecins Inspirés
Nurses Political Reform Concern Group
Planners’ Voice
Progressive Lawyers Group
Progressive Teachers’ Alliance
Radiation Therapist and Radiographer Conscience
Reclaiming Social Work Movement
Surveyor Conscience

精算思政 Act Voice，Action Accountants 進步會師，At-grade 園境 • 願景，思政築覺 ArchiVision，藝界起動 Artists Action，前線科技人員，良心理政 HK Psychologists Concern，保險起動 Insurance ARISE，IT Voice，杏林覺醒 Medecins Inspires，護士政改關注組，Progressive Lawyers Group 法政匯思，進步教師同盟 Progressive Teachers’ Alliance，放射良心，社工復興運動 Reclaiming Social Work Movement，量心思政 Surveyor Conscience

2 October 2015

Zhang Xiaoming’s Comments Devoid of Legal Basis

Not that the ‘Rule of Law’ means anything in China where a ‘contract’ is often worth less than the paper it’s written on, but according to the Progressive Lawyers Group, Zhang Xiaoming’s recent statement has no legal basis under the Basic Law.

The Director of the Central Government’s Liaison Office, Zhang Xiaoming, said on the 12 September that the Chief Executive’s (CE) position transcends that of the executive, legislative and judicial branches of government, and that separation of powers between these three branches of government can only be applied at the level of a sovereign.

The Progressive Lawyers Group considers such views to be devoid of legal basis for the following reasons.

(1) The CE’s position stems from the Basic Law, with no “special legal status”

The Basic Law has constitutional status in Hong Kong SAR, and is the source which sets out the CE’s powers. The SAR’s affairs, including the CE’s roles and limits on his powers, are provided for under the Basic Law, and cannot be altered simply by some apparatchik claiming that the CE is the means by which the Central Government rules Hong Kong:

– Article 2 of the Basic Law clearly states that Hong Kong enjoys executive, legislative, and independent judicial (including the power of final adjudication) powers.

– Article 11 of the Basic Law requires that Hong Kong’s systems in respect of executive, legislature and judiciary shall be based on the Basic Law itself.

– Article 59 of the Basic Law stipulates that the SAR Government is the executive branch of government in Hong Kong, and that the CE is the head of the SAR Government. Thus, the CE is clearly and merely part of the executive branch, and does not in any way enjoy a status which transcends the executive branch.

– Article 64 of the Basic Law also states that the SAR Government must abide by the law. Thus, as the head of the SAR Government, the CR must abide by and cannot transcend the law, including the Basic Law.

As can be seen, under the Basic Law, there does not exist any so-called special legal position when it comes to the CE’s role in Hong Kong’s political system. Thus, Zhang Xiaoming’s statements are devoid of legal basis.

(2) Separation of powers between the three branches of government is not only applicable at the sovereign level, the CE is subject to legislative and judicial checks

The separation of powers between the executive, legislative and judicial branches, where they operate independently but also subject to checks on each other’s powers, is something that is currently applicable to the national, state and even local governments of many democratic jurisdictions. Zhang Xiaoming’s assertion that this concept is applicable only at the level of the sovereign clearly shows his ignorance in this regard.

As to Hong Kong, looking at the provisions of the Basic Law as a whole, the existence of such separation of powers is relatively clear, and was affirmed by the Court of Final Appeal (see Leung Kwok Hung v The President of the Legislative Council of the Hong Kong Special Administrative Region (2014), paragraph 27). The Basic Law clearly delineates Hong Kong’s executive, legislative and judicial branches of government, and in a various parts set out provisions which create checks on each other’s powers. For example:

– Article 64 of the Basic Law states that the SAR Government must abide by the law and be accountable to the Legislative Council.

– Articles 49, 50, 51 and 76 states that the CE’s checks on the Legislative Council, such as the special circumstances when he can dissolve the Legislative Council.

– As regards the judiciary, Article 80 of the Basic Law states that the various courts of Hong Kong constitute the Hong Kong’s judiciary, which exercises the Hong Kong SAR’s judicial power, and the independence of the judiciary is protected by Article 85: “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference”.

(3) Zhang Xiaoming should seek to familiarise himself with the Basic Law

Zhang Xiaoming graduated with law degrees from Southwest University of Political Science and Law and Renmin University of China, both of which are apparently colleges of renown within Mainland China. However, his remarks on Saturday demonstrated his twisting and ignorance of the law, which is a disservice to his alma mater’s reputation. Rather than yet again sowing trouble and discord in Hong Kong, Zhang Xiaoming the apparatchik should seek first to familiarise himself with the Basic Law before saying anything further on these topics. In short, Zhang’s comments are so patently absurd that those seeking to defend him should be careful of being seen as sailing too close to the wind, lest they end up also appearing as buffoons themselves.

Progressive Lawyers Group
14 September 2015
https://www.facebook.com/proglawgroup

Originally published in The Stand News

The Progressive Lawyers Group are a group of Hong Kong lawyers dedicated to promoting core values of rule of law, judicial independence, democracy, human rights, freedom, and justice.

Professional Groups Publish Advert Protesting the Government’s “Abuse” of TV API’s to Push it’s Political Agenda

These five professional groups Frontline Tech Workers前線科技人員議政小組, Médecin Inspirés 杏林覺醒, Progressive Lawyers Group 法政匯思, Progressive Teachers’ Alliance 進步教師同盟, Reclaiming Social Work Movement 社工復興運動 took out and advert to protest about the government’s abuse of the television “Announcements in the Public Interest” (API’s) program to promote the governments position on political reform.

The text of the advert reads:

Joint Statement on the Government’s Misuse of Announcements of Public Interest

1. The broadcasting of political advertisements is unlawful in Hong Kong. A broadcaster was penalised for carrying advertisements advocating universal suffrage as part of the 2010 electoral reform process.

2. The Government requires radio and television broadcasters to broadcast “Announcements in the Public Interest” (“APIs”) for free. Typical APIs include messages such as those involving public health, road safety or weather information like a typhoon or rainstorm.

3. In recent months, the Government has required radio and television broadcasters to air the following advertisements without payment as if they were APIs:
(a) “有票，真係唔要” (Your Vote, Don’t Cast it Away!) from 7 August 2014;
(b) “有票，梗係要” (Your Vote, Gotta Have It!) from 2 September 2014; and
(c) “2017 機不可失” (2017, Seize the Opportunity) from 10 January 2015.

4. These advertisements are different from APIs. They carry a strong bias to advance the Government’s political position on electoral reform, to the exclusion to any other position. They are neither factual nor educational. These advertisements are no different from the unlawful political advertisements referred to above.

5. As such, these advertisements are not APIs. They are unlawful political advertisements which cannot be broadcast on radio or television. The Government’s unlawful abuse of its exclusive powers to broadcast APIs has also unjustly distorted the public debate on electoral reform.

6. We therefore condemn the Government’s broadcast of political advertisements under the guise of APIs. It must cease doing so immediately. To continue do so is not only unlawful, but also hypocritical in light of the Government’s recent repeated insistence upon “acting in accordance with the law”.

Frontline Tech Workers前線科技人員議政小組
Médecin Inspirés 杏林覺醒
Progressive Lawyers Group 法政匯思
Progressive Teachers’ Alliance 進步教師同盟
Reclaiming Social Work Movement 社工復興運動