Last throw of dice for diocese over schools
The Catholic Diocese of Hong Kong made a final bid yesterday to keep tight control of the schools it runs, telling the city's highest court that the government's school management reforms of 2004 are unconstitutional.
Martin Lee SC, for the diocese, contended in the Court of Final Appeal that they would destroy the atmosphere and management culture of the schools and shatter the unity of the diocese itself.
'If you lose the unity of the diocese, the whole of the Catholic [Church] is under threat,' Lee said, referring to possible effects on the church's stance on issues such as gay sex and abortion.
Lee argued that the 'divisive' ordinance breached article 141 of the Basic Law, which guarantees that religious bodies can continue to run schools in accordance with 'previous practice' prior to the 1997 handover.
The amendment to the Education Ordinance takes away the church's absolute control of about 100 schools.
The amendment gave schools until July 1, 2009, to set up an incorporated management committee (IMC). Parents, alumni, teachers and independent candidates must make up 40 per cent of members, with 60 per cent to be appointed by the sponsoring body, such as the Catholic Church. The deadline was extended following a campaign of resistance by the church, one joined by the Sheng Kung Hui (Hong Kong's Anglican Church) and the Methodist Church.
The Catholic Church lost its first legal challenge in 2006. It lost again in the Court of Appeal last year but was allowed to appeal to the highest court because the case involved a question of 'great general and public importance'.
Yesterday, Lee said Court of Appeal judges erred in interpreting the phrase 'previous practice'.
Had the lower court read the Chinese text of the Basic Law, it would have ruled in the church's favour, he said.
The law, he said, meant that church-run schools were no longer under the single management of the diocese but under separate IMCs set up by each school. That was contrary to 'past practice', Lee said.
He said the unity of school management was important because the church had strong positions on abortion, gay sex and liberalised sex.
Lee said the 'outsiders' introduced to IMCs may not be Catholic or be on the same wavelength as the church. He said the ordinance was introducing disharmony to the church schools. For example, he said, 'short-sighted' parents might want to sacrifice a number of religious lessons for another English or maths class.
'[The outsiders] may discuss cutting the morning prayer session to 10 minutes to allow time to sing the national anthem,' Lee said.
Chief Justice Geoffrey Ma Tao-li said: 'You seem to say that a religious group can't run a school with just 60 per cent - that's just not enough. It must have 100 per cent absolute dominance of the relevant school. I have difficulty with that. Why is it disruptive to have opposition from the 40 per cent?'
Lee said the church was not asking for a dominant presence on management committees, but 100 per cent control as had existed in the past.
Mr Justice Robert Tang Ching said: 'We are now in a world where people are encouraged to speak up and resolve the issues.'
Lee also said the government owed the church an answer on why direct subsidy scheme schools were given the choice of whether to set up incorporated management committees or not.
Paul Shieh Wing-tai SC, in a brief reply for the government, said the Basic Law guaranteed that religious groups could continue to provide religious education but without going to the extent of managing and controlling schools.
The court reserved its judgment.
According to figures from the Education Bureau, of the 846 aided schools, 489 have set up an incorporated management committees and another 67 have submitted draft IMC constitutions.