Church told to pay up after losing schools battle

PUBLISHED : Saturday, 07 January, 2012, 12:00am
UPDATED : Saturday, 07 January, 2012, 12:00am


The Court of Final Appeal yesterday ordered the city's Catholic diocese to bear the full legal costs of its failed challenge against government reforms which reduced the church's powers in schools it runs.

The ruling was the final blow in a five-year judicial review of the Education Ordinance revisions which took effect in 2004.

The church, which argued that the revisions violated schoolmanagement practices enshrined in the Basic Law, sought to defray litigation costs in previous hearings.

It told the courts of first instance and appeal that the government should pay a 'reasonable percentage' of the bill since it 'was taking an acceptable position before and during' the trial.

Vicar General Father Dominic Chan Chi-ming said yesterday that the exact legal cost would take some time to figure out, but said the diocese would have 'no problem' footing the bill.

Barrister Albert Luk Wai-hung said a case that reached the Court of Final Appeal could cost tens of millions of Hong Kong dollars in legal fees, unless lawyers provide discounts. However, Chan doubted it would reach that amount.

In its judgment yesterday, the top court said there were no special features in the case that would warrant exempting the losing party from paying legal fees.

Former diocesan chief Cardinal Joseph Zen Ze-kiun once staged a three-day hunger strike to protest the ordinance amendments which would affect the church's 80 aided schools.

The church, which previously had 100 per cent control over its management committee, feared that 'outsiders' to be included in the panel would not adopt Catholic philosophy.

The judges reaffirmed that 'there was no suggestion that the 2004 amendments posed any threat to freedom of religion'. They also refuted the church's argument that the Basic Law guaranteed that religious bodies could continue to run schools after the 1997 handover in accordance with 'previous practice'.

'The court holds that the appellant's asserted authority to appoint 100 per cent of a school's management committee, as well as the school's supervisor and principal according to its previous practice, involves no constitutional right protected by the Basic Law,' they said.

The judges said the church, represented by Martin Lee SC, was 'at pains' to dissuade the court in the case.

The ordinance changes gave schools until July 1, 2009, to set up an incorporated management committee in which parents, alumni, teachers and independent candidates made up 40 per cent of members. Sixty per cent would be appointed by the sponsoring body, such as the church.

An Education Bureau spokeswoman said that as of yesterday, 495 of 846 total aided schools had formed such committees. This means six more schools have formed the panels since October's count of 489.

Mr Justice Kemal Bokhary, from the Court of Final Appeal, said in a ruling in October that the ordinance still left religious groups free to nominate the majority of committee members.

Bokhary said the legislation made no direct attack on religious activities at schools. As long as religious organisations were free to nominate most of the members of its committees, then religious activities were acceptably safe from indirect attack and from erosion, he said.

Meanwhile, Chan said the diocese was drafting charters for its aided schools to help them set up the management committee as required by the court, and that the process could take a few months to complete. He said the church had reached an agreement with the government on this matter.