HKU council controversy

What exactly does 'academic freedom' mean to Johannes Chan and his supporters?

Tony Carty says a reading of public statements by the academic provides ample evidence of why his appointment was blocked by the University of Hong Kong council

PUBLISHED : Wednesday, 07 October, 2015, 3:45pm
UPDATED : Monday, 12 October, 2015, 12:32pm

It is widely thought that the decision by the University of Hong Kong council to reject Johannes Chan Man-mun's appointment as a pro-vice-chancellor is connected with the fact that he is "an internationally renowned legal scholar and administrator who champions the fundamental values of human rights and the rule of law". The failure to provide credible reasons for not appointing him is, therefore, a "litmus test for academic freedom", according to a Post article by Jerome A. Cohen and Alvin Cheung.

These sentiments are echoed by Chan himself who says that a publicly funded institution, acting in a matter of general interest, should be transparent in its reasons for decisions. There is even talk of a judicial review to see whether the institution took into account irrelevant considerations in reaching its decision.

Any influence of the Hong Kong government, which has six nominees on the council, will be widely assumed to be nothing more than a "diktat" from Beijing. So, it is easy to widen the Chan nomination dispute to include evidence of a failure of China's "trumpeted support for the rule of law", particularly in view of the "personal smear attacks" on Chan by the pro-Beijing press in Hong Kong (Cohen and Cheung again). Chan has counted 350 such attacks.

If staff and students of HKU decide to break the laws of Hong Kong with a view to compelling a change of government, that is fine with him as long as they fulfil their contractual duties to the university 

So it may appear that Beijing is directly engaged in an attack on the academic autonomy of HKU, one more incident in a global struggle where the Chinese government is itself seen as incompatible with "the fundamental values of human rights and the rule of law". No wonder Chan is seen as a threat! To my knowledge, the content of these smears has not been addressed in English-language media in Hong Kong. They are in Chinese, and I asked one of my mainland PhD students to translate one extensive article published when the smear campaign was at its height. The article included such criticism as: Chan's policy of having assistant professors without research degrees supervising mainly mainland PhD students; the faculty holding apparently academic meetings which are actually an expression of political activism; and appointing many senior Western academics who are not noticeably academically productive in research while in Hong Kong.

If there was to be a judicial review of these smears, I would expect any judge to say that they are "fair comment". That is, they come within a margin where reasonable people could hold differing views.

While I was a member of the faculty, I invited many of my senior colleagues, including the present dean, to comment on these criticisms and received no answer.

How does Chan himself see this global conflict? On the basis of published and public, if not widely circulated, documents, one might say he sees it in much the same terms as Cohen, a friend of the faculty. In a faculty newsletter in the spring of 2014, Chan introduced Michael Hor Yew Meng, the newly chosen dean as follows: "Some friends have expressed a concern how he would handle politically sensitive issues. When he was asked during his meeting with the Faculty how he would handle Benny Tai [Yiu-ting] in relation to his involvement in Occupy Central, his response was that as long as Benny or any colleague is pulling his weight in teaching, research and administration, what he or she does outside the Faculty should not be the business of the Faculty."

Chan goes on to say of Hor: "I have known Michael for over a decade. He is a man of humour and sensitivity and a person of high integrity … Despite his familiarity with Hong Kong … he is less experienced in dealing with China. No doubt he will need a lot of advice and support from colleagues and friends."

Chan played an active role in the appointment of his successor to the deanship. A leading world specialist in the common law, with the inevitably much deprecated PhD from Oxford in the philosophy of the common law, as well as a textbook on his chosen field, was also a candidate for the position. He made a lengthy presentation to the faculty on his academic vision for its future. Chan was in the front row, with Provost Roland Chin Tai-hong by his side. As the candidate finished, Chan began at once a hostile line of questioning about the administrative skills needed to run a major academic institution.

This is the context in which one might read what Chan continues to write in the newsletter: "The nature of Deanship … is a far more challenging and complicated job that requires a lot more than just academic credentials." Chan goes on to elaborate at great length on skills of corporate management. The following day, the candidate withdrew his application and Hor was approached shortly afterwards.

READ MORE: Lawyers, nurses, accountants, IT workers to join HKU students in protest over appointment row 

One already has an indication, through Hor, of how Chan understands academic freedom in the present political context of Hong Kong. Further evidence is provided in public email exchanges between Chan and a supposedly former law graduate, who chose to remain anonymous, in the first week of November 2014, when Occupy Central was in full swing.

The "law graduate" asked how a university law professor could square his teaching of law with being a leader of Occupy. By this time, the movement had been campaigning for the resignation of the chief executive, while occupying illegally wide public areas in Admiralty and Mong Kok. Chan replied: "It is true that illegal means to achieve a justified end is still illegal, but my understanding is that Benny has never claimed that what he has done is legal. Indeed the whole point of civil disobedience is to accept the legal consequences for doing this unlawful act. Martin Luther King has publicly incited people not to obey the racial segregation law … It is a classic debate in any jurisprudential class whether the law asking the Germans to kill the Jews are law even when such law has been duly passed by Parliament … Whether the current NPCSC decision has reached that kind of intensity is a matter of debate, on which there could be different opinions. Which opinion one adopts is basically a political choice, and the last thing a respectable academic institution should do is to penalise someone simply because we do not agree with his political choice."

In other words, if a law professor in Hong Kong chooses to consider the Chinese government as the equivalent of Nazi Germany and organises mass illegal demonstrations to force the resignation of the chief executive, such is his personal political choice and not the concern of HKU.

Chan could rest assured that such was the position of the dean of the law faculty and his views also appear to be shared by the vice-chancellor.

I replied at the time, formally to the "law graduate", that I did not see how any reasonable person could compare the current National People's Congress Standing Committee decision with the Nazi murder of Jews and the point was not whether an academic institution should punish a person for his political choices, but whether it should remain neutral in the face of the person breaking the law and/or advocating breaking the law. In a further response which excluded the "law graduate", Chan replied, in a long email about degradingly unjust laws:

"The proper question should be whether the choice to break the law which is unjust (or perceived by a significant number of the members of the community to be unjust) should be punished by the employer of the instigator, when the instigator has not been in breach of his contractual duty? ... One may think that universal suffrage is not important; yet one cannot deny that there are people holding very strong views on democracy and dedicating their lives to it in many parts of the world. This is the political choice that I refer to in my previous email."

In other words, Chan sees Occupy Central as part of a worldwide struggle for democracy. If staff and students of HKU decide to break the laws of Hong Kong with a view to compelling a change of government, that is fine with him as long as they fulfil their contractual duties to the university. 

He understands academic freedom specifically to mean that the university should not concern itself with staff and students' political activities, however illegal, if they do not interfere with the internal life of the university.

For staff at least, that means the university provides a shield and a base from which to launch into such activities. In this, he has the support of the present vice-chancellor.

As the pro-vice-chancellor for staffing and human resources, Chan would have the authority to oversee every contract extension, tenure and promotion application in the university. He would have the authority to choose two representatives of the vice-chancellor on the promotions and tenure committees of all the faculties, one of whom would chair the committees.

Obviously, the council is influenced by political considerations. It is only to be expected that the pro-government and pro-Beijing factions will avail themselves of the institutional advantages which they have, under the colonial-style constitution of the council, to resist Chan's appointment. The whole controversy is only one incident in a global battle whose end is not yet in sight.

Professor Tony Carty was Sir Y K Pao Chair in Public Law at the Faculty of Law, University of Hong Kong, from April 2009 until June 2015