SECRETARY FOR JUSTICE v. COMMISSION OF INQUIRY ON ALLEGATIONS RELATING TO THE HONG KONG INSTITUTE OF EDUCATION

    HCAL 108/2007

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST no. 108 of 2007

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court) :

Introduction

1.  Art.136 of the Basic Law provides that the Government of Hong Kong shall be responsible for the territory’s system of education.  It reads :

“On the basis of the previous educational system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of education, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system, the system of academic awards and the recognition of educational qualifications.”

2.  In 1997 and the years following, pursuant to its mandate under the Basic Law, Government set about the task of formulating and implementing wide-ranging reforms in education.  However, many of the reforms met with opposition from the teaching profession and criticism from academics who specialised in the field of education.

3.  A number of the critics of Government’s education reforms were on the faculty of the Hong Kong Institute of Education, an institution of higher learning dedicated to teacher training and funded by Government through a body called the University Grants Committee.

4.  Just as the Basic Law gives the responsibility to Government for formulating and developing Hong Kong’s system of education, the Basic Law also protects educational institutions, guarding their autonomy and guaranteeing their enjoyment of academic freedom.  In this regard, art.137 reads :

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

5.  In early 2007, however, allegations were made that senior Government officials had made improper attacks on the autonomy of the Hong Kong Institute of Education, attempting to undermine its right of academic freedom.  These attacks included threats of future action by Government which would prejudice the Institute and requests that more vocal critics of Government reforms and policies be silenced and/or dismissed.  These allegations gave rise to widespread media coverage and some disquiet in the community.

6.  Arising out of these events, in February 2007 the Chief Executive in Council appointed a Commission of Inquiry under the Commissions of Inquiry Ordinance, Cap 86.  The Commission’s terms of reference included a mandate to ascertain the facts relevant to a series of incidents in which it was alleged there had been improper pressure and, in addition, by way of general conclusion, the Commission was asked to determine whether there had been any improper attack on the Institute’s academic freedom.

7.  The Commission was composed of Mr Justice Yeung JA, sitting as Commissioner and Chairman, and Mr Lee Jark Pui JP, sitting as the second Commissioner.  The Commission commenced its hearings in late March 2007.  Its report – The Report of the Commission of Inquiry on Allegations Relating to the Hong Kong Institute of Education – was published in June 2007.

8.  One aspect – and one aspect only – of the report has given rise to this application for judicial review.

9.  In the report, the Commission criticised certain approaches made by a senior Government official, Mrs Fanny Law, to Mr Ip, a member of the faculty of the Institute of Education.  Mr Ip had criticised Government’s educational policies and Mrs Law had contacted him direct, seemingly in an ill-tempered manner, to remonstrate with him as to the validity of his criticisms.  Mr Ip, it appears, was neither converted nor cowered into submission; indeed, he gave as good as he got with a public response to Mrs Law.

10.  Nevertheless, the Commission found that Mrs Law’s direct approach to Mr Ip to remonstrate with him constituted an attack on his academic freedom.  The Commission concluded that Mrs Law should have realised that her views would be taken as representative of Government and that, in the circumstances, she should have expressed her views ‘through proper channels’; that is, through ‘the media or open fora’ rather than in a manner which gave, at the very least, the semblance of ‘intimidation and reprisal’.

11.  The Secretary for Education, on whose behalf this application for judicial review has been brought, is of the opinion that these findings of the Commission go beyond findings of fact limited to their own circumstances and constitute the definition of a prohibitive principle.

12.  But why should a remedy be sought from this Court?  Mr Beloff QC, leading counsel for the Secretary, has explained the need for a remedy in the following terms.  A prohibitive principle against senior Government officials complaining or protesting to an academic, he said, constitutes a restriction of the senior civil servant’s freedom of expression and communication of ideas which is “blanket” in nature or, put another way, is overbroad.  Such a principle would also have a “chilling effect” on such officials, deterring them from exercising their freedom of expression to academics and, importantly, limiting the range of acceptable dealings between these officials and academics.

13.  The Secretary for Education has therefore sought either a formal declaration, or clear guidance coming out of this judgment, to the effect that if, in light of criticisms of Government policy made by an academic, a senior Government official has a direct confrontation with the academic in order to remonstrate as to the validity of the criticisms, that fact alone, even if the remonstration is robust, cannot constitute an interference with academic freedom, the more so when the Government official exercises no compulsory powers over the academic.

14.  In the alternative, Mr Beloff has said that, if we should find that the Commission did not lay down any principle, then, having regard to the manner in which the report was worded, we should nevertheless state that fact in unequivocal terms; that is, that the Commission did not lay down any principle which Government officials are obliged to follow.

The Commission’s findings concerning Mrs Law

15.  In the Commission’s terms of reference given to it by the Chief Executive in Council there was one allegation concerning Mrs Law.  It was to the effect that on four separate occasions between October 2002 and April 2005 she had telephoned Professor Paul Morris, President of the Institute of Education, requesting him to dismiss certain members of the faculty who had published criticisms of Government’s educational reforms.

16.  In its report, the Commission found this allegation to be only “partially established”, stating :

“Mrs Law complained, on unspecified occasions, to Professor Morris against Mr Ip and Professor Cheng because the seminar organised by Mr Ip, and the contents of Mr Ip’s and Professor Cheng’s newspaper articles, obstructed the smooth implementation of the Education Reforms and education policy.  Mrs Law requested that Professor Morris try to curb Mr Ip’s and Professor Cheng’s criticisms, although she did not demand their dismissal.” 

17.  The Commission went on to say that, even though there had been no request for the dismissal of the two faculty members -

“Mrs Law’s complaints, even if well-intended, were improper and constituted an improper interference with Mr Ip’s and Professor Cheng’s academic freedom.”

18.  No complaint has been made as to the correctness of the Commission’s finding that Mrs Law’s indirect approach; that is, her approach to the superior of the academics, was improper.  However, during the hearing it emerged that Mrs Law had also made two direct approaches to Mr Ip, to remonstrate with him concerning his criticisms of Government reforms and policies.  The findings of the Commission in respect of these two direct approaches, both over the phone, were to the following effect :

(i)      On 30 October 2002, Mrs Law complained to Mr Ip about a seminar promoting small class teaching which had been held the previous day.  ‘Small class teaching’ was a proposed form of class organisation – not adopted by Government – arising out of the decrease in the population of children of primary school age.  Mrs Law ‘reprimanded’ Mr Ip for inviting a particular speaker to the seminar and asked for a copy of the video recording of the seminar.

(ii)              On or about 15 December 2003, Mrs Law and Mr Ip had an argument concerning a number of articles published by Mr Ip on the increased workload of teachers under the education reforms.  Mrs Law said that Mr Ip’s arguments had no foundation and were just “loose talk”.  She said that Mr Ip should be teaching others how to do “composition” in order to lesson their workload.  She also accused Mr Ip of “shirking responsibility” before hanging up.

19.  It does not appear that Mrs Law, whatever the level of her aggressiveness, actually made any threat against Mr Ip of some future action that would harm him or harm the Institute of Education.

20.  As to the character of Mrs Law, the Commission said that she –

“…. admitted to being a forthright person; others called her impetuous and intolerant of dissenting views.  In any case, she did not shy from or hesitate to make complaints.”

21.  But that being said, the Commission recognised that Mrs Law -

“…. a conscientious and responsible Government official with a long and illustrious history of public service, was understandably disheartened by the negativity from the education sector towards the Education Reforms or education policy and its implementation that she was obliged to promote and did promote with the best possible intentions.”

22.  The Commission further recognised that Mrs Law may well have believed that the criticisms were ‘insincere, incorrect or unjustified’ and that they were doing more harm than good :

“Mrs Law had openly stated her concern about the portrayals in the media of teachers as overworked, harassed, and demoralized despite the Education and Manpower Bureau’s promotion of a positive image of their profession.  She said she wanted to stop such negative portrayals, which she believed discouraged young people from becoming teachers.  Mrs Law also said she wanted to avoid a bad impression of teachers in the business community as the business community did not see teachers as more overworked than their employees.

Mr Law said when she came across newspaper articles that contained ‘gross inaccuracies or misunderstanding’, she would, if possible, contact the writers personally to clarify the misunderstanding, narrow their differences and hopefully establish some common ground.”

23.  The Commission further recognised that Mrs Law might have believed –

“…. that the teaching profession, particularly staff members of [the Institute of Education] had an obligation to co-operate with the Government to ensure the smooth implementation of the education reforms and education policy, which she believed was in the best public interest.”

24.  The Commission further observed that, on the facts found, the integrity of academic freedom in Hong Kong had not been adversely affected.

25.  But whether or not academic freedom had been undermined, and notwithstanding Mrs Law’s bona fide intentions, the Commission condemned her practice of direct confrontation :

“…. the above possibilities did not constitute, individually or collectively, an excuse, let alone a justification, for Mrs Law’s direct and personal protestation to staff of [the Institute].”

26.  In speaking of Mrs Law’s direct and indirect approaches, the Commission said :

“Even if the criticisms expressed by Mr Ip and Professor Cheng were completely unfounded and unsupported, and were mere ‘loose talks [sic]’, they should have been free from political interference by any Government official.  Mrs law had no right to stop those criticisms, with or without enlisting the help of Professor Morris.” [our emphasis]

27.  The Commission continued :

“ ….. Mrs Law, as the second most senior official in charge of education, should have realized that her views on education could never have been simply personal, but were necessarily, to an obvious extent, representative of the Government.

It was unacceptable that she did not express her opinions openly and through proper channels, but instead in a manner with the semblance, if not also the substance, of intimidation and reprisal.  The Commission disapproves such behaviour unequivocally.

If Mrs Law disagreed to Mr Ip’s and Professor Cheng’s views, she could and should have challenged them in the media or open fora.

Complaining or protesting to the critics directly or through their superiors could have inhibited their will and ability to speak their mind and communicate their ideas, and therefore an improper interference with their academic freedom.” 

Did the Commission seek to lay down a prohibitive principle?

28.  Mr Fok SC, who acted as amicus curiae, cautioned that the Commission’s report should be carefully examined before any finding was made that the Commission did anything more than limit itself to a finding of fact which determined the propriety of certain specific exchanges between certain named individuals.  As Mr Fok expressed it, unless we are able to come to a finding that the Commission sought to lay down a prohibitive principle or, at least, a prescriptive norm, it is questionable whether there is any decision that is reviewable or whether the Secretary for Education has any standing.

29.  The issue is not the easiest to resolve.  Clearly, the Commission’s primary concern was to come to specific findings of fact as to the circumstances of Mrs Law’s direct approaches, taking into account factual matters specific to those circumstances; for example, Mrs Law’s character, her possible motives and the content and colour of what was actually said. 

30.  But the Commission did emphasise the following :

(i)       that Mrs Law was a senior representative of Government;

(ii)      that complaining directly in the manner she did, while it may not seemingly have any repressive effect, could have had that effect;

(iii)     that accordingly it amounted to an improper interference of a “political” nature, not with Mr Ip’s freedom of expression, a right guaranteed to all Hong Kong residents, including Mrs Law, by art.30 of the Basic Law, but rather his right to academic freedom under art.137; and

(iv)     that Mrs Law’s disagreement should not have been expressed in this private and direct manner but rather through some more public means, in the media or in public debate.

31.  From those findings it emerges, we think, that the Commission sought not only to determine the propriety of Mrs Law’s actions but also to formulate more general guidance.  Whether that guidance may properly be elevated to a prohibitive principle is debatable.  We think it may more confidently be said that, moving from the specific to the general, the Commission did seek to lay down a prescriptive norm; that is, a statement of what is generally to be expected as the correct (and therefore customary) mode of conduct.

32.  But that being said, whether we talk of a principle, a norm or simply guidance, we accept that there is a single practical result; namely, that senior civil servants may in future feel constrained as to the manner in which they may deal directly with academics, fearful that any form of direct exchange involving criticism on their part may leave them open to an accusation of seeking to undermine academic freedom. 

33.  For that reason – and without in any way criticising the Commission’s findings of fact as to the direct exchanges between Mrs Law and Mr Ip – we are satisfied that some further clarification is of importance.

34.  We appreciate that common law courts exercise caution before giving what may be classified as an advisory judgment.  In the present case, however, this court’s judgment will not be based on purely hypothetical facts and equally hypothetical issues arising out of those facts.  The events in question did take place and were adjudicated upon by the Commission which made important pronouncements as to the ramifications of such events.  We are also satisfied that events of a similar kind – events that is, involving direct contact between public administrators and academics concerning differences of opinion – are almost certain to arise in the future and there is practical utility therefore in giving a judgment.

Are the Commission’s findings and recommendations reviewable?

35.  The Commission was appointed pursuant to s.2(1) of the Commissions of Inquiry Ordinance which provides that :

“The Chief Executive in Council may appoint one or more Commissioners (hereinafter referred to as a Commission) to inquire into the conduct or management of any public body, the conduct of any public officer or into any matter whatsoever which is, in his opinion, of public importance.”

36.  The Commission was therefore a creature of statute, its powers set and limited by the Ordinance.  The powers given to it included the power to summon any person to give evidence, to issue warrants for the arrest of persons who had not complied with such a summons and to issue search warrants.  The Commission’s process of inquiry was deemed to be a judicial proceeding and all persons implicated in the inquiry were entitled to legal representation.

37.  As to the function of the Commission, it was manifestly public in nature, affecting the rights and legitimate expectations of all those implicated in the inquiry as well as being of importance to the public at large.  Its mandate was to report to the Chief Executive in Council. 

38.  It is true, of course that the Commission had no power consequent upon its findings to award damages or impose penalties.  Its power was limited to reporting to the Chief Executive in Council.  But, as Lord Denning MR said in respect of a Board of Trade Inspectors appointed under the Companies Act 1948:

“…. this should not lead us to minimise the significance of their task.  They have to make a report which may have wide repercussions.  They may, if they think fit, make findings of fact which are very damaging to those whom they name.  They may accuse some; they may condemn others; they may ruin reputations or careers.

Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly.”  [In re Pergamon Press Ltd [1971] Ch 388]

39.  If the Commission in this instance had a duty to act fairly, it also had a duty to ensure that its findings on the merits were rational.  In this regard, in Mahon v Air New Zealand [1984] 1 AC 808 the Privy Council said that :

“…. the rules of natural justice required the judge as a Royal Commissioner investigating the cause and circumstances of the accident to make findings based upon material that logically tended to show the existence of facts consistent with those findings and, if he disclosed his reasons to support those findings, to ensure that the reasoning was not self-contradictory ….”  [per the headnote to the judgment]

40.  If the Commission had a duty to act fairly and to come to findings rationally available to it on the evidence, it must also have had the duty to ensure that any finding, recommendation or the setting of any principle or norm complied with law.

41.  In summary therefore, as we see it, the Commission was manifestly a public body, exercising its powers under statute.  It exercised its powers in the public interest in a form of judicial proceedings.  Its findings - directly and indirectly - were capable of affecting the rights of individuals.  But under the Ordinance those individuals are not afforded any stated avenue of redress.

42.  In such circumstances, we are satisfied that the Commission is in principle amenable to judicial review.

The standing of the Secretary for Education

43.  Under O.15, r.3(7) of the Rules of the High Court, an applicant for judicial review is required to show that he has a ‘sufficient interest in the matter to which the application relates’.

44.  Clearly, the findings of the Commission have direct relevance to the manner in which senior Government officials may, to use a neutral phrase, exchange views with academics in respect of matters relating to education.  Equally clearly, that may well have an effect on the implementation and progress of educational policy and may therefore impact on the public good.

45.  We are of the view that the concerns of the Secretary for Education are real and practical concerns.  Accordingly, we are satisfied that the Secretary for Education does have sufficient standing.

The concept of ‘academic freedom’

46.  ‘Academic freedom’ is a difficult concept to define.  Mr Beloff described the concept as being multi-faceted.  A number of courts in the United States have wrestled with the difficulty that its parameters are ill-defined.

47.  In Clark v University of Melbourne [1978] VR 457 Kaye J spoke of the traditional meaning of academic freedom being the “unimpeded freedom to teach, to study, and to research without any external control either of the teaching staff or the curriculum of the tertiary institution”.

48.  Pursuant to art.34 of the Basic Law, all persons have the “freedom to engage in academic research, literary and artistic creation and other cultural activities”.  Equally, pursuant to art.30, all persons enjoy the right to “the freedom …… of communication”.  However, while the major constituent parts of any definition of academic freedom must include freedom to engage in academic research and freedom to communicate, the concept of academic freedom under the Basic Law is not defined as being simply a part of either of those freedoms and would appear to be recognised as an independent, self-contained freedom.  Nowhere does the phrase ‘academic freedom’ appear in Chapter III of the Basic Law which lists the fundamental rights of Hong Kong residents.  Instead, the phrase appears in Chapter VI (which bears the heading : Education, Science, Culture, Sports, Religion, Labour and Social Services).  In this respect, to cite art.137 again, it provides that –

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

49.  Without deciding the issue, we understand the phrase “educational institutions of all kinds” to refer to institutions of higher learning, universities and the like where, in all open and democratic societies, autonomy and academic freedom are essential to their functioning.

50.  Art.137, in our judgment, recognises academic freedom as being vested not in all individual academics but rather in Hong Kong’s educational institutions; the autonomy of those institutions being a prerequisite of academic freedom.

51.  Academic freedom may be recognised as an ‘institutional’ freedom rather than one that is ‘personal’.  In this regard, for example, see the judgment of Frankfurter J in Sweezy v New Hampshire, 354 US 234 (1957) when he adopted a statement of principle made by academics of certain South African universities.  That statement spoke of the ‘business of a university’ being –

“… to provide that atmosphere which is most conductive to speculation, experiment and creation.  It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

52.  This is the ‘business of a university’ because, as the statement said :

“A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest.  A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates – ‘to follow the argument where it leads’.  This implies the right to examine, question, modify or reject traditional ideas and beliefs.  Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university.”

53.  In a report dated 26 August 2000 addressed to the Council of the University of Hong Kong, an independent investigation panel commenced its definition of academic freedom by saying :

“Traditionally academic freedom refers to the liberty of a person to carry on intellectual investigation in a scholarly manner within the structure of the academic community.”  [our emphasis]

54.  It is to be noted, however, that a number of jurisdictions do not recognise academic freedom as being autonomous, a fully self-contained freedom, but see it rather as a constituent part of the broader right to freedom of expression.  In the United States, the concept arises out of the right of freedom of speech guaranteed by the First Amendment while the South African Constitution provides that :

“(1) Everyone has the right to freedom of expression, which includes –

(a)               freedom of the press and other media;

(b)              freedom to receive or impart information or ideas;

(c)               freedom of artistic creativity; and

(d)              academic freedom and freedom of scientific research.”

[our emphasis]

55.  As we have indicated, we are of the view that art.137 of the Basic Law recognises academic freedom as a self-contained freedom, one that is vested in Hong Kong’s educational institutions, enabling them to determine for themselves on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

56.  But that being said, the academic community of an educational institution is in many ways the embodiment of the institution itself.  In our view, academic freedom vested in an educational institution must therefore extend not simply to the administration of that institution but to the faculty of academics too, giving it freedom to pursue the search for knowledge without fear of external sanction.

57.  The extent to which art.137 determines the nature and extent of internal relationships between an educational institution and its academic faculty is not an issue which arises in this judgment.

58.  In our view, however, if an academic chooses to publish the result of his research, he is, as an individual, in no better position than any other Hong Kong resident who chooses to disseminate his opinions in the public domain.  As was said in Riggs v University of Waikato [1984] 1 W22R 148, at 207 :

“… we are unable to accept the notion, as propounded to us by Mr Rigg, that there is some kind of freedom of expression, relevant to the present case, which cannot be correctly defined as academic freedom of expression in the strict sense yet is enjoyed by academics when speaking in their capacity “as members of the university community” or “citizens of the university” and is greater than any freedom of expression enjoyed by ordinary citizens in ordinary life.”

59.  Academic work that is published is protected by art.30 of the Basic Law, protecting freedom of communication and art.16(2) of the Hong Kong Bill of Rights which provides that :

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

60.  Freedom of expression is a freedom enjoyed by all Hong Kong residents.  In the factual context of the present case, as the Commission recognised, Mrs Law had equal enjoyment of the right as Mr Ip.

61.  The freedom to express views and to criticise others’ views is not qualitative.  It is not therefore deprived of protection because it is strident, misguided or of no merit.

62.  It must also be said that, when two sides debate conflicting opinions, it is invariably the primary aim of one side to persuade the other to change its opinions.  That of itself is a legitimate aim.

63.  It is, of course, fundamental that freedom of expression must, and does, allow for the expression of contrary views.

64.  In its General Comments (No. 13) of 1999, the United Nations Committee on Economic, Social and Cultural Rights, speaking of the obligations inherent in academic freedom, said that they included “the duty to respect the academic freedom of others” and “to ensure the fair discussion of contrary views”.

65.  As Mr Beloff expressed it, summarising the observations of Lord Nicholls in his speech in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, at 200, the freedom to express views on matters of public controversy is at the core of the guarantee of free speech throughout the common law world.  We agree with that observation.

66.  But freedom of expression is not an absolute right.  In this respect, art.16(3) of the Hong Kong Bill of Rights reads :

“The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary –

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (order public), or of public health or morals.”

The violation of academic freedom

67.  As Lord Nicholls observed in Reynolds v Times Newspapers, (supra), “the high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration”.

68.  For any curtailment of freedom of expression to be justified, it must be established by a compelling countervailing consideration.

69.  Within the factual context of the present case, the essential issue, it seems to us, is one of degree and that must always be judged in context.  The issue may be described in the following question.  At what point does an expression of contrary views by a senior public administrator expressed in private to an academic constitute an unlawful attack on academic freedom under art.137?

70.  In our judgement, in the context of the factual issues considered by the Commission, it constitutes an unlawful attack when an expression of contrary views contains, directly or by implication, a threat of sanction against the institution itself or against the academic by a person who is in a position of authority with the power, actual or ostensible, to bring about the imposition of that sanction.

71.  Following United States’ jurisprudence, Mr Beloff proposed that, for a threat of sanction to amount to a constitutional violation, it should be a threat of immediate sanction.  In our view, that rider is not necessary.  A threat by a senior government official to impose some sanction on an educational institution; for example, to bring about a reduction in funding, may be a threat which can only be realised in a year or more.  The wheels of public administration grind slowly.  But nevertheless it remains very much a threat.  However, a threat of some distant sanction may be so remote as to constitute no threat at all.  Context is everything.

72.  The Commission recognised that during her direct confrontations with Mr Ip, Mrs Law had not made any direct threats.  The Commission found however that she had engaged Mr Ip in a manner that, at the least, gave the semblance of intimidation and reprisal.  The constitutional violation therefore, so it would appear, lay in the deterrent or “chilling effect” of Mrs Law’s actions, it being remembered that she was a very senior member of Government and would, ostensibly at least, have had held some compulsive power over the Institute of Education even if only indirectly.

73.  Invariably, it is government which holds the purse strings.  Invariably, therefore academia finds itself in a position of some vulnerability when it is in conflict with senior public administrators.  On that basis, it may be said that any confrontational approach made by a senior member of government directly to an academic in order to criticise that academic’s published opinions would have a chilling effect, the more senior the government member the more chilling the effect.  But that alone is insufficient.  In our judgment, what is required, on an objective assessment, is that it must be implicit in the whole manner of the approach and its circumstances that it contains a threat of sanction against the institution of which the academic is a faculty member or the academic himself and that it is a threat from a person who is in a position of authority, with the power, actual or ostensible, to bring about the imposition of that sanction.

Conclusions

74.  Whatever the perception may be, academics today are not cloistered in ivory towers divorced from the realities of the world.  To the contrary, academics work in association with both the private sector and the public in all areas of advancement.  This applies not only in respect of scientific and technological innovation but in areas of law reform, social welfare and the like.  Academia, with its intellectual rigour, also plays an important role in analysing and, if necessary, criticising the nature and effectiveness of public policies and measures.

75.  To misunderstand the Commission (which came to its findings within the context of very particular facts) and to suggest that senior public administrators and academics should never be able to privately engage in robust debate over matters of opinion and policy, the one criticising the other, is, in our view, not only artificial and stultifying, it has no basis in law.  We do not see that it would be improper for a senior official to privately engage an academic in order to state Government’s views, even to the extent of arguing that the academic should in the result change his or her views.  That is all part of the ebb and flow of free debate.

76.  Accordingly, the fact that a senior public administrator privately confronts an academic to criticise that academic’s published opinions on any particular matter does not itself constitute a violation of art.137 or the academic’s own right to freedom of expression.  It only does so when the confrontation contains, directly or by implication, a threat of sanction of the kind we have described earlier in this judgment.  That, as we see it, is the position in law.

77.  For the reasons given in this judgment, clarifying an important point of law, we therefore grant the application for judicial review.  As for a remedy, in our view, any form of declaratory relief would be overly cumbersome.  As Mr Beloff envisaged, we prefer to let this judgment speak for itself.  The principles, we hope, emerge clearly enough.

Amicus Curiae

78.  Finally, we would like to thank Mr Fok for his in-depth research,

analysis and finely balanced advocacy in the role of amicus.  It was of great assistance to us.