THE CATHOLIC DIOCESE OF HONG KONG ALSO KNOWN AS THE BISHOP OF THE ROMAN CATHOLIC CHURCH IN HONG KONG INCORPORATION v. SECRETARY FOR JUSTICE

cacv 18/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 18 of 2007

(on appeal from HCAL NO. 157 of 2005)

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Dates of Hearing: 17 and 18 November 2009

Date of Handing Down Judgment: 3 February 2010

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J U D G M E N T

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Hon StockVP:

Introduction

1.  On 1 January 2005 the Education (Amendment) Ordinance (2004) came into effect.  Its purpose is to enforce a policy of school-based management in all aided schools.

2.  The Catholic Diocese of Hong Kong, also known as the Bishop of the Roman Catholic Church in Hong Kong Incorporation, is a corporation sole, led by the Bishop assisted by religious Sisters and Brothers belonging to the Diocese and by a number of missionary societies.  The Catholic Diocese is the applicant in the judicial review proceedings with which this appeal is concerned.

3.  The applicant has for many years been the sponsoring body of a significant number of aided schools in Hong Kong.  An aided school is a school that receives subsidies from the Hong Kong Government in accordance with codes of aid.

4.  It is the applicant’s case that the 2004 enactment has materially altered the way in which it is permitted to operate the schools of which it is sponsor, most especially in that management of schools is now devolved to individual schools and that the scheme imports as managers those who do not or might not share or be imbued with the Catholic vision and ethos which is at the heart of the applicant’s spiritual and educational mission.

5.  This appeal addresses the applicant’s contentions that the managerial changes thus imposed upon it are constitutionally impermissible because, insofar as they apply to aided schools run by the applicant:

(1) they are not formulated on the basis of the educational system prevailing before July 1997, so that art. 136(1) of the Basic Law is thereby breached;

(2) they remove the educational autonomy of the applicant or of the aided schools which it runs, a breach of art. 137 of the Basic Law; and

(3) they prevent the applicant from running aided schools according to its previous practice, so that art. 141(3) is infringed.

6.  By a judgment dated 23 November 2006 A Cheung J held against the applicant on all three issues.  This is the appeal from that judgment.

7.  There is a question whether the legislation has indeed materially altered the control exercised by the applicant over the management of schools which it runs.  The learned judge determined that there was a material change and the respondent challenges that finding in a respondent’s notice.  However it is convenient for the present to approach the analysis on the assumption that there has been such a material change.

Categories of school

8.  The structure of primary and secondary education in Hong Kong and the history of the development of school-based management (SBM) is rehearsed in full and, if I may say so, with admirable clarity in the judgment of Cheung J.  It will suffice for immediate purposes if I here attempt a summary of that exposition.

9.  Schools in Hong Kong include Government schools, aided schools, Direct Subsidy Scheme schools, private schools and international schools.

10.  A Government school is one that is operated directly by the Education and Manpower Bureau (EMB).  An aided school is defined by the Ordinance[1] as one that receives subsidies from the Government in accordance with codes of aid: a code of aid for primary schools, a code of aid for secondary schools, or a code of aid for special schools.  A Direct Subsidy Schemes school is one that receives a subsidy directly from the Government on such terms and conditions as are from time to time specified by the Government.  Private schools offer a local curriculum and are self-financing.  International schools are operated with a curriculum designed for the needs of a particular group or for students wishing to pursue overseas studies; some of these receive financial help from the Government.

11.  We are concerned in this case with aided primary and secondary schools.

12.  The Government invests heavily in education.  The evidence is that the annual subvention for the year 2004 for aided schools alone amounted to $24 billion.

13.  Most schools in Hong Kong are aided schools.  Out of a total of 1234 primary and secondary schools in Hong Kong in the school year 2005-2006 – which was the year that most recently preceded the institution of these proceedings – 935 were aided schools.  Of that number 90 (comprising 63 primary and 27 secondary) were operated by the Diocese.

14.  Organizations which operate aided schools as well as Direct Subsidy Scheme schools are known as school sponsoring bodies.  A sponsoring body in relation to a school “means a society, organization or body (whether incorporated or not) which is approved in writing by the Permanent Secretary [for Education] to be the sponsoring body of the school.”[2]  The applicant is a sponsoring body.  In practical terms, such a body is one that sponsors the school financially at its inception and, with Government financial aid, participates in operating the school thereafter.

The applicant’s historical role in local education

15.  The application for leave to apply for judicial review informs us – and these facts are not in dispute – that the applicant has been participating as a sponsoring body in the provision of education in Hong Kong for about 90 years.  There are other Catholic school sponsoring bodies but in its educational sponsoring function, the Diocese works directly under and is accountable to the Bishop, who is the spiritual head of all Catholics in Hong Kong.  There is an Episcopal Delegate for Education who represents the applicant in the running of Diocesan schools, and whose function is to coordinate and supervise those schools and to ensure that they are operated in accordance with the vision and mission of Catholic education, as well as in accordance with the laws of the Region.

16.  Prior to July 1997 the management of each aided school and therefore of every Diocesan School fell under the charge of a management committee composed of registered managers.  As in the case of the sponsoring bodies of all aided schools, the applicant retained the prerogative of nominating persons to be registered by the Director of Education as managers; to require the management committee to seek its approval for particular actions; to nominate the manager whom the Committee was to recommend to the Director for his approval as the Supervisor of the school; and to select the person who was to be recommended by that Committee to the Director as the principal of a school.

17.  A substantial number of registered managers, nominated by the applicant in accordance with its own criteria, were clergy and religious Sisters.  They were selected because in the opinion of the applicant they were persons who possessed the requisite commitment faithfully to implement the principles of Catholic education.

18.  Effective supervision of management committees in all Diocesan schools was assured by a body known as the Central Management Committee for Diocesan Schools.  Management committees were required to seek the advice or approval of the Episcopal Delegate for Education in respect of proposals for major changes in the operation of a school; for proposed or anticipated personnel changes in key positions in a school; and in matters affecting the image of a school.

19.  A principal of a school might or might not be a member of the Management Committee but selection of principals was carried out by the Selection Committee for the Appointment of Principals of Diocesan Schools, a committee that included the Episcopal Delegate and her assistant, two Catholic priests, the serving principal of a Diocesan school; two representatives from tertiary educational institutions and any other person whom the Bishop saw fit to include.  The Selection Committee’s decision was communicated to the management committee of the particular school and the management committee then recommended that candidate to the Director of Education for his approval.  An appointed principal was required periodically to report to the supervisor of the school and the supervisor in turn provided advice to the principal which accorded with the educational and management policy of the applicant.

20.  The regime thus established was designed to ensure unity of the Diocese in the promulgation of Catholic values in schools and it is this unity which is said effectively to be undermined by the 2004 legislation.  The emphasis is not on the mere fact of structural or managerial unity but on its effect, which is said to be encapsulated in a unity of vision or mission, best understood and best realised by those who share the experience of that mission and the faith that underlies it.  It is said that, by contrast, the new educational regime diffuses the managerial structure and dilutes the composition of the managers in such a way as to denude the applicant’s educational effort of its unique quality and essential character.

The new management regime

21.  The new management regime finds its genesis in a study conducted in 1989 in the context of a public-sector reform programme initiated by the Government.  A substantial growth in school places in the 1970s and 1980s had been achieved almost wholly by expansion of the aided school sector; a growth accompanied by a concern for management efficacy.  The study showed that there were inadequate management structures, poorly defined responsibilities and inadequate performance measures.  The study therefore recommended changes and this resulted in the launch in 1991 of a School Management Initiative (SMI).

22.  At the heart of the Initiative was the policy of school-based management (SBM), a doctrine based on the premise that individual schools are best placed to make decisions about deployment of resources and programme designs according to the needs of the students of that school and, further, that such a framework carried with it the additional advantage of transparency and participation in decision-making by key stakeholders, namely, not only the sponsoring body but also representatives of the teachers, the parents, alumni, and independent members of the community.  The objective is not only to enhance effective management of schools but also to raise the quality of education.  Whether the new measures achieve or will achieve that objective is not an issue in this case; it suffices to state the objective.

23.  According to the evidence of Ms Yau, Acting Principal Assistant Secretary of the EMB at the time of the first instance proceedings, the key elements of SBM included the preparation of a constitution for each School Management Committee (SMC) in order that responsibilities be defined; a wider participation in major decision-making; the development of formal procedures for staff appraisal and the provision of staff resources; the setting of school goals and development plans; evaluation of effectiveness; and the development of a school-based model designed to develop a culture and characteristic unique to the individual school.  The belief is that implementation of SBM would provide greater autonomy, transparency and accountability, with an incentive to aim for continuing improvements so that the interests of students would be better served and public funds used in a more cost-effective manner.

24.  In order to test the recommendations made in 1991 an SMI pilot scheme was instituted in September that year in public-sector schools, including aided schools, on a voluntary basis; an advisory team was formed to provide advice and support to schools and an Advisory Committee on the SMI established.  The scheme was implemented on a voluntary basis in phases over several years: the first phase was for the school years 1991-1992 and 1992-1993; the last phase covered the years 1997–1998 and 1998-1999.  Some schools joined the scheme; others did not.

25.  In 1992 the Education Commission issued a report expressing its support for the principles of SMI as a vehicle by which to improve the quality of school education.

26.  In 1993 there was enacted the Education (Amendment) Ordinance.  One of its provisions, now s. 72A of the Ordinance, assumed some significance in the argument.  Its origin and effect has been helpfully summarised by Cheung J as follows:

“65.      In 1993, following one of the recommendations of the SMI scheme, the Education (Amendment) Bill 1993 was introduced into the Legislative Council to rectify an omission in the law that once a school was registered, the school sponsoring body had no power under the law to control the management committee or operation of the school.  It was also introduced to foster greater accountability on the part of the school sponsoring body for the quality of education provided in its school, and in particular to help facilitate the implementation of the SMI.  The Bill gave SSBs the power to make recommendations to the then Director of Education for the appointment and dismissal of managers or supervisors in their schools.

66.       The Bill resulted in the addition of a new section 72A to the Education Ordinance with effect from 1 January 1994.  Under the new section, the then Director of Education would take into account the views of the school sponsoring body, in addition to taking into account the views of the management committee, concerning various matters, namely (i) the refusal to register an applicant as a manager of the school, (ii) the cancellation of the registration of a manager, (iii) the withdrawal of approval of the supervisor, (iv) the approval of subsequent supervisors and (v) the approval of the acting supervisor.  Under section 72A, a SSB could express its views on those five matters, and where the management committee had expressed its views on the same also, the views of the former would prevail in case of conflict.  This is the so-called “guarantee of priority” that the applicant says the 2004 amendments have wrongfully removed.

67.       However, in the present context, it can be seen that the so-called guarantee of priority was quite clearly introduced to the legislative framework to facilitate the implementation of the school management initiative, which, the Government says, eventually evolved into the 2004 amendments.”[3] 

27.  In 1995 a task group was established to review the implementation of the SMI.  In its report, it recommended full implementation of the SMI management framework within five years from 1996.  It also recommended that schools could opt for either a one-tier or two-tier SMC constitution.  The two-tier constitution permitted bodies sponsoring many schools to operate through a single SMC but still giving effect to school-based management by establishing for each school an advisory council comprising managers, parents, teachers and others.

28.  In 1996 the Education Commission set up a Task Group on School Quality and School Funding.  It found that there was a general lack of quality culture in the existing school system and that members of the school community had expressed concern that the system was not sufficiently geared to initiatives by schools and to the achievement of quality education.  It made a number of recommendations including the need to establish accepted goals that would be clearly understood by those in the school system; permitting greater autonomy in school management, finance and personnel matters yet requiring a higher degree of accountability; and the establishment of an efficient school funding system.  It issued a consultation document in November 1996 which recommended the adoption of SBM by all schools by the year 2000.  Its report was published in September 1997 and recommended that all schools should have SBM in place by the year 2000.

29.  In 1998, there was established yet another committee: the Advisory Committee on School-based Management.  That Committee recommended greater accountability on the part of individual schools by the establishment of a coherent management framework involving various key stakeholders and that in order to avoid incurring personal liability for the performance of school managers’ duties, SMCs should be registered as a legal entity.  It further recommended that each SMC should include managers nominated by the school’s sponsoring body who might constitute over 50% of the total membership, as well as the principal, two teacher managers, two parent managers, and others.

30.  A consultation document was issued, a panel of the Legislative Council was briefed on the outcome of the consultation, and final recommendations were issued in January 2001 which included the recommendation that the school sponsoring body be permitted to appoint up to 60% of the members of the SMC.

31.  A survey conducted in March 2003 found that only 16% of schools had set up SMCs with parent and teacher representatives.  It was evident that the voluntary scheme had failed to achieve its objective and the Government took the view that it was necessary to legislate.

32.  The Bill was passed on 8 July 2004 and the Ordinance with which we are concerned came into operation on 1 January 2005.

The Ordinance

33.  The provisions which the applicant seeks to impugn are in Part IIIB of the Ordinance.

34.  Section 40BK provides that the sponsoring body of an aided school without an IMC, and which has commenced operation before 1 January 2005 shall, by 1 July 2011[4], submit to the Permanent Secretary of Education and Manpower a draft of the constitution of the school’s proposed IMC.  Section 40BU applies to an aided school the scheduled opening date of which falls on or after 1 January 2005 in which case the sponsoring body is required to submit a draft constitution and an application for registration of the school no later than six months before the scheduled opening date or by such later date as the Permanent Secretary may approve.  The Permanent Secretary may approve or refuse to approve the draft.[5]  Failure to comply with the requirements of s. 40BK may result in the appointment by the Permanent Secretary of one or more persons to be the managers of the school or cancellation of the registration of any manager of the school.[6]  Failure to comply with the requirements of s. 40BU may result in the termination of any agreement between the Government and the sponsoring body in relation to the sponsorship and subsidization of the school.[7]

35.  An IMC is required to be constituted in accordance with the constitution of the committee[8], the responsibility for the drafting of which is reposed in the sponsoring body[9].

36.  Section 40AL of the Ordinance provides for composition of the IMC.  It is to comprise “such number of sponsoring body manager as the school sponsoring body may nominate” so long as the numbers of sponsoring body manager “shall not exceed 60% of the maximum number of managers that the [IMC] may have under its constitution”; the school principal; at least one teacher manager; at least one parent manager; one or more alumni managers; and at least one independent manager.[10] 

37.  Section 72A – the provision that conferred, according to the applicant’s case, a “guarantee of priority” – now applies only to schools without an IMC, so that the so-called priority has been removed in the case of aided schools.

38.  The duties imposed upon a sponsoring body include “setting the vision and mission for the school”; “ensuring, through the sponsoring body managers, that the mission is carried out”; “giving general directions to the [IMC] in the formulation of education policies of the school”; “overseeing the performance of the [IMC]”; and, as previously mentioned, drafting the constitution of the IMC.[11]

39.  It is provided that the IMC shall be responsible for “formulating education policies of the school in accordance with the vision and mission set by the sponsoring body”; “planning and managing financial and human resources available to the school”; “accounting to the Permanent Secretary and the sponsoring body for the performance of the school”; “ensuring that the mission of the school is carried out”; “ensuring that the education of the pupils of the school is promoted in a proper manner”; and “school planning and self-improvement of the school.”[12]

40.  Each school is to have a supervisor who must be a manager of the school and be appointed either by the sponsoring body or elected by the managers of the school in accordance with the constitution of the IMC.[13]  His function is to preside over IMC meetings, perform such functions as are provided for in the IMC constitution and give notice of certain events to the Permanent Secretary.[14]

41.  Sponsoring body managers are to be nominated by the sponsoring body[15]; teacher managers by the principal of the school[16]; parent managers by the parent teacher association recognized by the IMC[17]; alumni managers by the alumni association recognized by the IMC or sponsoring body[18]; and independent managers by the IMC[19].

42.  The Ordinance introduces the method by which the principal of an IMC school is to be selected.[20]  The IMC is required to appoint a principal selection committee composed of representatives of the sponsoring body, managers of the school acting as representatives of the IMC and such other persons as may be provided for in the constitution of the IMC.  The person selected by the selection committee shall be recommended by the IMC to the Permanent Secretary.

The differences and their suggested effect

43.  The applicant’s case is that the legislation effects seven material changes to the manner in which it was previously able to operate schools of which it was the sponsoring body.  The respondent says that the effect of these changes has been exaggerated by the applicant.

(1) The obligatory submission of constitutions and the incorporation of management bodies.  There was previously no such requirement.  The constitution must provide for the composition of the IMC and for the nomination of the various managers and enables the composition of the principal selection committee to be affected.  The Permanent Secretary is empowered to refuse to approve the draft constitution on the footing that its contents are inconsistent with regulations which the Chief Executive in Council is entitled to make in respect of a variety of matters, including the teaching of certain materials in school.[21]  The suggestion is that under the new provisions the Permanent Secretary is in effective control of the contents of the constitution, a document, it is said in the written argument, “of vital importance to the management of the school setting basic principles by which the school is governed, especially in relation to the rights of individuals it governs.”

(1a) The respondent answers that there has always been a statutory power for the Director of Education to call for the submission of a written constitution for the management committee.  The absolute autonomy suggested by the applicant as previously enjoyed by it is, according to the respondent, an illusion, for the applicant has always been subject to the provisions of legislation and supervision of the Permanent Secretary and/or the Director of Education: see, for example the extensive provisions of the Codes of Aid.  The Permanent Secretary had always the power to cancel the registration of managers and to appoint additional managers.  Moreover the drafting of the constitution is entrusted to the sponsoring body enabling it thereby to counteract many of the inroads it now perceives.

(2) The reduction of representation in management bodies effected by the requirement that the proportion of sponsoring body managers must not exceed 60% of the total number of managers and the concomitant requirement for the nomination by other bodies of teacher, parent, alumni and independent managers.  This goes to the heart of the complaint in this case, for it is said that by reason of this requirement the previous absolute control by the applicant is diluted effecting, therefore, a change in the Catholic identity of Diocesan schools.  The previous regime enabled the realisation of the vision and mission of the applicant because it was able to manage schools through a body fully representative of the applicant; registered managers were all nominated by the applicant according to the applicant’s own criteria.  A substantial number of registered managers in Diocesan schools were clergy and religious Sisters who, in practice, obtained the applicant’s prior approval in all key matters.  What is now introduced is the potential for division and discord by participation in management by those who, at heart, in spirit, in essential belief, are not at one with that vision and mission.

(2a) The respondent points out that the vision and mission of a school is set by the school sponsoring body and that members of the IMC are required, as a matter of law, to act in accordance with that vision and mission.  Furthermore, by reason of its 60% membership majority, the applicant retains effective control over the IMC.  The applicant argues for absolute control, an objective that is at odds with greater transparency and accountability, features that are reasonably required for schools that are publicly funded.

(3) Diminution in the scope of the applicant’s functions.  It is said that the functions of the sponsoring body are circumscribed by s. 40AE, whereas previously they were not.  Previously, it is said, the applicant enjoyed the right to participate in all areas related to a school’s management and operated in the absence of specified boundaries.  Now it is the IMC which is responsible for formulating education policies of the school and although it is acknowledged that it is required to do so “in accordance with the vision and mission set by the sponsoring body”[22], it is not clear what sanctions would lie should the IMC be in breach of that requirement.

(3a)      The respondent contends that this complaint ignores the requirement upon the IMC to act in accordance with the sponsoring body’s vision and mission; the statutory power of the applicant to effect the cancellation of the registration of a sponsoring body manager[23]; and the 60% sponsoring body representation upon the IMC.

(4) Loss of the guarantee of priority. This refers to the repeal, in relation to aided schools, of s. 72A (introduced in 1993) whereby where the Permanent Secretary was minded to refuse to register an applicant as a manager of a school, to approve as supervisor or acting supervisor of a school the manager recommended by the management committee, or to withdraw his approval of the supervisor of a school, he was statutorily bound to take into account not only the views of the management committee but also the views of the sponsoring body (though he was not duty bound to seek that body’s views) and where both the sponsoring body and the management committee had expressed their views, the views of the sponsoring body were to prevail.  The position now is that the Permanent Secretary will approve a list of proposed managers submitted by the sponsoring body if the composition of the proposed IMC complies with the Ordinance and is consistent with the approved IMC constitution and if the Permanent Secretary is satisfied that all proposed managers are fit for registration as managers of the school.[24]  It is suggested that the priority thus accorded the applicant was an essential element of the previous method or regime.

(4a)      The respondent’s riposte is that this complaint is an exaggeration: the ‘guarantee’ was limited to five particular matters and not a question of priority on all matters of management; there was, in any event, no duty upon the Director of Education to seek the views of the sponsoring body; the provision did not guarantee that a school management committee would stay true to the vision and mission of the sponsoring body; and the sponsoring body now has a 60% controlling representation on the IMC.

(5)       Changes concerning the supervisor.  Previously it was the applicant’s practice to nominate candidates who would then be recommended by the management committee to the Director of Education for approval and because of the ‘guarantee of priority’, the applicant’s preference was paramount and decisive.  Now supervisors may be appointed either by the sponsoring body or elected by the managers in accordance with the constitution[25].  Furthermore many of the functions and duties of the supervisor have now been transferred to the IMC and principal.

(5a)      The respondent’s answer is that since the sponsoring body is responsible for drafting the IMC constitution and since s. 40AJ provides that the supervisor must be appointed by the sponsoring body or elected by the managers of the school in accordance with the constitution, it is open to the applicant to draft a constitution accordingly.  As for functions, the management committee is under the effective control of the sponsoring body and there is power in the Ordinance to delegate responsibilities to the supervisor[26]. 

(6)       Changes concerning the principal.  I have earlier outlined the system by which, prior to the 2004 Ordinance, principals of Diocesan schools were selected.[27]  The system has now changed in that the principal is recommended for appointment by a principal selection committee established by the IMC.  Despite the fact that there is no statutory limit on the number of sponsoring body representatives on the principal selection committee and that the constitution of the IMC may provide for nomination by the sponsoring body alone, the complaint is that the new method is a radically different procedure which excludes the Diocesan Selection Committee.  Furthermore, whereas the principal’s functions were previously limited to teaching and discipline within the schools, it has now been expanded in that the principal is an ex officio member of the IMC and his or her functions are subject to the directions of that Committee, a committee that includes non-sponsoring body members.

(6a)      The respondent’s answer is that since the composition of the principal selection committee is determined by the constitution which in turn is drafted by the applicant, the point is without substance.

(7)       Changes in the selection of teachers.  It was previously the decision of the supervisor to employ a person as a teacher in a school; a function now performed by the IMC.  The contention is that where teachers are selected by a body which is not unified in its education vision, there is no assurance that teachers will give effect to the distinct goals of Catholic schools.

(7a)      The respondent says that the selection of teachers remains under the control of the applicant through its majority control of the IMC and through the requirement that the IMC must act in accordance with the vision and mission set by the applicant.

44.  The judge was of the view that the 2004 amendments did introduce material changes to the manner in which the applicant was previously enabled to run aided school.  Whilst under the new statutory regime the applicant enjoyed majority control of IMCs, the unity of the Diocese in its management of schools, and therefore the atmosphere and culture at the schools, was necessarily affected.[28]  However, for reasons to which I shall shortly allude, this finding did not enure to the benefit of the applicant in the judicial review, for the judge concluded that managerial change of this kind, compelled by legislation, was not precluded by the provisions of the Basic Law upon which the applicant relied.

The Basic Law provisions

45.  The three articles upon which the applicant relies fall within Chapter VI of the Basic Law, entitled ‘Education, Science, Culture, Sports, Religion, Labour and Social Services.’

46.  Article 136 stipulates that:

“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.

Community organizations and individuals may, in accordance with law, run educational undertakings of various kinds in the Hong Kong Special Administrative Region.”

47.  The applicant contends that the new statutory regime infringes this Article in that it constitutes a new educational regime, one that is not based on the previous system.

48.  Article 137 provides that:

“Educational institutions of all kinds may retain their autonomy and enjoy academic freedom.  They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region.  Schools run by religious organizations may continue to provide religious education, including courses in religion.

Students shall enjoy freedom of choice of educational institutions and freedom to pursue their education outside the Hong Kong Special Administrative Region.”

49.  The applicant’s argument is that the changes deprive its autonomy, most particularly by the introduction of outsiders into the management of schools.

50.  Article 141 is in these terms:

“The Government of the Hong Kong Special Administrative Region shall not restrict the freedom of religious belief, interfere in the internal affairs of religious organizations or restrict religious activities which do not contravene the laws of the Region.

Religious organizations shall, in accordance with law, enjoy the rights to acquire, use, dispose of and inherit property and the right to receive financial assistance.  Their previous property rights and interests shall be maintained and protected.

Religious organizations may, according to their previous practice, continue to run seminaries and other schools, hospitals and welfare institutions and to provide other social services.

Religious organizations and believers in the Hong Kong Special Administrative Region may maintain and develop their relations with religious organizations and believers elsewhere.”

51.  The applicant concentrates upon art. 141(3) emphasising the phrase “according to their previous practice” and contends that it has been disabled from running schools according to its previous practice.

The relief sought

52.  Accordingly, the applicant sought a declaration that ss. 40BK(2) and (3) and 40BU (2) and (3) of the Ordinance, “in as much as they apply to aided primary and secondary schools run by the applicant”, are inconsistent with arts. 136(1), 137(1) and 141(3) of the Basic Law and are therefore unconstitutional.

The judge’s findings

53.  In a closely analytical judgment, Cheung J held, as to the suggested infringement of art. 136(1), that the school-based management policy encapsulated in the 2004 amendments did not introduce a brand new system but was, rather, a development on the basis of the educational system which existed immediately before 1 July 1997. Its origin could be traced back to the 1989 study and to incremental implementation since that date.[29] 

54.  In relation to the argument based on art. 141(3), he was on the view that it can never have been intended by those who drafted the Basic Law that publicly subsidised schools, of which more than 50% were run by religious organizations, could continue to be run according to whatever practice those religious organizations deemed appropriate notwithstanding a decision of the legislature to introduce forward-looking programmes based on the existing educational system.  He characterized art. 141 as a provision which in its intent sought further to secure for religious organizations and for those who adhere to particular religious beliefs freedom from discrimination and it was in this context that art. 141(3) provided a guarantee that in the future, that is to say on and after 1 July 1997, religious organizations would not be debarred from undertaking the running of seminaries and schools, hospitals, welfare institutions and social services.[30]  He rejected the argument that art. 141(3) prevailed over art. 136 and said that so long as policies were formulated pursuant to the requirements of art. 136(1), the Government had the last say in terms of educational policies.[31]  Accordingly, he held that art. 141(3) did not confer immunity upon the applicant from the 2004 amendments[32].

55.  As for art. 137 and the question of autonomy, he held that the applicant was not an educational institution but that in any event the privilege of autonomy carried with it the requirement of accountability given the fact that aided schools were heavily provided for by public funds.  Accordingly, he held that the autonomy of educational institutions was subject to policies lawfully formulated pursuant to art. 136(1)[33].

56.  Although the judge acknowledged that it was not in the event necessary for him to determine the issue, he held that the management changes imposed by the 2004 legislation effected a material alteration in the way in which the applicant could run its schools.[34]

The appeal grounds

57.  The grounds of appeal, here somewhat summarized, are that the judge erred:

(1) in holding that there was a hierarchy of rights in Chapter VI whereby art. 136 ‘trumped’ art. 141(3) as well as the protection for autonomy conferred by art. 137(1) whereas, it is said, he should so have interpreted the articles as to avoid inconsistencies either amongst themselves or with provisions of the Joint Declaration 1984;

(2) in holding that art. 137 did not confer rights of autonomy upon the applicant and that he should have held that the 2004 amendments deprived sponsoring bodies of aided schools of their autonomy in the sense of “that degree of self-government necessary for effective decision-making by institutions”, articulated thus in para. 40 of the United Nations Committee on Economic, Social and Cultural Rights, General Comments No. 13(1999);

(3) in holding that the school-based management policy encapsulated in the 2004 amendments was developed on the basis of the previous educational system;

(4) in his interpretation of art. 141(3) and ought to have found that its intention was to provide “constitutional protection to the management systems of the institutions described therein”, a practice which had conferred on the applicant prior to 1997 “a de facto right to have the last word on important management issues… so long as a practice was not inimical to the education system and genuinely reflected sincerely held religious values… .”

58.  A number of these grounds surfaced for the first time in an amended notice of appeal dated 29 October 2009, very shortly before the adjourned hearing of the appeal, and leave is sought to make the amendments.  The respondent, whilst not objecting to consideration of them de bene esse, opposes the application on the basis that it is woefully late and that the additional grounds are not reasonably arguable.  Since the additional grounds traverse arguments advanced in the court below and since they enable a complete consideration of issues relevant to the constitutionality of the impugned statutory provisions, I would, despite the delay, grant leave to amend.

59.  There is a respondent’s notice which asks for the judgment below to be affirmed on the additional grounds that “a new policy introduced by the Government for the development and improvement of education under Article [136(1)] will only be inconsistent with Article 141(3)… if it materially changes the previous practice according to which a religious organization runs a school” and that the policy of school-based management introduced by the 2004 Ordinance does not materially change the previous practice and that, if contrary to the respondent’s case, the provisions under challenge do infringe any right of the applicant protected by the Basic Law, such infringement is justified by the application of the proportionality test.  Further, that the application for judicial review should be dismissed because of its failure to comply with the time limit specified by O 53 r 4(1).

The general approach

60.  It is important to appreciate that it is not the court’s function to second-guess the policy merits of the school-based management initiative.  It should further be understood that the conclusion which I reach, namely, that the statutory provisions are lawful is just that – a finding as to the legality of the statutory provisions and not a dismissal of or disregard for the deeply held conviction of the applicant that the path to fulfilment of its mission in the realm of school education, hitherto unobstructed, is now encumbered.

61.  The applicant places considerable emphasis on the theme of continuity which, it says, is the bedrock of the Basic Law; and upon the specific guarantee of continuity which, according to its reading, is conferred by art. 141(3) upon the manner in which it used to running Diocesan schools.  The new management system is, however, it says, a “brand new management structure”[35] not envisaged by art. 136 with its reference to “the previous educational system”, and that its “previous practice” in the running of schools is decimated by the new statutory provisions.

62.  It seems to me that one needs in the analysis of these constitutional provisions to appreciate that the theme of continuity envisaged by the Basic Law is not a prescription for ossification.  What is envisaged by the Basic Law is that the socialist system and policies practised on the Mainland will not be practised in Hong Kong[36] and that domestic policies will continue to be formulated by the Government of the Region, with continuing safeguards for the maintenance of the executive, legislative, legal, social and economic systems and for the preservation of fundamental rights, including religious freedom.  But there is carried with the scheme of the Basic Law a necessary implication for the development and improvement of systems.  That is the essence of governmental responsibility.  If that were not sufficiently implicit in the nature of the constitutional dispensation itself, the Basic Law is replete with references to development and improvement[37].

63.  Quite apart from the wording of art. 136, with its express requirement that policies be formulated “on the development and improvement” of education, the subject matter itself, education, cries out for the imperative of improved teaching and managerial techniques.

64.  A common sense approach to the Articles in question is therefore one that has regard to these demands and realities, eschews a narrow and literal interpretation and embraces a purposive approach[38].  I think, with respect, that the interpretation which the applicant would have us place upon the constitutional provisions in question would require a non-purposive and non-contextual approach.

Article 136

65.  The kernel of the applicant’s argument is that the new statutory provisions “design a brand new regime which pays insufficient or no regard to the previous educational system”[39].  This is because the system has been changed, in that the school-based management scheme, whereas previously voluntary, is now compulsory and, as far as concerns the applicants, their previous full control of aided schools is now denuded of efficacy.  It is said further that the judge held, in effect, that the legislature was entitled completely to change the educational system, provided that the changes were brought about gradually and incrementally.

66.  I do not, with respect, accept these arguments or this interpretation of the judge’s analysis and findings.

67.  The question that has to be asked is whether the 2004 enactment introduced a different system of education or, on the other hand, a new way of managing the existing system.  I have no doubt but that, following a proper understanding of what is intended in art. 136(1) by ‘the previous educational system’, the new legislation did not replace the system but rather provided a new managerial structure for the existing system.

68.  Having due regard to the underlying purpose and theme of the Basic Law, preservation of the education system is a requirement designed to insure against dilution of the key features of the system as distinguished from systems in other countries or regions.  The features of the Hong Kong system, which I offer in no particular order of importance, include freedom of choice, publicly funded tertiary education, liberty to opt out of public schools, equal access to education, regional rather than national control, registration of schools, non-political curricula, free recruitment of teachers, public accountability, the freedom of religious institutions to sponsor schools, and the freedom of such institutions to run religious schools.  None of those features is offended by the 2004 amendments.  What the 2004 amendments seek to achieve is greater transparency of management, more efficient management, and enhanced accountability to the public purse.  It is not possible, in my judgment, to conclude that the statutory provisions in question are promulgated other than on the basis of the previous educational system.

69.  Art. 136(1) is careful in its phraseology for, in contrast to many other provisions with their reference to the maintenance of the system, it requires, in terms, the formulation of policies “on the development and improvement of education.”  It is difficult to conceive how that development and improvement could realistically be achieved without development and improvement of managerial techniques and systems and it is difficult to conceive that it was ever intended that the majority of aided schools would remain locked in a managerial framework in which the sponsoring bodies retained absolute control even though those responsible for educational policy at large and who provided funding for the schools deemed it appropriate, after suitable study and consultation, to change the management system.

70.  Emphasis has been placed by the respondent, as by the judge, on the fact that the school-based management initiative pre-dated 1997, so that the enactment of 2004 cannot, in any event, be said to be divorced from the previous educational system.  Whilst I agree with that argument and conclusion, it is not, in my judgment, necessary to take that route.  It is not necessary because even if the initiative had not found its origins before 1997, it is nonetheless one that is, for reasons I have explained, based on the previous educational system, as that concept is in context properly to be understood.

71.  It is further to be remembered that there is nothing new in the fact of a supervisory function entrusted to the Permanent Secretary.  That supervisory or monitoring role, formerly reposed in the Director of Education, whilst amended in its particulars, has nonetheless always been a feature of the educational system in so far as it relates to aided schools.  Enactments prior to 1997 required the Director to promote education in Hong Kong and, as with the 2004 enactment, referred in the title to “the supervision and control of schools and the teaching therein”[40].  He was required to maintain a register of schools; empowered to refuse to register schools on the basis, for example, that the school was not likely to be managed satisfactorily[41]; empowered to approve and refuse to approve those proposed as managers, supervisors, teachers and principals; and every school was required to be managed by a management committee[42].  The Director was himself empowered to appoint one or more persons to be managers of the school if, for example, it appeared to him that the school was not being managed satisfactorily or that the composition of the management committee of a school was such that the school was not likely to be managed satisfactorily[43].  Extensive regulations have for long been in place providing for the constitution of school management committees, the appointment of teachers; regulations which included the power of the Director to require the managers of a school to prepare, execute and submit to him for his approval a written constitution in accordance with which the school was to be managed[44].  Codes of Aid, promulgated well before 1997 stipulated that schools in receipt of aid under the terms of the Codes were to be managed and conducted in accordance with the provisions of the Education Ordinance, of subsidiary legislation made under that Ordinance, “and in compliance with the provisions of [the Codes of Aid]” and such instructions concerning aided schools as the Permanent Secretary or Director may from time to time issue.[45]  Such Codes enabled the Permanent Secretary, and before him the Director, to appoint one or more persons to be additional managers of a school for such period as he thought fit[46].

72.  Accordingly, I am satisfied that the statutory provisions in question do not infringe the provisions of art. 136 of the Basic Law.

73.  I should add that insofar as it has been suggested that the judge held that the legislature was entitled completely to change the educational system provided that the changes were brought about gradually and incrementally, I do not read him as having suggested any such thing.

Article 141

74.  It is convenient to address the effect of art. 141 out of turn, in other words before addressing art. 137, because a suggested tension between arts. 136 and 141 has occupied much of the argument.

75.  The applicant’s case as pleaded is that “reading the Basic Law as a whole, it was the intention of the National People’s Congress to exempt religious organizations from the effect of Art. 136(1)”, alternatively that “construing Art. 141(3) ... together with Art. 136(1) .., any ‘improvement and development’ proposed should not derogate religious organizations’ constitutional right under art. 141(3) to continue to run schools according to their previous practice”[47].  Art. 141(3) was intended, it is said, to confer a special guarantee upon religious organizations. 

76.  The contention is that the previous practice was an integral part of Catholic education.  That practice was one by which the applicant retained absolute control over the running of Diocesan schools by a system which ensured unity of purpose, given effect by ensuring participation of managers, supervisors, principles and teachers who shared a vision, the nature of which was a living spiritual experience and ethos.  That vision was fulfilled, not by the observance of rules prescribed by legislation, but by people who believed in the vision and mission whereas the new managerial regime, importing as it does those who might well not share that living spiritual experience, is susceptible to disharmony.  That is why, says the applicant, it is of scant use to point to the statutory requirement now upon SMCs to fulfil the mission and vision set by the sponsoring body.  What this case is all about, said Mr Lee SC, for the applicant, was reduction in control of the applicant’s management of schools.  By reason of the legislative changes, that control, it is suggested, now lies in the hands of a different entity.  The unity of the Diocese is no longer preserved.  The “previous practice” has been changed.  “Previous practice” as that term is used in art. 141 includes the way schools are managed.

77.  Again, the provisions in question require to be read realistically, in context, and applying the intent of the scheme of the Basic Law as a whole.

78.  The question that needs to be posed is this: Does the scrutinised phrase – “religious organizations may according to their previous practice continue to run schools” – mean that religious organizations may run schools according to the manner in which they have in the past run schools, or does it mean that as has been the case in the past, religious organizations may establish and run schools?

79.  I have no doubt but that it means the latter.  The former meaning would be a recipe for stultification of managerial systems which, in the context of publicly funded institutions, cannot have been intended.  That conclusion is lent force by recognition not only of the fact that a large percentage of aided schools were, before promulgation of the Basic Law, run by religious organizations but also by the fact that art. 141(3) relates not only to schools but also to hospitals, welfare institutions and the provision of social services.  It surely cannot have been intended that whatever the public interest demanded and whatever progress was made in the world at large in management systems of, say, hospitals, the Government of the Region would be precluded from imposing new managerial methods in relation to publicly funded hospitals run by religious organizations, on the ground that the proposed new system did not accord with the manner in which those hospitals had been run by those organizations in the past.  If for example one such organization was against the idea of multi-disciplinary consultation in the assessment of patients’ care, a mode that has for long been widely applied, it would be difficult, I suggest, to contend that art. 141(3) had it in mind that previous practice could be deployed as a bar to its implementation in a hospital run by a religious organization funded by the Government.  I do not for a moment have such an organization in mind, nor do I suggest that the applicant is other than a wholly dedicated purveyor of high standard education: I use the example merely as part of the exercise in interpretation upon which the court is engaged.  As the judge correctly remarked, the argument advanced by the applicant, if correct, would mean that:

“ … regardless of how the future Chief Executive … and the Legislature are going to be elected by the residents of Hong Kong, whatever new educational policy that may be formulated by … the Government … and whatever new legislation enacted by the Legislature to give effect to such formulated policy to develop and improve the educational system, which happened to conflict with a practice that a religious organization had prior to 1 July 1997 in running an aided school can have no effect on the school run by the religious organization.  That has been the case, according to the applicant’s argument, in relation to the 2004 amendments.  Presumably that will still be the case in relation to any such newly formulated policy, say, in the year 2044.”[48]

80.  Art. 141(3) applies to religious organizations at large, addressing therefore organizations espousing a variety of faiths and religious philosophies.  It is, as the judge commented ‘religion-blind’, also making no differentiation between a one-school religious organization and a major one such as the applicant running many schools[49] and making no distinction between the organization that uses sophisticated or advanced methods of management and that which uses methods that have generally been discarded.  The Article applies equally to schools that are publicly funded as to those that are not.  It is part of a theme within the Basic Law designed to provide comfort to those who adhere to religious faiths, to those who minister to them and who give living effect within the community at large to their religious values.  The comfort provided is that the change in the exercise of sovereignty would not result in weakening the place that religion and religious organizations of all colours have traditionally occupied in this Region and that none would be disadvantaged on the basis of his or her religion and the practice of it.

81.  The theme is reflected first in art. 32 of the Basic Law, in its injunction that:

“Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public.”

82.  The same freedom is protected by art. 18 of the International Covenant on Civil and Political Rights, to which effect is given by art. 39 of the Basic Law, in its guarantee that the freedom of thought, conscience and religion includes the freedom to embrace a religion or belief of one’s choice and freedom “either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”, a freedom that may be subject to limitations necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

83.  Art. 137 of the Basic Law includes the provision that:

“Schools run by religious organizations may continue to provide religious education, including courses in religion.”

84.  Art. 141(3) is a provision that lives within the Article as a whole.  The Article as a whole concentrates on freedom, is designed to ensure against discrimination and, as the judge suggested, is there to give “prominence to the protection that the Basic Law accords to religious organizations.  It singles out religious organizations for specific mention, so as to highlight the protection and guaranteed right given.”[50]  It is in that context that the references to continuity are to be interpreted.  Just as, in the past, religious organizations have established and run educational, medical, welfare and social services, so they may do in the future.  Just as, in the past, they have not been debarred, they will not be debarred in the future.

85.  This, in my judgment, is the only interpretation that is contextually purposive, recalling as well, as one is bound to do, that schools, hospitals and other organizations run by religious institutions and publicly funded have always in this jurisdiction been subject to executive oversight authorized by the legislature.  So long as that oversight does not result in discriminatory practices or in its effect denude religious organizations of their right to establish and run such services, I see no breach of art. 141.

86.  For the reasons which I have provided, I cannot agree with the pleaded contention that it was intended by art. 141(3) to exempt religious organizations from the provisions of art. 136.  By the same token I see no warrant for the suggestion that art. 136 ‘trumps’ art. 141(3), for that implies an element of conflict between the two.  I discern no conflict between arts. 136 and 141(3).  They sit together comfortably as part of a mosaic in which the freedom and integrity of religious organizations are protected enabling them to run schools and hospitals and other institutions according to law, including the right of the Government to ensure that there is transparent public accountability for their use of public funds, that the services are managed efficiently and in the best interests of the end user for whose benefit the public funds have been allocated.

87.  There is additional support for this interpretation of art. 141(3).  It is to be found in the Chinese version of art. 141(3), the correct translation of which was canvassed in the course of the appeal hearing.  I am advised by Yeung JA that the Chinese version of the word ‘run’ in art. 141(3) comprises two characters: “Xing Ban” (興辦); “Xing” (興) meaning to start, to set up, to begin, to promote; “Ban” (辦) meaning to handle, to manage, to run.  The term ‘Xing Ban’ is not one that has as its essence the detailed management of such organizations but rather the sponsoring or establishment of them, though not excluding the running of them thereafter.  The point is, in the event, not decisive but supports the conclusion demanded by the other considerations which I have canvassed.  In relation to the Chinese text, it is to be noted that by reason of the Decision of the Standing Committee of the National People’s Congress adopted on 28 June 1990:

“… the English translation of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China which has been finalized upon examination under the auspices of the Law Committee of the National People’s Congress shall be the official English text and shall be used in parallel with the Chinese text.  In case of discrepancy between the two texts in the implication of any words used, the Chinese text shall prevail.”

88.  Mr Lee has sought comfort in certain provisions of the Joint Declaration.  He says that it is permissible to have regard to the Joint Declaration as an aid to interpretation.  The “basic policies of the People’s Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino- British Joint Declaration”[51] and the Basic Law is designed to implement those basic policies.  In Ng Ka-ling it was said that:

“The purpose of a particular provision [of the Basic Law] may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration.”[52]

89.  I myself see no need in this particular case to resort to extrinsic aids, for I think the meaning is sufficiently clear from the constitutional instrument itself.  However, reference to the Joint Declaration does not, in my opinion, assist the applicant:

        (1)       JD 128, which is prayed in aid of the applicant’s argument in relation to art. 136 of the Basic Law provides that:

“The Hong Kong Special Administrative region shall maintain the educational system previously practised in Hong Kong.”

Emphasis is placed by the applicant on the use of the word ‘maintain’.  Quite apart from the fact that the educational system, as I have sought to describe it, has, in my opinion, been maintained, the fact is that the phraseology used in the Joint Declaration is not the phraseology used in art. 136 of the Basic Law.

        (2)       JD 154 corresponds most closely to art. 136 of the Basic Law.  It says:

“Religious organizations and believers may maintain their relations with religious organizations and believers elsewhere, and schools, hospitals and welfare institutions run by religious organizations may be continued.”

This supports the interpretation urged by the respondent, not that by the applicant.

90.  For the reasons I have provided, I am of the opinion that the impugned legislative provisions do not contravene art. 141(3) of the Basic Law.

Article 137

91.  The applicant contends that it is itself an educational institution and that art. 137 confers upon it autonomy in determining the governance structure of its schools.  That autonomy, it says, has been violated by the new legislative provisions which require the importation of outsiders to the management of schools.

92.  I agree with the judge that the applicant is not an educational institution but is rather a religious institution that sponsors and runs educational institutions.  Autonomy is not removed from the institutions.  The institutions themselves, the schools, remain autonomous in the sense that, subject to proportionate accountability, they run themselves through the vehicle of the sponsoring body, the parents, teachers, independent managers and representatives of alumni.  It is merely the vehicle by which autonomy is exercised that has been altered.

93.  It is suggested by the (proposed) amended grounds of appeal that the learned judge should have held that “no educational institution, such as an aided school ‘may retain its autonomy and enjoy academic freedom’ as guaranteed under Article 137(1) BL, unless ‘the brains’ of that institution, being the school sponsoring body in the case of an aided school, can retain that decision-making power on all policy and other important matters, and be able to make independent decisions on such matters without interference from anyone, including the Government.”[53]

94.  That is a bold submission which, in my judgment, is not supportable.  Assuming, without deciding, for the purpose of this case, that the autonomy addressed by art. 137 embraces the autonomy of primary and secondary schools, rather than tertiary institutions, to which the term is more commonly applied, I fail to see the warrant for the assumption that the brains of an institution must repose solely in the school sponsoring body.  That assumption begs the question which this case addresses, namely, whether it is as a matter of law permissible to entrust the running of schools to a wider category of directly interested persons.

95.  Secondly, I find particularly bold, in relation to publicly funded institutions, the suggestion that art. 137 envisages no ‘interference’ – presumably of any kind – from anyone including the Government.  It supposes no right in those entrusted to safeguard the public purse and educational and other services intended for the common good, to monitor the manner in which public funds are expended and to ensure the efficient and modern dispensation of educational, medical, and social services.

96.  The applicant seeks to utilize art. 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to which reference is made in art. 39 of the Basic Law.  Art. 39 provides that the provisions of that Covenant as applied to Hong Kong shall remain in force shall be implemented through the laws of the Region.

97.  Art. 13 of the ICESCR provides:

“1. The States Parties to the present Covenant recognize the right of everyone to education.  They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.  They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of the children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”

98.  There is a question, which it is not necessary to address or determine in this case, namely, whether the ICESCR is by reason of art. 39 of the Basic Law incorporated into Hong Kong’s domestic law[54], but even assuming for present purposes – though without deciding – that it is, it does not, in my opinion, assist the applicant.

99.  A realistic understanding of the purport of art. 13 is found in the 1999 General Comments No. 13 of the United Nations Committee on Economic, Social and Cultural rights, which contains a passage upon which Mr Lee placed considerable emphasis.  Paras. 38 to 40 of the Comments read as follows :

“38.      In the light of its examination of numerous States parties’ reports, the Committee has formed the view that the right to education can only be enjoyed if accompanied by the academic freedom of staff and students.  Accordingly, even though the issue is not explicitly mentioned in article 13, it is appropriate and necessary for the Committee to make some observations about academic freedom.  The following remarks give particular attention to institutions of higher education because, in the Committee's experience, staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom.  The Committee wishes to emphasize, however, that staff and students throughout the education sector are entitled to academic freedom and many of the following observations have general application.

39.       Members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing.  Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognised human rights applicable to other individuals in the same jurisdiction.  The enjoyment of academic freedom carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds.

40.       The enjoyment of academic freedom requires the autonomy of institutions of higher education.  Autonomy is that degree of self-governance necessary for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities.  Self-governance, however, must be consistent with systems of public accountability, especially in respect of funding provided by the State.  Given the substantial public investments made in higher education, an appropriate balance has to be struck between institutional autonomy and accountability.  While there is no single model, institutional arrangements should be fair, just and equitable, and as transparent and participatory as possible.”

100.  Mr Lee would emphasise the passage that reads: “Autonomy is that degree of self-governance necessary for effective decision-making… ,” and he asserts that that degree of self-governance, previously reposing in the applicant, has now been removed.

101.  There are two answers to that contention.  First, that effective decision-making still rests with the relevant educational institutions.  Second, emphasis on the phrase in question ignores the sentiments which immediately follow, namely, that “self-governance must, however, be consistent with systems of public accountability, especially in respect of funding provided by the State”; that “an appropriate balance has to be struck between institutional autonomy and accountability”; and that “institutional arrangements should be… as transparent and participatory as possible.”

102.  It is not possible in the circumstances to perceive a breach of art. 13 of the ICESCR.

103.  For these reasons, I find that the 2004 legislation does not infringe the protection afforded by art. 137 of the Basic Law.

Conclusion

104.  Accordingly, I would dismiss this appeal and make an order nisi that the applicant pay the respondent’s costs of the appeal.

105.  It is unnecessary to determine the issues raised by the respondent’s notice.  I would make no order as to the costs incurred by that notice.

Hon Yeung JA:

106.  I agree with the judgment of Stock VP and have nothing further to add.

Hon Hartmann JA:

107.  I also agree with the judgment of Stock VP.

Hon Stock VP:

108.  Accordingly the appeal is dismissed.  There will be an order nisi that the applicant do pay the respondent’s costs of the appeal, to be taxed if not agreed.