tim's experiment

The row over autonomy at HKU took a surprising turn last week, when the People’s Post published a long piece by one Tony Carty, who was described in the usual endnote as the Chair in Public Law at the University of Hong Kong. As it seems unlikely that the furniture at HKU is writing op ed items I take this to mean that Carty is a Professor, and a law professor at that. He is in fact (according to Wikipedia) two professors, as he holds down a similar job in Aberdeen.

Prof Carty led us through the background, in four paragraphs, and said that as he could not read the 350 hostile articles about Johannes Chan in the left-wing papers he had asked one of his PhD students to translate one. This could be considered a rather small sample but we are not in a social science class here so let that pass.

Prof Carty then lists three “criticisms” in the article: “Chan’s policy of having assistant professors without research degrees supervising mainly mainland PhD students; the faculty holding apparently academic meetings which are actually expressions of political activism; and appointing many senior Western academics who are not noticeably academically productive in research while in Hong Kong.”

And the Prof goes on to say that “If there was to be a judicial review of these smears, I would expect any judge to say that they are “fair comment'”. Oh dear me. Let us not linger over the fact that Prof Carty’s writing skills do not include the use of the subjunctive. He is not exactly scintillating on the law either. Judicial review is a procedure in which a judge considers the propriety of an administrative decision. It has no place here, except perhaps to impress readers who are sensitive to legal mumbo-jumbo. “Fair comment”, comes from the law of libel and is the old name for the defence which has been called “honest comment” since the Court of Final Appeal’s decision on Cheng v Tse in 2000. This protects the expression of honestly held opinions. But the three criticisms which Prof Carty lists are not matters of opinion. They are matters of fact. The maker of the statement would be required to prove to the court, on the balance of probabilities, that it was true that there was a policy that assistant professors without research degrees should supervise mainland students, that apparently academic meetings were held for political purposes, and that Western academics were appointed and then did little research. If the newspaper established these facts, then the further inference that because of his poor taste in research supervisors, meeting agenda and visiting scholars Johannes Chan should not be appointed a Pro Vice Chancellor would be an honest comment. But a comment must be based on true facts to enjoy the defence. And it must be a comment, not an opinion about a factual matter. If you write a piece saying that X beats his dog and his wife, only to discover that he is a dogless bachelor, then the fact that you honestly believed the tale will not help you.

Alert to the possibility that this might be an interesting piece, I trudged on to Prof Carty’s account of the appointment of Chan’s replacement as law dean. The relevance of this is that the new dean does not apparently share Prof Carty’s horror at the idea of a law teacher participating in Occupy Central. There seems, however, to be another problem here. An alternative candidate, who was not selected, was “a leading world specialist in the common law, with the inevitably much deprecated PhD from Oxford in the philosophy of the common law…” Well actually he didn’t have a PhD, deprecated or otherwise, because in Oxford they call it a DPhil, but what is going on here? Could it be, one wonders, that Prof Carty has a PhD and feels it is not getting the respect it is due? Johannes Chan, as we all know, hasn’t got one, and neither does his replacement. Neither do I. The relative merits of a research degree or a career in a real job are a recurring problem in professionally-orientated departments.

Now we come to the heart of the matter. A nameless “law graduate” had written publicly to Johannes Chan, asking how a teacher of law could be a leader of Occupy. Chan’s reply seems to have run to some length. In the middle of it is the sentence “It is a classic debate in any jurisprudential class whether the laws asking the Germans to kill the Jews are law even when such law has been duly passed by Parliament.” Chan goes on to say that opinions about breaking the law as a protest are a “political choice” and a respectable academic institution should not “penalize someone simply because we do not agree with his political choice”.

Prof Carty pounces: “In other words, if a law professor in Hong Kong chooses to consider the Chinese government the equivalent of Nazi Germany and organizes mass illegal demonstrations to force the resignation of the chief executive, such is he personal political choice and not the concern of HKU.”

Hold on a minute. Nobody is saying that the Chinese government is “the equivalent of Nazi Germany”. The Nazis come up in discussions of whether it is ever wrong to break the law. They come up for one purpose: the refute the naive and simplistic idea that it is always wrong to break the law. Prof Carty seems to take a rather primitive view of the matter. The point is that there are circumstances in which it is clearly not wrong to break the law. That does not mean that it is always right to break the law. It means that in any particular case we have to consider the circumstances in detail. We cannot just jump to the easy conclusion that illegal = wrong.

It may also be useful for lawyers to bear in mind that the public has no difficulty in seeing variations in the seriousness of illegal acts. It is, for example, illegal to enter an MTR station for the purpose of protesting against the corporation’s luggage rules. But anyone who got huffy about that would be considered to be lacking a certain sense of proportion. Professors do illegal things all the time … and we pay our parking fines like the rest of the population. Most people consider quite reasonable the HKU line that a prof who meets his job obligations has a right to do pretty much what he likes out of the office. It seems that the government also takes this view with its own employees. The Development Secretary, Paul Chan Mo-po, lost a spectacular libel action last week. This would once have been considered a serious blemish on the honour of a public servant, requiring resignation. Not these days, apparently.

Rather surprisingly Prof Carty comes to the conclusion that the decision not to appoint Johannes Chan was political, and it is “only to be expected” that the government’s appointees and supporters “will avail themselves of the advantages which they have, under the colonial-style constitution of the council, to resist Chan’s appointment.” So it’s political, but he’s OK with it, because Chan is part of the worldwide pro-democracy, anti-China conspiracy.

This is all rather disappointing. It seems to me that Prof Carty has an unfortunate habit of taking quotes out of context, interpreting them in a way which is clearly unfair to the speaker, and as a result coming to a rather sensational conclusion. This is perhaps the sort of thing which journalists do, but then journalism is, as Max Hastings puts it, “a profession for cads and bounders.” Professors, on the other hand, are supposed to be gentlemen and scholars.