tim's experiment

We must all be grateful to the Catholic Monitors on Legislative Councillors. I am not sure why Catholics should be particularly keen on monitoring councillors. Would they refuse the help of a Protestant volunteer? Never mind. Since 1998 the monitors have produced an annual report on the work of legislative councillors and this provides some interesting insights. Inevitably media reporting of this admirable effort tends to concentrate on who is the Laziest Legislator, a title for long held by David Li, then by Timothy Fok, and now securely in the possession of Lau Wong-fat.

Unfortunately the monitors do not report in English. The results of their efforts as translated by Google are very difficult to follow. But in principle what happens is this: the legislators are assessed on five measures: how often they were absent, how many questions they asked, how often they spoke, how often they voted and how many motions or amendments they proposed. Obviously it would be easy enough to pick holes in this methodology but the overall result is quite consistent from year to year, which suggests that it is measuring something substantial. This year Mr Lau was the winner again (or loser, however you want to look at it) with five “disadvantages”, which I take it means a low or bottom score on all five of the items listed above. Joint runners-up were two Functional Constituency lay-abouts with four disadvantages, followed by one councillor with three. This was Ronny Tong, who we may infer was practising for his up-coming retirement from the scene.

The monitors went on to criticise the president of Legco, Jasper Tsang, for deviating from the necessary levels of impartiality by conferring with pro-establishment legislators over Whatsapp during a debate, and some rulings on motions. They also provide an analysis of councillors’ levels of industry compared by party allegiance and by whether they were elected or functional. Unfortunately Google translation does not handle tables well so I cannot offer any further information on this interesting area.

I can, however, warn faithful readers not to waste their time by seeking further information in the pages of the South China Morning People’s Daily, where the report on the activities of the Catholic Monitors is preposterous. I appreciate that the reporter had a problem. The results of the monitors’ efforts do not vary a great deal from year to year. Generally the same councillors do the least work, by the monitors’ measures. The pro-establishment camp shows up as a bit lazier than the opposition, mainly because the pro-establishment camp contains so many functionals, who are clearly the laziest by this measure. In fairness we should note that many of them have other jobs, while the DAB and pan-democrat people are usually full-time politicos.  That is not at all to say that the list is useless, or the work wasted. Few readers of this year’s report will dissent from the monitors’ view that Mr Lau has passed his “sell-by” date.

Still, however desperate the reporter may have been, the result of his efforts was unfortunate. Looking at one of the five categories he found two pan-dems in it. The category is the “proposing motions and amendments” one, in which, quite understandably, some members do not feature at all. Both of the pan-dems with zero scores are “super seat” members, who might be expected to be industrious. So this could be surprising. On the other hand it is only one of the five measures. So it can hardly justify the first paragraph of the story, which is “Two pan-democrat “super seat” legislators have been listed, along with the usual suspects from the pro-establishment camp, as the laziest members of the legislative session.” This is not just a poor choice. It is wrong. Being wrong it led to the even more catastrophic headline “Pan-dem duo named ‘laziest’ lawmakers”, which is so bad it is difficult to characterize it as anything but a lie. Clearly the person who wrote the headline had not read the story carefully, a disturbing habit in a sub-editor.

The story goes on through the matter of not moving motions, noting that the inactive also included Mr Lau and three Liberals. It does not mention the other people in this category, who included two DAB people and the man who squats for the Financial Services Industry. We then get comments from the Monitors, and an explanation of super seats, before we explore the category of casting votes. Here we find low scores for Mr Lau (of course), one of our two “laziest” pan-dems, and two other democrats (one of them Ronnie Tong). There were a total of seven lawmakers in this category, so we are again left with three missing. Apparently the reporter thought we would not be interested. Or perhaps the policy at the SCMP these days is not to report anything unless it can be used to slag off the pan dems. By a final irony the last paragraph of the story contains what the monitors actually wanted to report: “overall… the group identified Lau, non-affiliated Dr Leung Ka-lau and Cheung Kwok-che of the Liberal Party as the worst offenders.”

So in effect the story comprises 12 paragraphs of propaganda with one paragraph of news on the end. It seems the new owner of the newspaper aspires to improve its China coverage, which is apparently still prone to regard China as a communist state. I think you have to be pretty paranoid to see any bias against China in the paper these days. Its coverage of local politics, on the other hand, is increasingly a travesty of journalism. Would any under-employed Catholic monitors like to take on the local media?

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Did the earth move for you? As Hemingway might have put it. It did for me. Last week a local District Court Judge jailed 11 New Territories villagers and a would-be developer for misrepresentation and perjury. Their crime was to apply for the right to build a “small house” under the policy which allows the male descendants of indigenous villagers to build such a house for their own use. The villagers had in effect handed over their right to build a house to the developer in return for a sum of money. The developer would then build the houses and sell them to people who might not be indigenous at all. Of course the government departments to which various people applied under the scheme were not told that this was going on. How this interesting arrangement came to light remains a mystery. After a civil case this week which also involved the Small House Policy the Lands Department had the brass face to issue a press release saying that it would “cooperate with law enforcement agencies in following up suspicious cases of small house applications”.

The funny thing about all this is that this sort of abuse of small house applications has been going on under the noses of the relevant departments for at least 30 years. About a decade ago the late Kevin Sinclair wrote a comprehensive complaint about the matter. He outlined the racket, the procedure and the terminology. The price of signing the documents to claim the right to build a small house is apparently known as the “ding”. When Mr Sinclair wrote his piece the “ding” was half a million bucks. In the latest cases it seems to have come down to something between $100,000 and $200,000. This suggests that the Lands Department’s vigilance has not yet produced a shortage of willing participants in bogus arrangements.

Of course Mr Sinclair was not claiming a scoop. Many people had known and said for many years that most of the applications to build a small house under the policy came from people who had no intention of living in the resultant property, or indeed in some cases in Hong Kong. When I lived in a New Territories village it was commonplace to meet “villagers” with fluent English and conspicuous Manchester accents who made no bones about the fact that they had only returned to Hong Kong to collect their “ding” and were hanging about waiting for the few weeks required to process the application. Small houses, if you look at them closely, usually turn out to have been built as three flats. This means that the owner, if he does live in the property, can inhabit the third at the bottom and let the rest.

At some villages, including the one which Mr Sinclair lived in, it was very easy to see what was going on. There was the village, still inhabited by the villagers, and there was a cluster of “small houses” outside the village, all of which had been sold to outsiders. All this was clearly a violation of the government’s intention in introducing the policy. Nobody at any time suggested that it was illegal.

I remember way back in the early 80s editing a story for the Hong Kong Standard which reported that a member of the Heung Yee Kuk had complained that not only was the policy being abused, but some members of the Kuk were among the abusers. For some reason he found this surprising. At about the same time my brother moved into a pristine, freshly-minted small house which had clearly been built under the programme. Some nifty legal work was required to get round the restrictions on early sale. He also had to do quite a lot of building work on the house because of the three flat syndrome.

People have occasionally suggested that the whole arrangement is sexist – which it clearly is: daughters do not inherit the same right. They have also complained that it results in untidy and incoherent development round villages, which is plainly true in many cases. They have complained that the government originally promised that if the scheme was abused it would be cancelled, which turned out to be as unreliable as official predictions about the effect and use of new legislation commonly are. Put not your trust in princes. There have also been complaints that the huge quantity of land which the government has reserved for this purpose could be put to better use.

Defenders of the scheme cite the bit in the Basic Law about the traditional rights of New Territories residents, which is hardly relevant because there is nothing traditional about the Small House Policy. It is also defended as a prop to the traditional way of life, but this is not born out by observation at all. On the contrary in many cases the owner of a new small house is able to give up work of all kinds and devote the rest of his life to counting money and playing mah jong. When I lived in a New Territories village my neighbours had been scrupulous in observing the rules. All the houses in the village still belonged to the clan, with the exception of mine, which had been exempted because in the Post Office’s house numbering exercise it was allocated the ominous number 44. Villagers made admirable efforts to preserve their traditions, even though most of them commuted to work in the urban area. They were also very hospitable. Efforts to preserve traditions were, though, not helped by the fact that many families depended more on the rental income from their upper floors than on paid work. And agriculture had been abandoned completely.

Still, whether you like the Small House Policy or not, the idea that it is illegal to apply when you have no intention of living in the resulting house comes as a bombshell. Was it always illegal? And if so why did nobody come unstuck before? Abuse has for decades been rampant, public, conspicuous and regularly reported. Was this, one wonders, one of those areas where the “law enforcement agencies” got the message from senior officials that their best efforts were not wanted? If you enjoy conspiracy theories you can contemplate the possibility that the new policy of prosecuting bogus applicants will end the Small House Policy as we know it, and this is Uncle Fat’s punishment for missing his chance to vote for sham democracy. That is too complicated for me. I think it was just that the thieves fell out and someone blew a legal whistle. Still, relevant departments should take note. We do not want to wait 40 years for the next case.

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Lurking somewhere in the bottom of the copious election coverage was a little phrase which caught my attention, and should perhaps have caught more from other people. Nakade Hitsujiko, a candidate in Tai Kok Tsui, wished to have on his election material, which is printed and distributed free by the Registration and Electoral Office, the slogan “build Hong Kong city state”. The slogan was removed by the REO. Mr Hitsujiko, who changed his name from Chung Ming-lun before the election, was what we press scribes tactfully refer to as a “colourful” candidate, occupying a point somewhere on the spectrum between Martin Bell and Screaming Lord Sutch. That is no reason for depriving him of the rights enjoyed by other candidates, and the question which arises is: by what right does the REO censor candidates’ election material?

The REO’s view, reportedly, was that the slogan “violated the Basic Law”, and in particular that part of it which states that Hong Kong is an inalienable part of the People’s Paradise. I have several problems with this. The first is that the Basic Law, along with the bits about inalienable membership of the motherland, also states that citizens of the SAR have freedom of speech. What that means in most jurisdictions is that people are free to argue peacefully for changes to the constitutional arrangements, however fundamental they may seem to be. Citizens of Texas are free to agitate for secession from the Union, citizens of the UK are free to call for the abolition of the monarchy, and so on. The Basic Law does not state that no citizen may utter any phrase or publish any slogan which is inconsistent with the Basic Law itself. What is not forbidden should be allowed, in our system.

Another way of looking at it is to visit briefly that platitude which states that freedom of speech is not total. It may be restricted in pursuit of other important purposes. These are enumerated in the UN Declaration of Human Rights and the Hong Kong Bill of Rights Ordinance, and concern things like the protection of reputation, the right to a fair trial, public order and national security. Clearly the only one which can arise in this context is the last, and I do not see how anyone could argue with a straight face that China’s safety is threatened if the phrase “Hong Kong city state” finds its way onto a District Council election leaflet. After all Hong Kong’s status is not a matter which is going to come up in District Board meetings anyway. Mentioning it serves the useful purpose of giving electors a clearer idea of the thoughts and character of the person soliciting their votes. I realise that quite a lot of candidates do not wish the electorate to know too much about them, supposing that their cuddles with Communism might be an electoral liability. But it is no part of the REO’s job to make this compulsory.

It should also be born in mind that the slogan “build Hong Kong city state” does not necessarily imply secession from China. It is common in federal systems to have states which are still part of the country. California and Bavaria are examples. A city state does not have to be like Singapore, with its own flag, anthem, army and UN seat. There are other models. Something like the old “Imperial Cities” in the Holy Roman Empire might suit, for example: the possession of a charter securing rights to self-government in some areas and a direct allegiance to the emperor rather than his regional representatives. Someone who hankers after a Hong Kong city state might yearn for independence. Or he might yearn for that high degree of autonomy in everything except defence and foreign policy which at one time we were told we were going to get.

In fact at some risk of violating the Basic Law, at least in some people’s view, we might go further and say that all the large successful countries in the world have federal systems of one kind or another and it would be greatly to China’s benefit if its political culture was encouraged in that direction. All the countries to which one might wish to emigrate are either small or federal or (Switzerland) both. Looking at the 5,000 years of China’s history we must suspect that, under the smooth surface of official history, the years of disorder and multiple centres of power were times of dynamism and innovation, and those in which power was precariously held in the centre saw stagnation and stasis, culminating eventually in a successful foreign invasion. The repression required to suppress dissent inevitably also suppresses innovation and creativity.

Still, these larger considerations have very little to do with the question before us, which is whether the REO, finding a reference to “Hong Kong city State” in an election leaflet, has a right to remove it. Clearly it does not. We may concede some right to object to matter which is obscene, blasphemous or defamatory. But an election is an exercise in free choice and that choice should be as unfettered as possible. Also there is no legal right for the REO to interfere in this way. The despair-inducing thing about all this is that the REO’s record in defence of electoral honesty in other matters – like voter registration – is abysmal. And what is the point of putting a retired judge in charge of these things if they are just going to make up the rules as they go along.

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Dear me, Michael Chugani’s efforts to defend anything currently under attack from the forces of subversion have left him seriously confused. In Wednesday’s Pravda he did not seem to know whether he was coming or going, but manfully trying to do both at the same time.

First out of the box we had “Where’s the smoking gun from the HKU Council leaks?”. This was devoted to the view that the leaks from the Council’s debate on Johannes Chan reveal nothing improper, and therefor the “whistleblower”, which we may take it refers to Billy Fung though he is not named, is a coward and a phoney. This is a rewritten version of Mr Chugani’s piece in the Standard a few days before, where it masqueraded as advice on the correct use of English but made much the same points, with the modest exception that in that article Mr Fung was a “traitor” and a “snitch”. Friends of Mr Fung may be tempted to retort at this point that Mr Chugani would have a more accurate view of the world if his head was not stuffed so far up the part of the government’s anatomy that rhymes with farce. But let us not get personal.

Mr Chugani’s is a coherent position, even if you do not agree with it. If there was no foul, there should be no whistle. Personally I think Mr Chugani is applying the wrong standard. The Council is justified in over-ruling the search committee if some item of knowledge known to the Council but overlooked by the committee places the matter in a new light. But none of the speeches offered anything new. In its hours of work on the subject the search committee certainly considered such matters as the candidate’s research record and qualifications. For amateur part-time Council members to over-rule the experts on the basis of nothing more than their own prejudices or a bit of superficial Googling was arrogant and indefensible. This would still be the case if they were not in any way influenced by politics, though you have to be rather optimistic to believe that.

Anyway having established the councillors’ innocence to his satisfaction Mr Chugani moves on to “Radio station airs one-sided view of council meeting”. Here we meet Commercial Radio and consider its broadcasting of tapes of two members’ speeches on the Johannes Chan matter. Mr Chugani wonders why there were no broadcast speeches from people on the other side of the argument. Well we may hazard a guess that variations on “I think we should accept the proposal of the properly appointed search committee” would not have made very interesting radio. But Mr Chugani thinks this made the broadcast “selective airing of leaks that smear one side”. But wait a minute. If there was no impropriety justifying the blowing of the whistle then why should the broadcasting of the speeches, whether selected or not, constitute a “smear”? To smear, as Mr Chugani will not doubt be telling young Standard readers next week, is”to sully, vilify, or soil a reputation, good name, etc.” But if there is nothing wrong in the speech, then the speaker’s reputation presumably remains unsoiled. “What did the trio say that was illegal or immoral?” asks Mr Chugani, with the clear intention that we should answer “nothing”. But in that case there can be no harm in radio listeners hearing the speeches. Broadcasting them may be a breach of confidence but it cannot be a “smear” if there is no dirt, as Mr Chugani staunchly maintains. I am irresistibly reminded of the Roman god who had two faces pointing in opposite directions. His name was Anus … I beg your pardon Janus.

Mr Chugani’s third offering was a call for housing to be built in country parks. Can’t say I agreed with that either but it was at least logical.

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Last week Commercial Radio broadcast a tape of Arthur Li urging the Council of HKU not to appoint Johannes Chan. The government’s media defenders swung swiftly into action. “No smoking gun or incriminating remarks,” said Alex Lo in the People’s Post. “We know all this already,” he concluded. In the Standard Mary Ma said the content of the leaks had “already been reported”, and “the bomb is more of a dud.”

Just a minute. The content of the leaks had certainly been reported already. It was reported by Billy Fung, the student representative on the Council, now much abused for breaching the council’s confidentiality. But we did not “know all this already” because we were also told of Arthur Li’s reponse, which was that “Billy Fung is a liar.” So those of us who supposed that Prof Li might approach normal standards of integrity and truthfulness in public life were left with two conflicting stories. It seems we are now to conclude that, at least as far as Mr Lo and Ms Ma are concerned, Prof Li’s rebuttal of the initial leak was of no significance at all. They did not believe it. Prof Li now says that when he said Mr Fung was a liar he meant that he had breached the confidentiality rule. But that is not what his hearers would have understood by the remark. The normal and natural meaning of the words was that Mr Fung’s version of events was erroneous. I realise that Prof Li is a serial foot-in-mouth artist who is, as Ms Ma tactfully put it, “not the type to embarass easily”. But it seems even his warmest supporters do not place much faith in what he says. This seems rather a disadvantage in a university councillor, let alone a council chairman.

But of course the university has no voice in the selection of its council chairman, which is a matter for the government. I share the pessimism of those who see no real prospect of local universities either shaking off their government appointees or divesting themselves of the automatic CE Chancellor. But this seems to be taking the wrong approach anyway. The government has a legitimate role in appointing people to university councils, and indeed to many other bodies. The question is not whether there is a justifiable right to appoint, but whether that right is being misused.

The answer to the second question is yes. C.Y.Leung was the first Chief Executive to recruit a politically appointed assistant for the specific purpose of polluting the government nomination machinery with politics. The government appoints hundreds of people to all kinds of courts, councils and advisory bodies. These appointments should be made on merit with a view to keeping up the quality of the deliberations of the bodies concerned. Instead they are being used as a political reward system, and a sort of social security for superannuated members of the DAB. This is a drastic change for the worse which was never publicly acknowledged, defended or explained. I expect it was the Liaison Office’s idea. It is no wonder that our government has a tin ear for public sentiment. It spends too much time listening to its friends tell it how wonderful it is. This is a chorus in which the local media are increasingly willing to join. This is a recipe for long-term problems. If you can’t get any attention from the government without starting a riot, then riots there will be.

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What happened to all those people whose objection to Occupy Central was not that they disputed its objectives but that it was illegal? This was a recurring theme in anti-Occupy diatribes. It became a compulsory adjective in government comments on the protest. It also featured prominently in the attacks on HKU Law profs who had supported — or not opposed — it. A visiting Martian might have supposed that many Hong Kong people decided their attitudes to protests on the basis of whether the protest was legal or not.

Or at least he might have thought this until last week, when protesting hospital doctors occupied part of a public hospital as part of a campaign for better pay. Suddenly there was a complete shut-down of those mysterious legal antenna which allowed so many commentators to detect that occupying Central in the pursuit of democracy was illegal. People who discerned illegal protests as a dangerous attack on the Rule of Law stopped reading newspapers. Certainly they stopped writing to them. The leader writing department at the People’s Post, which has to write every day, managed to support the doctors without giving a moment’s thought to their relationship to the Rule of Law.

Let me make it clear that I am not against the doctors. I was not against Occupy Central either. The right to protest is important, and it is not compatible with a pedantic application of colonial laws restricting public assemblies, or for that matter with a pedantic application of the Common Law rights of owners of places to which the public is admitted. The Hospital Authority operates on the same lamentable lines as the proprietors of many local media organisations. You take on freshly qualified youngsters who want to get in the business and serve the public. You subject them to long hours and low pay until they reach the age at which a person wishes to have a job compatible in its demands for time and money with raising a family. They then leave and you replace them with a fresh batch. Happily doctors are easier to organise than journalists and they seem to be making some progress. Good luck to them.

Meanwhile, though, we must note a certain lack of frankness in those commentators whose objection to Occupy was, they said, that it was illegal. It is in my experience almost invariably the case, actually, that people who condemn the method of a protest really disagree with its objectives. This is not just because of that instinct for coherence which leads us to assume that handsome people will also be bright, or that scruffy people will be bad at precision engineering. It is more than that. It is a way of avoiding an argument you think you will lose. Occupy was a protest against an electoral arrangement. The electoral arrangement was indefensible. But the protest was illegal, so it could be condemned anyway. The doctors’ protest was also illegal. But we agree with them, so it does not matter.

It would be a good idea for people to develop a bit more self-awareness on this point. Legality is not an all-purpose external standard which can be applied effortlessly. Treating like cases alike when political passions are running high takes an effort. More effort than it is getting now, by the look of it. So we see a lady jailed (jailed!) for assaulting a policeman with her bosom, while a Superintendent who starred in a movie of him lashing out at protesters with a club is apparently not going to be prosecuted at all. And the law and order fan club takes a holiday while hospital doctors do what students are routinely condemned for.

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Last week I finished reading “Torture Team”, by Philippe Sands. The book has been out for a few years – indeed it had been hanging around my bookshelf for a few years – and it starts slowly. But after a while it pulls you in and you have trouble putting it down. There are two interlocking stories: one is of how the Bush administration managed to convince itself that the War on Terror was not, legally, a war, so people captured as part of said war were not covered by the Geneva Convention, the international agreements outlawing torture, the US Constitution, or the US Army’s code for the treatment and questioning of prisoners. Interwoven with this is the author’s personal journey. He is, despite the curious spelling of Philippe, a senior English lawyer who became interested in the topic because he was defending a British soldier accused of mistreating prisoners in Iraq. One of the points made as part of the defence was that the British Army was pressed by the Americans to use more drastic methods of interrogation, which the Americans were already using themselves. Mr Sands then traced this back through Abu Graibh, to Guantanamo, and eventually to the White House, where large numbers of the administration’s legal advisers had happily signed up to the idea that “enhanced interrogation” was not torture and in any case the victims were not entitled to the sundry legal protections from torture available to US citizens.  So there is a sort of detective story, and some interesting interactions between the inhabitants of two legal systems which, despite their common roots, have very different cultures. Not everyone’s cup of tea, but an interesting book if you find the law interesting.

The underlying theme of Mr Sands’ inquiry is about the obligations of lawyers generally. It seems that lawyers, especially lawyers appointed to posts in the gift of politicians, sometimes lose their bearings, and produce interpretations of the law which are eccentric if not perverse. The lawyers who justified the Nazi treatment of the Jews were eventually, in some cases at least, tried in a sort of special supplement to the Nuremberg war crimes trials. Mr Bush’s lot were roundly rebuked by the Supreme Court, though nobody has actually faced a trial. No doubt similar mishaps have happened less conspicuously elsewhere.

Which brings me to the day after I finished the book, when we were all presented with the spectacle of the Secretary for Justice, Rimsky Yuen, announcing that the first court appearances of the Magnificent Seven policemen alleged to have beaten up Ken Tsang, and the same Mr Tsang alleged to have committed common assault and resisted arrest, were on the same day. And this had been deliberately arranged by the Department of Justice in the interests of “procedural fairness”.

I do not suggest that Mr Yuen is in any way morally comparable with German lawyers in the 40s or White House lawyers in the aftermath of 9/11. But something similar in the way of self-deception seems to be going on here. Because procedural fairness has nothing to do with it. Fairness does not, and has never, required that offences committed on the same day should be tried on the same day. In any case the first appearance is merely a preliminary ritual. There are discussions about bail and trial dates. The actual trials will be in different courts and as Mr Tsang will presumably have to appear at both in different capacities they will need to be on different days.

What procedural fairness does require is that cases should proceed as fast as decently possible. Justice delayed is justice denied. The anxiety, stress and expense of facing an upcoming trial are not supposed to be part of the punishment. If Mr Tsang’s first court appearance was delayed in order to have it coincide with that of his seven alleged assailants then that was not an example of procedural fairness. Quite the reverse. As the case of the Seven has apparently been turned into a legal spectacular – DNA tests, opinions from legal star in London, 30 prosecution witnesses – while Mr Tsang’s appears rather minor and simple, we can I fear infer that the latter was deliberately delayed so that it would collide with the former. The convenience of this from a PR point of view is no doubt a coincidence.

Actually there is a most objectionable confusion being fostered here, because the underlying implication of linking the two cases together is that the alleged offence of Mr Tsang in some way provoked, justified, or at least can be regarded as mitigation of, the alleged offence of the Seven. And this is not the case.

The role of the police force is to arrest people suspected of crimes and bring them before the courts. Punishment by policemen is never on the menu. Tying a prisoner up and beating him cannot be justified by what happened first. Whether the victim sprayed the crowd with water, or indeed with machine gun fire, makes no difference. Whether the policemen saw him commit a violent crime or merely recognised him at the scene as someone wanted for tax evasion makes no difference. Whether his crime is awful or trivial makes no difference. In this sense when considering the guilt or innocence of the Seven it does not matter what Mr Tsang may or may not have done, and the suggestion that the two questions are linked in some way obscures an important principle. The rule of law applies to all of us. Including policemen. And the law says that punishment, however vile the offence, must be preceded by a trial.

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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.

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The function of tragedy, according to Aristotle, is to inspire terror and pity. Recent goings on at Hong Kong University fill the bill nicely. The usual “search committee” settled on the idea that Johannes Chan should be a pro Vice Chancellor (PVC). Mr Chan was then subjected to a barrage of abuse — literally hundreds of articles — in the PRC’s poodle press. The University Council decided to postpone the matter while the question of who did what over donations to Occupy Central was clarified. This was done. Then the council found another reason, and postponed the matter again. This reason (wait for appointment of new Provost) having collapsed in a heap they tried another one. This week the excuses ran out and the council rejected the appointment altogether. The council has clearly taken leave of its collective senses.

Many years ago, owing to some quirks in the constitution of the University of Lancaster, I was a member of that university’s Council for a total of five years. Nothing remotely like this ever happened. There are good reasons for this.

Contrary to what some members of the HKU version apparently believe, it is not the job of the University Council to run the university. Power in universities is deliberately divided between the Senate and the Council. The Senate is an academic body whose members are engaged in teaching and research. These matters are the main purpose and function of the university and they are properly a matter for the Senate and its off-shoots. There are, however, matters involved in the management of a university which do not involve teaching and research as such. Scholars are supposed to be unworldly creatures who should not be left by themselves to deal with members of notoriously shady professions like building and banking. The purpose of the Council is to provide the input of lay people – who in academic terms are amateurs – on practical matters. It should ensure that the university is not bankrupt, is adequately housed, conforms to the law and responds appropriately to external conditions like the demand for particular kinds of graduate in the labour market.

The requirement that senior posts be endorsed by the council is supposed to ensure that the number of expensive appointments is not unreasonable in the light of the university’s needs and resources. It is not intended to allow lay members of the council to make their own personal assessments of the merits of individual candidates, and impose them on the university.

This is particularly the case when the search was presided over by the Vice Chancellor. The V-C is the full-time specialist administrator responsible for running the university and while I can recall Council members expressing misgivings about particular policies or ideas, I can recall no occasion when the V-C’s clearly expressed views were contradicted or ignored. Indeed this is so unusual that I am rather surprised the Vice Chancellor concerned has taken it so calmly. In such a situation many people would be considering resignation. If the council makes it impossible for anyone else to run the university without interference they will soon find that a “search committee” — supposing anyone is prepared to waste his time by sitting on it — is not finding anyone worth hiring.

The ensuing discussion of the veto has been illuminating, mainly because the student rep on the Council, one Billy Fung, decided that it would be of some public interest if he disclosed what was actually said in the meeting. This produced much huffing and puffing about confidentiality, but there is, as they say, a time and a place for everything. There have also been some disputes over the accuracy of Mr Fung’s recollections. So let us not go into exquisite details. Clearly, though, some of the discussion revealed more ignorance than enlightenment. They also revealed an interesting contradiction. If this is an academic appointment, requiring particular qualifications or a substantial research background, then that is not a matter for the Council. They are not themselves academics. The composition of the search committee should reflect the requirements of the job, and their view on the matter should prevail. If on the other hand this is an administrative post, then the matter of qualifications, experience and publications should not arise. There is no need for administrators to be scholars. When I was a student at Kings College London it was being run, with great success, by a gentleman whose previous appointment was as the General Commanding the British Army of the Rhine. Most administrators in those days had chosen it as a career after graduation, started as departmental administrators and worked their way up. They did not have PhDs. I think this is still the case in many places and I was rather surprised to find so many PhDs in university administration in Hong Kong. I do not think this has anything to do with the job requirements. Academics like producing PhDs because every research student is also a teaching assistant. So there is a surplus.

The other interesting revelation produced by Mr Fung’s indiscretion is provided by the diligence of reporters asking council members who voted against the appointment what they had to say on the matter. Quite a lot of “no comment”, of course. Arthur Li came out squirting venom – “This guy is a liar” – as is his personal habit. Also revealing a nasty side was Leonie Ki Man-fung, who combined her “no comment” with a vicious personal attack on Mr Fung, who apparently, among other sins, has “no integrity”. Coming from someone who can look back with pride on a long career in advertising and PR this is a bit rich.

What the councillors did not say was as interesting as what they did. Nobody, apparently, at any point mentioned the word “occupy”. Clearly they think we’re all very stupid…

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