CATHOLIC NEWS OF THE WEEK . Saturday, 20 May 2017

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Cardinal Zen speaks on what has been lost to education and to Hong Kong

 Dear friends in the media

 

The process of the judicial review on the Education (Amendment) Ordinance 2004 (Amended Ordinance) has reached its end.

The Catholic Diocese of Hong Kong has expressed disappointment at the judgment of the Court of Final Appeal, but at the same time has reaffirmed its decision to carry on its educational endeavour (within the constraints of that Ordinance).

I take this opportunity to reaffirm that I have never said that we would stop promoting education if we lost the case in the court.

What I said is, “Under the Amended Ordinance, we would have no more, as in the past, the guarantee that we can run our schools according to our vision and mission. Then, one day, we would face the fact that some of our schools can no longer be called Catholic schools and that we may be forced to withdraw from them.”

To abandon education just because we lost this case was never in our mind and we think such a move would not get the support of the parents or our students.

As to the question of whether we would consider civil disobedience, my answer is, “In this case, civil disobedience would mean running schools in a manner contrary to the demands of the Amended Ordinance. Then, as a result, we would be forced to surrender the schools. Since I said that we have no intention of surrendering any school, civil disobedience is out of the question.”

Then, what have I to say to our friends in the media who have taken the trouble to come here this morning?

I am a Salesian of Don Bosco. For many years I had responsibility as the manager of all Salesian Schools in Hong Kong in my capacity as vice-provincial and provincial of the congregation.

I have also been at the front-line as a supervisor of our Aberdeen Technical School. At the beginning of the 1970s, I took part in the General Assembly of the Salesian Congregation.

We spent much time discussing the Catholic vision of education and what we call an Educational Community, which corresponds to the spirit of school-based management.

Since the year 2000, I have been busy fighting the government on its so-called School-Based Management Ordinance project, from its consultation period through to the legislating process.

Upon my retirement as bishop of Hong Kong, my successor, Most Reverend John Tong, invited me to stay on in the Diocesan Commission, which, because of its importance, had a deep interest in and care concerning the outcome of the court case.

Now, before putting that important event among the matters of past history, I have the responsibility and, I hope, the competence (of a Church person working for many years in the voluntary service of education) to address you on it, and, through you, to address the whole of society, both in Hong Kong and internationally (that is, our many friends in the world who care for the future of education in Hong Kong).

I am going to make a synthetic report on what we actually did over the past 10 years or so, and on why we are opposed to the Education (Amendment) Ordinance 2004.

I owe this to the many friends who have supported our action during these years, especially those who rendered legal service to us on a voluntary basis and those who are ready to share our financial burden.

I owe this also to many, especially missionaries, who, in very difficult times, have dedicated their lives to education in Hong Kong and have left such a precious legacy to us for safe-keeping.

 

A little recent history

Immediately after the return of Hong Kong to Chinese sovereignty a new chairperson of the Education Commission, Mr. Leung Kam Chung, took office and, without delay, set up a Special Commission, which in the year 2000 issued the so-called Consultation Document on school-based management.

It was already obvious at that time that the purpose of that project was to limit our rights in our running of running schools.

Mr. Leung Kam Chung declared publicly that the government was going to make a revolutionary reform in education in Hong Kong and that one of the three major obstacles in its way was the sponsoring bodies, especially the big ones, consequently, something had to be done to get rid of them.

The Consultation Document played on the word management and it was an easy game to pass from management to management committee, so a jump was made from school-based management to School-Based Management Committee.

But, school-management has many different levels. The highest level of management in schools, always under the higher supervision of the government, is the Management Committee.

To support a school-based management system does not entail a school-based Incorporated Management Committee (IMC).

Actually, Report No. 7, issued by the Education Commission in September 1997 under the chairpersonship of Professor Rosie Young Tse-tse, clearly stated that to achieve school-based management, it is not necessary to uniformly adopt a new form of Management Committee.

The Hong Kong experience shows that the structure adopted by some traditional school-sponsoring bodies to be equally as effective in achieving that purpose.

But, to enhance the school-based management spirit, it was recommended that a School Executive Committee (SEC) be established under the School Management Committee (SMC) to allow for more participation on the part of the stake-holders (this is what has been called the two-tier structure of school management).

In this way, actually, the Report, which deals with the problem of structure, was the conclusion of the whole process of the School Management Initiative (SMI), started in 1991.

Unfortunately, Report No. 7 was not taken into due consideration or, more accurately, was unceremoniously dismissed without being put to the test through experimentation.

To say, as the government tried to have people believe, that the IMC was a continuation of the SMI project, does not correspond with reality.

It was something completely new. And to say that the IMC was necessary because the SMI project went too slowly is also unreasonable. By what standard can you say that the schools were too slow in adopting the SMI?

A new spirit needs time to be developed. On the part of the Catholic schools, we wholeheartedly accepted the SMI from the very beginning.

However, now we have to say that the new proposal of the IMC destroyed a structure, which had proved very effective for a long time.

In fact, it has taken away our long-possessed right of running schools.

It has destroyed the good cooperation between the government and us, the school-sponsoring bodies, who are the main partners with the government in providing education.

But everybody knows that we find ourselves in a new situation, with a new government, and with a completely new ideology behind government decisions.

The government has taken away the right to run schools from school-sponsoring bodies, calling it decentralisation, but, actually, it is the decentralisation of schools away from the school-sponsoring bodies, to centralise schools under the absolute power of the government.

The good people in both Church and society are always reluctant to believe in any so-called conspiracy theory.

Only after the events of 2003 did they wake up, but it was too late for the matter we are dealing with at this moment.

Through clever packaging and a strenuous advertising campaign, the government succeeded in misleading the people and the draft of the Amended Ordinance, proposed in 2002, was swiftly passed in 2004 as the Education (Amendment) Ordinance 2004 by the Legislative Council.

The efforts of the school-sponsoring bodies and of some legislators succeeded only in obtaining a period of tolerance before the law was to come into effect in 2010. Later this deadline was postponed to 2012.

The Hong Kong Diocese, having noticed that the Amended Ordinance had even breached the Basic Law, saw the eventual possibility a judicial review.

After careful consideration, it decided to bring the case to court. You all know, how we failed in the Court of First Instance and also in the Court of Appeal.

Given the importance of the matter, we decided to push the case to the Court of Final Appeal. Unfortunately, even there, we failed to get a positive outcome.

We respect the authority of the courts. We bear the legal impact of their judgments. We do not have to agree, however, that we were wrong in our demand.

Mr. Justice Bokhary has invited us to put everything behind us, once and for all. I agree. That is why I hope this is the last time I have to speak out.

But I must leave a record for history of our unchanged belief that the Education (Amendment) Ordinance 2004 has seriously damaged our right in the running of schools and is against what is granted in the Basic Law.

I am deeply grieved by the loss of our right, which is also the loss of one of the most precious features of Hong Kong life.

 

The Education (Amendment) Ordinance 2004 has seriously damaged our right in the running of schools

Actually, even the judge of the Court of First Instance recognised that the amendments to the Amended Ordinance make a material change in education policy.

I think this is what the above-mentioned government official called a revolutionary change.

To pass from the right to nominate all the managers of schools to the right to be entitled only to nominate a portion of them is a radical change.

The judges insist that we still have the possibility of nominating up to 60 per cent of the managers, that the Amended Ordinance says that the sponsoring bodies may present a draft of their School Constitution which, once approved, must be respected by the IMC, and that the sponsoring bodies can supervise the operations of the IMC.

All this sounds good, but what are the guarantees? Where are the mechanisms for ensuring the above mentioned respect on the part of the IMC for the constitution and the supervision by the school-sponsoring bodies over school operations?

We have to point out that, according to our previous practice, it was the religious organisation, as the school-sponsoring body that ran the schools and exercised autonomy over them.

In the future, autonomy will be exercised by the IMC of each school. That is to say, we, the sponsoring bodies, simply will not be running our schools any longer.

It will be the individual IMC of each particular school that runs the school.

(We can help the government to start a school, but, once the IMC is set up, we can no longer run it. As I have sometimes said, it is like giving birth to a child and then immediately giving it away.)

Even though we can nominate up to 60 per cent of the managers on the Management Committee, they are supposed to act according to their own views and there is no guarantee that they will always be in agreement with the mind of the sponsoring body.

It is true that we can present the draft of a School Constitution, but it needs the approval of the government.

Once the IMC is functioning, it can request some modifications to the said constitution and the government has the power to approve or reject them.

After all, the vision and mission in running schools, once it is put in  writing, becomes a dead letter.

The real spirit lives in the persons.

People outside a community of belief cannot easily discern whether a concrete proposal is in agreement with the stated vision and mission of the school or not.

The fact that the school-sponsoring bodies can nominate up to 60 per cent of the managers is not a sufficient guarantee that the IMC will respect the constitution.

People with direct experience in education know very well that, in educational matters, you cannot solve problems just by a majority voting down a minority.

In education, consensus is paramount. If one person with strong opposition to our vision and mission in running schools happens to become a member of the IMC, this person can create havoc.

(For example, if a teacher-manager or parent-manager pushes for more national education in the school).

In such a case, the 60 per cent of the managers may not be able to defend the School Constitution. 

Then the school-sponsoring body will have no mechanism to intervene and the whole problem will have to be dealt with by the government.

It is true that such an eventuality could also happen under the old legislation.

The school-sponsoring bodies may have invited the wrong people onto a Management Committee, but that would have been accidental and not caused by the mechanism itself.

Even if such an accident happened, the principle of priority was in place. (According to this principle, in matters regarding the approval or disapproval of managers, the government is bound to give priority to the opinion of the school-sponsoring body rather than to that of the Management Committee).

Obviously, there is no longer such a provision in the new law.

To understand better the disadvantaged position of the managers nominated by the school-sponsoring bodies, we have to take note of the following points.

In the old legislation, the whole Management Committee was a united body.

Principals and teachers were employed by them and consequently were employees. Now, according to the Amended Ordinance, the principal-managers, teacher-managers and parent-managers, being persons who are connected directly with the life of the school, may tend to consider themselves as insiders and the sponsoring body managers may be considered by them to be outsiders.

The key-point here is really whether you can nominate all the managers and have a supervisor with effective power or not.

Only if you can give an affirmative answer to this question, could we have the guarantee that we are able to run schools according to the Catholic vision and mission.

As noted by some judges, what I have described as the full control of the Management Committee had no guarantee in the letter of the old law.

According to the law, only the Management Committee had legal power. What I have described, however, was the factual reality, the accepted practice.

Given the need of a better guarantee after the 1997 handover, the Basic Law formulated Article 141(3) for this purpose (just as the principle of priority, which had been in practice for many years, had to be written into the law [Section 72A], when the need was realised).

 

Does Article 136 (1) of the Basic Law take away our right of running schools granted by Article 141 (3)?

There is a well-known legal principle that one should assume that there is no contradiction in the same set of laws, otherwise one would assume self-contradiction on the part of the law-makers.

Now, the Basic Law is one unified set of laws and it includes both Article 136(1) and Article 141(3).

While Article 136(1) says that the government has the right to promote education reforms, Article 141(3) says that the religious bodies have the right to continue to run schools according to their previous practice.

In comparison, Article 136 (1) states a general principle, while Article 141(3) is a specific provision concerning only a religious organisation. Now, the general principle does not nullify the specific provision. Actually, Article 141(3) sets the bottom line of Article 136(1).

To say that Article 136(1) overrides Article 141(3) is to suppose that the legislator made a mistake in approving Article 141(3).

Conversely, when we uphold the value of Article 141(3), we are not lessening the value of Article 136(1).

We recognise that education needs continuous and various reforms, but always safeguarding the rights acknowledged in
Article 141(3), that is, the right of religious bodies to run schools according to previous practice, just as the big promise during the handover was 50 years no change, but nobody would consider Article 136(1) of the Basic Law to be in contravention of this slogan.

What should not be changed are the fundamental elements of the system. Changes are reasonable, but they should not damage the fundamental system of Hong Kong.

It is wrong to say that when we want to uphold Article 141(3) we are claiming a right of universal veto. We surely accept the supervision of the government on our schools according to law.

In the old law, there were so many reminders of this highest level of supervision of schools by the government.

In the same way, when we say that we have the absolute control of our schools, we surely understand that this is under the higher supervision of the government.

(In this sense, we have wholeheartedly accepted the spirit of the school-based management project. We have welcomed the active participation of the stake-holders in the management of the school, we have even invited into the Management Committee itself teachers and parents who are in full agreement with our vision and mission. After Report No. 7 was issued, we demanded from all our schools that another structural tier be set in place to allow the stake-holders to have more participation in the running of the schools.)

 

What is being guaranteed by Article 141(3) of the Basic Law is precisely our right of running schools, but in the Education (Amendment) Ordinance 2004 this right has been damaged or we can even say it has been taken away

We have emphasised that the clause “according to previous practice” in Article 141 (3) of the Basic Law is not superfluous and the judges of the Court of Final Appeal agree.

Actually, to run schools according to the previous practice is the same as to “really run schools,” while according to the Amended Ordinance we are no longer the ones who run the schools.

The clause “according to the previous practice” is directly connected to “running schools.” The problem here lies in the phrase “the running of the school,” that is, where does the power to govern the school and set the direction of the school reside.

It is about how we can effectively run our schools according to our vision and mission.

Regretfully, as we mentioned, the Consultation Paper in the year 2000 had already tried to ignore the different levels of management, confusing the highest level at the Management Committee with other levels of dealing with education matters.

The Court of Appeal further weakened the solemn meaning of “management,” using the words “managerial matters,” as if they were only about minor details of daily operations.

We insist that the power at the highest level of management ensures the realisation of the vision and mission of our Catholic education, which is not only the unifying element of our schools in Hong Kong, but also constitutes the standard of Catholic education all over the world.

This Catholic education has proven to be effective and appreciated even by non-believers.

The judges of the Court of Final Appeal, in agreement with us and in disapproval of the Court of Appeal, have recognised that the clause “according to previous practice” is relevant.

However, they still dismissed our claim that Article 141(3) of the Basic Law should protect our right to have the complete control of the management of all our schools.

Actually, the Court of Final Appeal has given a new, extremely restrictive interpretation of Article 141(3) of the Basic Law, saying that it is (only) the (strictly) “religious dimension” in educational practice that “receives protection.”

Then it goes on to mention several concrete activities, like morning prayer and religious instruction, as expressions of this religious dimension.

Since these (activities) have not been banned by the Amended Ordinance, the new Amended Ordinance has not breached Article 141(3) of the Basic Law.

It is our firm belief that Article 141(3) of the Basic Law is not only about the religious dimension as understood in such a narrow sense, even less is it about only specific concrete religious activities, as exemplified by the judges.

Instead, it is about our right to govern the schools (that is the meaning of running schools), to ensure that Catholic schools are run according to the Catholic vision and mission, to ensure the achievement of the goal of a holistic education. It is about morality and the view of life.

Actually, I would say that what the Court of Final Appeal recognised in Article 141 (3) of the Basic Law is both too little and too much.

It is too little because the content of religious and moral education is far more important than some concrete religious activities.

It is too much, because I doubt whether some examples mentioned by the court as not banned by the Amended Ordinance, could be taken as being obviously granted.

We would be all too happy if this were truly so. Still, we would certainly not give the same importance to such activities as to the Catholic principles of moral education.

 

Other points that are not directly relevant to the legal dispute

It seems odd that nowhere in this controversial case has any clarification been given about the duties of a School Management Committee.

In my view, a good division of duties is important for the fair and effective management of a school.

In my humble opinion, the first primary duty of the School Management Committee should be the supervision of the school personnel.

Now, under the Amended Ordinance, this duty is performed by the IMC, whose members include persons to be supervised.

So they are going to supervise themselves! Every time that the IMC has to discuss matters, like the behaviour or performance of the principal or the teachers, the principal or teacher-manager(s) must leave the meeting!

 The second primary duty of a School Management Committee seems to concern finances.

In the hypothesis of a two-tier management structure, even though conflicts of interest may arise in discussions in the SEC, for example, the annual budget, the SMC with its higher and disinterested vision, could settle any controversy in a fair way.

Now, with the IMC, every conflict of interest goes into this highest and only management structure. It is not difficult to see how inconvenient this is.

As regards all other more routine matters in daily school management, in a two-tiered structure these can be thoroughly discussed in the SEC, receiving only general approval from the SMC.

Now, must all these matters be discussed from scratch in the IMC?

Before the Amended Ordinance, the school-sponsoring bodies, especially those that sponsored several schools, had the power of nominating all managers. It was an intermediate body between the government and the individual school.

Everybody knows that the intermediate bodies have been a beneficial check and balance on government power and, consequently, they have been beneficial in promoting an effective democracy in society.

Presenting the new system as more democratic is to put things upside down, distorting the true meaning of reality.

Democracy within the school can be effectively guaranteed by the two-tiered structure, but the IMC system is meant to increase the dictatorial power of the government.

How can one expect principals and teachers of individual schools, who are all paid by the government, to confront the government as equals?

 

Conclusion

Dear friends, the decision of the Court of Final Appeal is final.

So we will not be given a further chance to clarify anything in court. We regret that our claim has not been recognised. We grieve, but we do not despair.

God is the Lord of history. We throw all our worries on him. He takes care of us.

May He grant that, through the support of our educational ideal by our Catholic and non-Catholic friends, a truly Catholic education can still be offered in the schools which bear the name Catholic, so that young people may understand and pursue the real goal of human existence and contribute to a happy and meaningful life for everybody in society.

I am ready to answer two or three questions. After that, to show my grief, I will, for three days and three nights abstain from food, except for water and Holy Communion.

I do not want anybody to join this expression of my grief, but I would be grateful for spiritual accompaniment through prayer during these days.

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