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1. 2020年7月27日,香港浸會大學 (浸大) 決定不再與其社工系講師邵家臻續約,合約定於2020年8月31日完結。浸大並未就此提供理由。

2. 翌日,香港大學校務委員會 (校委會)(以18比2的票數)以戴耀廷在2014年讓愛與和平佔領中環運動(佔中運動)的定罪為理由,撤銷戴耀廷法律學院副教授之職。值得注意的是,戴耀廷正就其定罪及刑期等候上訴。

3. 法政匯思譴責這兩項決定。邵家臻和戴耀廷二人皆為敢言民主派人士,積極投身佔中運動(亦因此被拘捕和定罪)。顯而易見地,二人被大學撤職的主要原因與他們的政治立場有關。

4. 值得注意的是,在戴耀廷的個案中:

4.1. 香港法例第1053章《香港大學條例》第12(9)條訂明 (香港大學條例),校委會不得終止副教授的聘任,除非校委會對有關事實妥為作出調查,及在接獲教務委員會 (教委會) 就該項調查結果所提供的意見後,認為有好的因由終止聘任。第2(2)條清楚列明「“好的因由”一詞當用於免職、罷免成員身分或罷免職分以及用於條例及規程所指定的大學成員、主管人員和教師時,指無能力有效率地執行有關職位的職責、疏於職守或使任職者不適宜繼續任職的公職上或私下的不當行為」。

4.2. 教委會已考慮過戴耀廷的個案。教委會:(i) 主要由香港大學 (港大) 的教職員所組成; 以及 (ii) 是港大的”主要管治機關”. 在仔細考慮個案後,教委會決定,雖然戴耀廷確犯有不當行為,但校方並沒有”好的因由”將他解僱。教委會就此已對校委會作出相應建議。

4.3. 然而,校委會鮮有地違反慣例,不理會教委會的建議而撤戴耀廷之職。校委會是次行為背後有清晰可見的政治考慮。值得注意的是(與教委會不同),校委會的大部分成員都是校外人士。 當中一部分成員由香港特別行政區行政長官直接任命。校委會主席李國章身為行政長官轄下行政會議的一員,是行政長官林鄭月娥的親近顧問。中聯辦(在校委會作出決定後立即)發表的聲明,稱讚該撤職決定為「懲惡揚善、順應民心的正義之舉」,可視為戴耀廷因政治考慮而被撤職的進一步證據。

4.4. 再者,鑑於戴耀廷對定罪的上訴仍待香港法院審理,校委會此時作出解僱戴耀廷的決定應當受到質疑。戴耀延的定罪完全有可能因上訴而被推翻;在這情況下,即使校委會恢復戴耀廷的教席,他的職業,學術工作和聲譽已經受到嚴重和不可挽回的傷害。

5. 就邵家臻的情況而言,有確實理由相信他不獲續約的決定是出於政治動機:

5.1. 儘管浸大是一個受公共資助的機構,而該決定顯然會引起公眾極大關注,但浸大沒有為其決定提供任何解釋。

5.2. 邵家臻因其於佔中運動的角色被定罪,浸大因而展開了内部紀律調查。 可是,浸大在該調查尚未完結時,便決定終止了邵家臻的僱傭合約。

5.3. 再者,基於邵家臻就其控罪的上訴仍待香港法院受審一點(如戴耀廷之情況),浸大撤邵家臻之職的決定是否恰當應受嚴重質疑。

5.4. 值得注意的是,浸大校董會(跟香港大學校委會相似)的多數成員都是大學的局外人,其中許多人(包括主席、副主席和司庫)是由香港特別行政區行政長官直接任命。

6. 基本法第137條訂明,各類院校均可保留其自主性並享有學術自由。各種跡象顯示,解僱戴耀廷及邵家臻不獲續約均清楚反映政治干預的存在,並嚴重破壞受《基本法》保障的自治和學術自由。這反映了香港言論自由的倒退,並對學者產生寒蟬效應,他們尤其可能因表達對政府不滿或反對聲音而有可能失去其職位。這嚴重損害香港高等教育的競爭力。從個人層面而言,戴耀廷被不合理開除教席及邵家臻不獲續約都是對他們各自所屬的學術界的一大損失。

7. 我們亦參照聯合國經濟,社會,文化權利委員會第13條一般性意見(關於《經濟、社會和文化權利國際公約》第13條所保障的教育之權利)第38-40段:

“38… 根據本委員會的經驗,高等教育教職員及學生尤其容易受政治等壓力,以致削弱學術自由。

“39… 學術自由允許個人以其工作機構或制度自由發表意見,讓他們在不受歧視或擔心被國家或任何其他角色壓制的前提下履行其職,參加專業或具代表性的學術機構,在同一個國家管轄範圍內享受別人能夠享受到的國際公認的人權。

40. 要享有學術自由,高等教育機構需要擁有自治權。 自治權是高等教育機構對其學術工作、標準、管理及相關活動作出有效決策所需的自決程度……”

8. 港大校委會與浸大對兩名受尊敬的教職員作出撤職決定純屬受外部政治影響,此番決定違背了學術自由的國際標準,令人深感遺憾。

9. 法政匯思在此強烈敦促香港大學與浸會大學撤銷有關對戴耀廷及邵家臻的決定,並採取一切必要措施維護學術及言論自由。

法政匯思
2020年7月31日

(PDF版本: https://bit.ly/3k0q5wW)

<Statement on the Termination of Employment of
Benny Tai Yiu-ting and Shiu Ka-chun>

1. On 27 July 2020, Hong Kong Baptist University (“HKBU”) decided not to renew lecturer Shiu Ka-chun’s contract (which was set to expire on 31 August 2020). HKBU provided no explanation for the decision.

2. On the following day, the Council of the University of Hong Kong (“HKU”) (by a vote of 18 to 2) dismissed Benny Tai Yiu-ting from his position as associate law professor, citing his criminal convictions over the 2014 “Occupy Central Movement with Love and Peace” (“OCLP”). It should be noted that Mr Tai’s convictions are currently pending appeal.

3. The Progressive Lawyers Group (the “PLG”) condemns these decisions. Both Mr Tai and Mr Shiu are outspoken pro-democracy activists and were actively involved in OCLP (which resulted in their convictions). It is clear that their political stance played a key part in their universities’ decisions to terminate their employment.

4. In particular, in the case of Mr Tai:

4.1. Under section 12(9) of the University of Hong Kong Ordinance (Cap.1053) (“HKU Ordinance”), an associate professor cannot be removed from office in the absence of “good cause”. This is defined in section 2(2) of the HKU Ordinance as the “inability to perform efficiently the duties of the office, neglect of duty, or such misconduct, whether in an official or a private capacity, as renders the holder unfit to continue in office.”

4.2. Mr Tai’s case had already been considered by the Senate of HKU. The Senate: (i) is primarily composed of academic staff from within HKU itself; and (ii) is HKU’s “principal academic authority”. After considering the case in detail, the Senate decided that, although Mr Tai had committed misconduct, there was no “good cause” to dismiss him. The Senate therefore advised the Council accordingly.

4.3. However, in an unusual breach of convention, the Council disregarded the Senate’s advice and dismissed Mr Tai. There is a clear inference that the Council’s action was motivated by political considerations. It is notable that (unlike the Senate), the majority of the Council’s members are from outside the university. This includes numerous members who are directly appointed by the Chief Executive of the HKSAR. The chairman of the Council, Professor Arthur Li, is a close advisor of Chief Executive Carrie Lam (being a member of her Executive Council). Further evidence of the political motivations behind Mr Tai’s termination came in the form of statement issued (immediately after the Council’s decision) by the Liaison Office of the Central People’s Government, which praised the dismissal as an act that punished “evil” and upheld justice.

4.4. Moreover, it is seriously questionable whether it was appropriate for the Council to dismiss Mr Tai given that his appeal against his conviction is still pending before the Hong Kong court. It is entirely possible that Mr Tai’s conviction may be overturned on appeal; in that event, even if the Council reinstates Mr Tai’s appointment, grave and irrevocable harm would have already been done to his career, academic work, and reputation.

5. In the case of Mr Shiu, there is also cogent evidence that the non-renewal of his contract was politically motivated:

5.1. HKBU failed to provide any explanation for its decision, even though the decision was obviously a matter of great public interest, and despite the fact that HKBU is a publicly-funded institution.

5.2. HKBU had launched an internal disciplinary investigation as a result of Mr Shiu’s conviction for his role in OCLP. That investigation has not yet been completed, but HKBU still decided to effectively terminate Mr Shiu’s employment.

5.3. Further (as with Mr Tai) it is seriously questionable whether it was appropriate for HKBU to decide to terminate Mr Shiu’s employment, given that his appeal against his conviction is still pending before the Hong Kong courts.

5.4. It is notable that HKBU’s governing council (like the Council of HKU) has a majority of members who are outsiders to the university, with many of them (including the chairman, deputy chairman, and treasurer) being appointed directly by the Chief Executive of HKSAR.
6. Under Article 137 of the Basic Law, educational institutions may retain their autonomy and enjoy academic freedom. The circumstances surrounding Mr Tai’s dismissal and Mr Shiu’s non-renewal are clearly indicative of external political influence and seriously undermine the autonomy and academic freedom protected by the Basic Law. It reflects the deterioration of freedom of expression in Hong Kong and has a chilling effect, particularly on academics who are at risk of losing their positions for voicing dissatisfaction with or opposition to the government. Such deterioration severely undermines the competitiveness of higher education in Hong Kong. On a personal level, the termination of employment of Mr Tai and Mr Shiu are a great loss to their respective academic fields.

7. We would also refer to the UN Committee on Economic, Social and Cultural Rights’ General Comment No 13 (regarding the right to education guaranteed by Article 13 of the International Covenant on Economic, Social and Cultural Rights), at §§38-40:

“38…in the Committee’s experience, staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom.

39… 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 recognized human rights applicable to other individuals in the same jurisdiction.

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…”

8. The decisions by the HKU Council and HKBU to dismiss two respected faculty members, which were plainly motivated by outside political influences, are highly regrettable and in conflict with international standards of academic freedom.

9. The PLG strongly urges HKU and HKBU to reverse their decisions regarding Mr Tai and Mr Shiu; and to take all necessary steps to safeguard academic freedom and free expression.

Progressive Lawyers Group
31 July 2020

(PDF version: https://bit.ly/3k0q5wW)