Review Report on the HKU Council Chairman Appointment 2018

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Review Report on the HKU Council Chairman Appointment 2018 2nd Edition

February 2019

HKU Council Chairman Appointment Review Commission 2018 The Hong Kong University Students’ Union Council Session 2018

Š 2019 by The Hong Kong University Studentsʟ Union Council All rights reserved Printed in Hong Kong

Content 5 6

Background The Review

6

Terms of Reference

7

Membership

7

Our Process

8 11

Executive Summary The Core Values of Higher Education Governance

13

Institutional Autonomy and Academic Freedom

14

Institutional Autonomy and Public Accountability

17

The Council

18

The University of Hong Kong Ordinance and Statues

20

The Historical Development of the Council

22

The Unjustified Influence by the Chancellor

23

Role and Power of the Council Chairman

25

The Current Situation

26

Current Appointment Procedures and Its Flaws

27

Trustee Model is not a Justification

28

Negligence of the Fit For Purpose Report

33

Comparative Analysis

34

The Two-tier Search/Selection Mechanism for Next President & Vice-Chancellor

35

The 1912 Model

36

The CUHK Model

39

Proposed Appointment Procedures

40

Mechanism

41

Nomination Committee for the Next Council Chairman

42

Eligibility of the Council Chairman

43

Amendments to the Statutes

45 48 50 54

Way Forward References Appendix I Appendix II

5

Background 1.

The Council of the University of Hong Kong (hereinafter “the Council”) is the supreme governing body and the heart of the operation in the University. It had caught the public’s attention that the Chief Executive and Chancellor of the University would appoint a new Council Chairman after the Council Chairmanship of Dr LEONG Che-hung came to its end in 2015. Prof the Hon Arthur LI, who had publicly criticised students and members of the teaching staff, became the Council Chairman despite the great opposition from students. The appointment eventually led to a student-initiated class boycott campaign and subsequent protests. The Union later raised the following appeals: 1. The Chief Executive shall never be the ex-officio Chancellor; 2. University members shall take up at least half of the seats in the Council; 3. All members (including the Chairman) who are currently appointed by the Chief Executive shall be appointed by the Council.

2.

Arthur LI was appointed by the Chancellor again as the Council Chairman on 14 December 2018, which was publicly resisted and opposed by students, staff and alumni. The Hong Kong University Students’ Union (hereinafter “HKUSU”) found it a pressing matter to be reviewed, and that students’ opinion should be included and respected in the construction of university governance.

6

The Review 3.

This is a report of the HKU Council Chairman Appointment Review Commission 2018, The Hong Kong University Students’ Union Council, Session 2018 (hereinafter “the Commission”), which was formally established by The Hong Kong University Students’ Union Council, Session 2018 (hereinafter “HKUSU Council”) at its 9th Ordinary Council Meeting to review the appointment of HKU Council Chairmanship in 2018.

Terms of Reference

4.

The terms of reference of the Commission were: Section I – Purpose • To review the appointment of HKU Council Chairmanship in 2018.

Section II – Responsibilities • The Commission shall be responsible for reviewing the appointment of the HKU Council chairmanship in 2018.

• The Commission shall consolidate and represent students’ opinions and interests in the review.

• The Commission shall issue and submit a review report to the Union Council.

Section III – Membership • President [Commissioner] • University Affairs Secretary [Vice-Commissioner] • General Secretary [Secretary] • Faculty Councillor of the University Affairs Committee, HKUSU Council • Hall Councillor of the University Affairs Committee, HKUSU Council • Popularly Elected Union Councillor of the University Affairs Committee, HKUSU Council • Full Members of the University Affairs Committee, HKUSU Council • 6 non-executive councillors Section IV – Meetings • A simple majority of Members of the Commission shall form a quorum.

• At least three clear days’ notice shall be served for all regular commission meetings.

An agenda shall also be issued at least three clear days before the meeting. At least twenty-four hours shall be served for all emergency meetings of the Commission and an agenda shall also be issued at least twenty-four hours before the meeting.

Section V – Terms of Office • The terms of office will terminate on 1 March 2019.

7

Membership

5.

The members of the Commission were the following: • • • • • • • • • • • • • • • • •

WONG Davin Kenneth LEI Tsz Shing LEUNG Ho Long NG Wing Yan CHANG Wai Yan PANG Chik Him YU Lok Tin YU Truston Jianheng LEUNG Nok Yan Joanna LI Hoi Pui Jasmine LAU Lok Yiu TING Ho Tin LAU Ho Yin SHUM Chung Kit TSE Tze Yung CHAN Edward Kai Kit LAI Yu Kiu

[Faculty of Law] (Commissioner) [Faculty of Arts] (Vice-Commissioner) [Faculty of Arts] (Secretary) [Faculty of Arts] [Faculty of Social Sciences] [Faculty of Science] [Faculty of Business and Economics] [Faculty of Social Sciences] [Li Ka Shing Faculty of Medicine] [Faculty of Architecture] [Faculty of Arts] [Faculty of Law] [Faculty of Law] [Faculty of Education] [Li Ka Shing Faculty of Medicine] [Li Ka Shing Faculty of Medicine] [Faculty of Engineering]

Our Process

6.

The Commission met on 3 January 2019, 19 January 2019 and 25 January 2019 to discuss and review the appointment of HKU Council Chairman. This report was received and adopted by the Commission on 25 January 2019.

7.

Members were divided into three sub-groups, namely the research group, the publication and publicity group, and the interview group: •

•

•

8.

The research group was responsible for writing the report on the review of the HKU Council Chairman appointment, conducting relevant research and suggesting different proposals on future appointments; The publication and publicity group was in charge of publicising the work of the Commission, such as the Commission Report and General Polling, as well as issuing related publication; The interview group was responsible for interviewing different stakeholders and providing first-hand material for the review.

The Commission conducted numerous meetings and consultations with students and other stakeholders, and collected valuable opinions and inputs. The Commission thanks all Union sub-organisations for their effort and help in facilitating the review and collection of opinions.

8

Executive Summary 9.

Prof the Hon Arthur LI was twice appointed as the Chairman of the Council of the University of Hong Kong despite University members’ strong opposition. On his reappointment in 2018, The Hong Kong University Students’ Union Council established the HKU Council Chairman Appointment Review Commission 2018 to review the appointment of the HKU Council Chairman. This Review Report draws reference to some past reports on university governance and current and past appointment procedures of senior university management, and proposes amendments to the HKU Statutes on reforming the appointment procedures of the HKU Council Chairman which are built on important values of the University.

10.

The intertwined principles of institutional autonomy and academic freedom form the backbone of good university governance. Often juxtaposed with them is the want for public accountability of the University as a publicly funded institution. Good public accountability should nonetheless not be achieved by the Chancellor taking up substantive role in the university’s governance, as the balance would then become vulnerable between institutional autonomy and accountability. Ultimately, the University Grants Committee should be the body responsible for ensuring public funds are being used in an open and proper manner.

11.

The Council is the supreme governing body of the University. Its Chairman is a lay member appointed by the Chancellor, who is the Chief Executive of the Hong Kong Special Administrative Region, by virtue of Statute XVIII. Any amendments to the Statutes would need to be proposed by the Council to the Court, which would then make recommendations to the Chancellor. Such amendments the Chancellor would make would be gazetted and subject to negative vetting in the Legislative Council.

12.

Despite multiple reforms of the University’s governance structure since its establishment in 1912, the Chancellor’s role has been, and should remain, ceremonial. In contrast, the Council Chairman holds great substantive powers in terms of steering discussion of the Council and acting on its behalf when it is not in session. The significance of these powers requires that the Council has trust and confidence in its chair, and this cannot be achieved if the Chancellor is vested with sole power of appointment.

13.

In 2015, the Council commissioned an independent panel to review university governance.

The panel’s suggestion that the Chancellor should delegate to the Council the power to appoint its chair was subsequently rejected and an Advisory Committee was established to advise the Chancellor on suitable chair candidates. This Advisory Committee, nonetheless, is not answerable to the Council and has no binding authority. This has failed to address the lack of trust between the Council Chairman and the Council, as ultimately the Chancellor may still neglect, unbeknownst to the Council, the Advisory Committee and appoint someone to her own liking.

9

14.

This report draws reference to the two-tier selection process of the President and ViceChancellor, the composition and appointment procedures of the Council in 1912 and the CUHK Model. Taking into account the various elements from these models, it is recommended that: 1.

2.

3.

4.

5.

The Council should establish a Nomination Committee for the Next Council Chairman that will be responsible for nominating candidates(s) for the Chairmanship.

The Nomination Committee should consist of three lay members, the President and Vice-Chancellor, the Treasurer, one representative of the employees and teachers, one student and the Registrar being the Secretary. The Committee should consult University members before reporting nominated candidate(s) to the Council.

The power to appoint the next Council Chairman should be vested in the Council upon nomination by the Nomination Committee. If the Council refuses to appoint a proposed candidate, a Nomination Committee should be formed and the process start anew.

The Chancellorship should remain ceremonial as regards University business. As the appointment of the Council Chairman has substantive bearings on University governance and business, the power to appoint the Chairman should no longer be vested in the Chancellor but in the Council. A mere common understanding that the Chancellor would defer the substantive decision to the Council does not provide sufficient reassurance against political interference with institutional autonomy.

Amendments to the Statutes should accordingly be made to alter the appointing body of the Council Chairman, but the extent of amendment should be minimal.

The Council should institutionalise the establishment of a Nomination Committee and other procedures to provide, on the one hand, security, and on the other flexibility to the mechanism.

12

The Core Values of Higher Education Governance 15.

All students and members in HKU regard academic freedom and institutional autonomy as the core values of the University. The Higher Education Code of Governance by the Committee of University Chairmen (hereinafter “the CUC Code”), to which the Governance in UGC-funded Higher Education Institutions in Hong Kong: Report of the University Grants Committee

by Sir Howard NEWBY CBE (hereinafter “the Newby Report”) drew great reference, stated the following core values to which a good governing body of higher education institutions shall commit:1 1.

2.

3.

4.

5.

“autonomy as the best guarantee of quality and international reputation; academic freedom and high-quality research, scholarships and teaching; protecting the collective student interest through good governance; the publication of accurate and transparent information that is publicly accessible; a recognition that accountability for funding derived directly from stakeholders requires higher education institutions to be clear that they are in a contract with stakeholders who pay for their service and expect clarity about what is received; 6. the achievement of equality of opportunity and diversity throughout the institution; 7. the principle that higher education should be available to all those who are able to benefit from it; and 8. full and transparent accountability for public funding.”

16.

To perceive the core values of good governance in public-funded higher education institutions, it is inevitable to study and understand the relationship between institutional autonomy and academic freedom, and the balance between institutional autonomy and public accountability.

1 Committee of University Chairmen, “The Higher Education Code of Governance” (December 2014), Section 1, p.7

13

Institutional Autonomy and Academic Freedom

17.

As stated in Article 137 of the Basic Law, “Educational institutions of all kinds may retain their autonomy and enjoy academic freedom”, which is further specified in the Notes on Procedures by University Grants Committee (hereinafter “UGC”) that institutions enjoy autonomy in the development of curricula and academic standards, selection of staff and students, initiation and conduct of research, internal allocation of resources, etc.2 It highlighted the importance of institutional autonomy and academic freedom to the governance of an educational institution. Additionally, academic freedom shall include the freedom of expression of each individual in the institution; even with controversial or unpopular opinion,3 the principle shall prevail.

18.

The ideas of institutional autonomy and academic freedom are rather ambiguous and abstract, with the fact that they can hardly be quantified, plus the lack of universal standard for autonomy and freedom. Still, the society shall unquestionably be benefited in the sense of bringing new discoveries and insights by exploring the unknown fearlessly. Thus, it is the institution’s responsibility to safeguard and build an environment favorable to the above.

19.

The relationship between institutional autonomy and academic freedom is seldom illustrated explicitly. Nonetheless, the General Comment No.13 of the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter “General Comment No.13”) by the United Nations Economic and Social Council suggested “The enjoyment of academic freedom requires the autonomy of institutions of higher education”.4 The former emphasises the individual level while the latter focuses on the institutional level.

Institutional autonomy allows the University to cope with its internal affairs independently, without any external interference, political pressure for instance. Academic freedom would not exist if the University restricted the selection of staffs as well as the accessibility to resources owing to their political background or unpopular opinion. Hence, the freedom of expression in relation to academics may not be guaranteed. It is clear that their relationship is close and can hardly be separated.

2 University Grant Committee, ‘Notes on Procedures’ (2017), p.12-13 3 ibid., para 34, p.12 4 United Nations Economic and Social Council, ‘General Comment No.13 of the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (December 1999), para 40, p.9

14

Institutional Autonomy and Public Accountability

20.

The conflict between the value of institutional autonomy and the duty of public accountability has always been the greatest challenge to the University and the higher education sector as a whole. As a public-funded university, HKU has an undeniable duty to be accountable for public funding in a full and transparent manner. Nonetheless, institutional autonomy has been not only the essence of the reputation of the University but a necessity for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities.5

21.

Different reports and documents have been trying to illustrate the relationship between autonomy and public accountability of a higher institution. As the Newby Report illustrates, between autonomy and accountability “there is always a balance to be struck … (the balance) can shift over time in accordance with changes in the external environment and there can certainly be no assumption that, whatever the current state of affairs, it represents an optimum solution to the relationship between autonomy and accountability”.6

22.

The General Comment No.13 describes the appropriate institutional arrangements under such balance shall be “fair, just and equitable, and as transparent and participatory as possible”. The Commission notices that the guidance that the Newby Report and the General Comment No.13 attempted to illustrate is vague and dubious. It is in fact very difficult to draw a clear line and Hong Kong has a long way from formulating a clear statement or memorandum setting out the roles and responsibilities of the government and higher education institutions, not to mention the significant risk of permitting the government to penetrate operational affairs of universities by means of such statement or memorandum.

Nonetheless, none of the abovementioned guidance specifically illustrates the bilateral relationship between the institutions and the government. In light of the respect to institutional autonomy, the Commission deems the best illustration of the balance between autonomy and accountability is that higher education institutions are required to do nothing more than necessary in fulfilling accountability.

23.

In the relationship between autonomy and accountability, the UGC acts as an agency for the government and a buffer body to proclaim and put the balance into operation, by distributing public funds to the eight institutions and formulating the distribution of funds that the UGC “seeks to incentivise the (higher education) sector to pursue certain policy goals”.7 By allocating fundings through policies formulated, the UGC, as a funding agency, controls a significant proportion of the income of the eight higher education institutions, which is a great tool in the hand of the UGC that can steer not only a particular institution but the whole sector to achieve public goals.

5 ibid., para 40, p.9 6 Newby, “Governance in UGC-funded Higher Education Institutions in Hong Kong- Report of the University Grants Committee” (September 2015), p.24 7 ibid.

15

24.

Although the UGC has its limitations in power, this does not justify the UGC or even the government to have greater power to intervene institutional autonomy. In all the eight bilateral relationships between the government and public-funded higher institutions, the former is in a stronger position in intervening the institutions and even the relationship itself, with the UGC holding the power in controlling a significant proportion of the institutions’ income. Therefore, it would be unrealistic to require the party with greater power to restrain themselves, let alone to respect the autonomy of another party. We think it is more appropriate and proportionate, regarding the context of the relationship between institutional autonomy and public accountability, to require higher education institutions to fulfil public accountability to an extent that is no more than necessary.

25.

The idea of public accountability is based on the substantial public funding given to higher education institutions. In other words, institutions shall be held accountable for the use of public fundings. As the UGC is the agency allocating funding to its funded institutions, it is sufficient for institutions to fulfil accountability by following the UGC’s policies. Despite the flaws in the UGC’s existing policies, which is completely another subject matter, exercises such as the Academic Development Proposal and the Research Assessment Exercise are coherent with the objective of effectively holding institutions accountable to public fundings, along with the establishment of an annual written accountability framework suggested by the Newby Report.

26.

For that reason, penetration to operational affairs of institutions, which is within the scope of institutional autonomy, including intervening the composition and appointments of members in governing body, cannot be justified on the ground of public accountability, which is more than necessary to fulfil accountability in light of the context of higher education policies and bureaucracy in Hong Kong. Amendments shall be made to the UGC’s policies and formulation of funding allocation in order to adjust to changes in external environment, instead of placing institutional autonomy, the best guarantee of quality and international reputation, at greater risk.

For that reason, penetration to operational affairs of institutions, which is within the scope of institutional autonomy, including intervening the composition and appointments of membersThe University of Hong Kong Ordinance and

Statutes

18

The Council The University of Hong Kong Ordinance and Statutes

27.

The governance and administration of the University shall be conducted in accordance to the Ordinance and the Statutes. The Council is stipulated in both the Ordinance and the Statutes. The Ordinance stipulates the role of the Council as “the supreme governing body of the University, and shall provide for the custody and use of the University seal, and subject to the provisions of this Ordinance and the statutes, the Council may exercise all the powers and is to perform all the duties of the University other than those vested or imposed by this Ordinance or the statutes in some other authority of the University or in an officer”.8

28.

Statute XVIII further elaborates on the power of the Council, as well as spelling out its composition in subsection (1): (a) 7 persons, not being students or employees of the University, appointed by the Chancellor, one of whom shall be appointed the Chairman by the Chancellor; (b) 6 persons, not being students or employees of the University, appointed by the Council; (c) 2 persons, not being students or employees of the University, elected by the Court under sub-subparagraph (ba) of Statute XVII; (d) the Vice-Chancellor; (e) the Treasurer; (f) 4 full-time teachers elected in accordance with regulations; (g) 1 full-time employee of the University, not being a teacher, elected in accordance with regulations; (h) 1 full-time undergraduate student elected in accordance with regulations; and (i) 1 full-time postgraduate student elected in accordance with regulations. (L.N. 186 of 2003)

29.

The power of appointing the Council Chairman is stated in Statute XVIII, that it is vested solely in the Chancellor.

30.

It is noteworthy that the Ordinance is a primary legislation and the Statutes are subsidiary legislation. Therefore, they differ significantly in terms of their enactment and amendments. The Ordinance is enacted by the legislature and every amendments to the Ordinance should be passed in the Legislative Council (hereinafter “the LegCo”).

8 Art 7(3), University of Hong Kong Ordinance (Cap 1053, Laws of Hong Kong)

19

31.

Subsidiary legislation means “any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect”.9 The Statutes, as prescribed in Article 13 of the Ordinance, are enacted and can be amended by the University. Article 13 of the Ordinance clearly stipulates that “the Council may propose to the Court additions to, or the amendment or repeal of, any of the statutes, whereupon on the recommendation by the Court to the Chancellor, the Chancellor may make any such addition, amendment, or repeal as recommended by the Court”. In fact, the University has been amending the Statutes from time to time. The Council proposed to the Court amendments to the Statutes in both 2018 and 2019. Amending the Statutes is not an alienated practice for the University.

32.

The Commission notes that, in light of Section 34 of the Interpretation and General Clauses Ordinance, any amendment to the Statutes shall undergo the negative vetting procedures in the LegCo. When an amendment to the Statutes is gazetted, it shall be laid on the table of the LegCo at its meetings. The LegCo may further amend the amendment to the Statutes so gazetted by a resolution passed at a LegCo meeting held not later than 28 days after the meeting at which it was so laid.

33.

The University had experience in amending the Statutes and undergoing the negative vetting procedures. In the LegCo Brief on the Statutes of the University of Hong Kong (Amendment) Statute 2018,10 in January 2018, the University proposed to amend Statute III, which included additions of 2 bachelor's degrees, 7 master's degrees, 1 doctor's degree and 1 postgraduate diploma which may be conferred or awarded by the University; and amendments to the Chinese titles of 4 diplomas. The amendments came into operation on 1 April 2018, without further amendment by the LegCo.

34.

The Commission notes The University of Hong Kong (Amendment) Bill 2010 (hereinafter “the Bill”), which amended Statutes XII, XIX and XXVIII. The LegCo established the Bills Committee on University of Hong Kong (Amendment) Bill 201011 and took around one year to discuss the amendments before the Bill was passed. Nonetheless, the Commission notes the Bill included both amendments to the Ordinance and the Statutes, where amendments to the Statutes were passed to act in concert with the changes in the Ordinance. It was just a convenient move to amend both the Ordinance and the Statutes in the same bill for consistency. It is, therefore, in the Commission’s understanding that should amendments be made purely to the Statutes but not the Ordinance, the amendments shall be in effect subject only to negative vetting procedures.

9 Art 3, Interpretation and General Clauses Ordinance (Cap 1, Laws of Hong Kong) 10 Available at https://www.legco.gov.hk/yr17-18/english/subleg/brief/2018ln011_brf.pdf (visited 21 January 2019) 11 Available at https://www.legco.gov.hk/yr10-11/english/bills/brief/b16_brf.pdf (visited 21 January 2019)

20

35.

The Commission deems that the LegCo should be reluctant of violating institutional autonomy should the LegCo plans to further amend the amendment made by the University. It is clear that the legislative intent of having both the Ordinance and the Statutes is to define the scope of institutional autonomy, where the University shall enjoy autonomy over the policies stipulated in the Statutes. The LegCo should respect this legislative intent.

The Historical Development of the Council

36.

The Council has long been an irreplaceable part of HKU’s governance structure since its establishment in 1912. Review panels and working groups on governance structure have been established over the past century, and the University has been undeniably eager to reform the Council to facilitate the University’s operations.

37.

The Council used to serve as the executive body of the University, and is the supreme governing body these days. It shall be purely supervisory, overseeing and ensuring smooth operation of the University.12 The President and Vice-Chancellor shall take up the executive role of the University.

38.

According to the Ordinance, the Council shall exercise all the powers and perform all the duties of the University as stated. Its scope of powers and duties has been largely expanded as the Fit for Purpose Report recommended. The respective article was amended by substituting “it shall administer the property and manage the affairs of the University”13 with the current statement. Moreover, the critical powers that the Council holds shall have never been overlooked though its powers and duties have generally remained unchanged since 1912. The Council is authorised to draft the Statutes for the sake of proposing amendments, to manage the finances and to oversee related decisions, to delegate its power to any Council member, committee, officer or teacher, etc.14 The University is indeed in the control of the Council to a large extent.

39.

The composition of the Council has evolved throughout its history, in particular the appointment procedures of the Council Chairman. The first Council Chairman was elected from among the Council members. As amended in 1921 and 1939, the Council was chaired by the Chancellor and the Vice-Chancellor respectively, no longer involving any election process. The Council Chairman appointment procedures have continued this tradition, with the Chairman being appointed by the Chancellor since 1967.

12 Grant, Kirby and Nguyen, “The Report of the Review Panel on University Governance” (February 2017), para 74, p. 24 13 University of Hong Kong (Amendment) Ordinance 2011 (No 20 of 2011) 14 Statute XIX (2), University of Hong Kong Ordinance (Cap 1053, Laws of Hong Kong)

21

40.

The Council consisted of the following members in 1912: “The Vice-Chancellor; The Treasurer of the University; The Pro-Vice-Chancellor; The Director of Public Works; The Registrar General; The Principal Civil Medical Officer; The Director of Education; 2 British members and 4 Chinese members of the Court elected by the Court; 4 members of the Senate elected by the Senate, of whom 2 shall be Professors or Lecturers whose services are exclusively at the disposal of the University, and two other Lecturers.”15

41.

It consisted of a total of 17 members, 11 of them being internal members of the University while the rest being uncertain. In addition, the lay members were members of the Court and elected by the Court. It implied that all of the members had certain understanding on University affairs.

42.

The current composition of the Council rests heavily on the recommendation given by the Fit for Purpose Report: “On the composition of the Council, there should be a clear majority of lay members and the ratio of external to University members should be about 2:1. On the assumption that the optimal size of the University Council is about 21 members, it would be composed as follows: •

14 members would be persons who are not students or employed by the University: 6 of whom would be appointed by the Chancellor in consultation with the Council Chairman; 6 appointed by the Council itself; and the remaining 2 elected by the Court. The lay members would be drawn from the graduates of the University, the corporate sector and the professions, the wider local community, and the international community.

•

7 members would be university staff or students. The Vice-Chancellor would be an ex-officio member. The other 6 members would comprise 2 students – 1 undergraduate and 1 postgraduate; 3 teachers – at least 1 chair professor and 1 non-professorial member of Senate; and 1 non-teacher who is not an officer as defined in the University of Hong Kong Ordinance.

No student or staff member shall serve on Council whilst an office holder of the Students’ Union or Staff Associations respectively. With the exception of the ViceChancellor, no member of the Council may serve more than three consecutive terms of three years each, unless each further term of appointment is specifically approved by the Court.”16 15 Statute, University of Hong Kong Ordinance (Cap 1053, Laws of Hong Kong) (Part 2 of 1912) 16 Niland, Rudenstine, Li, “Fit for Purpose: A Review of Governance and Management Structures at the University of Hong Kong” (February 2003), para 36, p.13

22

43.

Adopting the recommendation, the Council is now formed by 24 members while the ratio of members of the University to lay members is 9:15. Yet, the formation of internal members in the Council is slightly different from the recommendation. Apart from the President, the Vice-Chancellor and the Treasurer, the other 7 members comprise 2 students (1 elected full-time undergraduate and 1 elected full-time postgraduate), 4 elected teachers and 1 elected full-time employee of the University.

The Unjustified Influence by the Chancellor

44.

With the current Council composition, the Chancellor has the power to appoint 7 lay members and one of them shall be the Council Chairman. This is worrying for many students and staff of the University. With the reappointment of Arthur LI in 2018, this is an issue that needs to be addressed seriously and immediately.

45.

The Commission suggests taking most universities in the United Kingdom as examples, such as the University of Bristol, University College London and the University of Warwick. The Chancellor should be purely honorary and ceremonial. Therefore, the Council Chairman shall be appointed by means other than directly by the Chancellor.

46.

There are three particular pieces of evidence showing that the Chancellor shall only remain as the titular head of the University. In the LegCo in 1994, LAM Woon-kwong, the then Secretary for Education and Manpower articulated that “The Governor will remain the titular head of the institution by assuming the new Chancellor” during the LegCo’s examination on the City Polytechnic of Hong Kong (Amendment) Bill 1994, the Hong Kong Baptist College (Amendment) Bill 1994, and the Hong Kong Polytechnic (Amendment) Bill 1994. It is important to note that the three universities may not have the same governing structure as HKU. However, it is comparable because the Chief Executive has the exact same role and more or less the same power for all universities in Hong Kong. 5 years later, after the handover, the Chancellor and Chief Executive at the time, TUNG Chee-hwa stated in a government press17 that he “has decided to continue his chancellorship in all tertiary institutions so as to maintain the traditional links with these institutions and to show support for the tertiary education sector.” The last piece of evidence is demonstrated in a document released by the Education and Manpower Bureau in response to the allegations and views made by Individual/Organizations Concerning Academic Freedom and Institutional Autonomy in 2007.18 It stated that “the CE as Chancellor of our tertiary institutions, traditionally, the CE (and the former Governors) is the titular head of our tertiary institutions, the purpose of which is to maintain the linkages between the Administration and the institutions and to demonstrate the Government’s support for the higher education sector. The main duties of the Chancellor are to confer degrees and other honorary awards as recommended by the institutions. Such powers are specified under the governing ordinances of the institutions.” It is ironic that Arthur LI was the Secretary for Education and Manpower Bureau at that time.

17 “Lingnan College acquires university title and status,” HKSAR Government Press Release, 16 June 1999.

18 “The Administration’s Response to the Allegations and Views made by Individual/Organizations Concerning Academic Freedom and Institutional Autonomy” (2007) Legislative Council Panel on Education

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47.

It is important to realise that in the three pieces of information provided above, none had provided justifications as to the powers vested in the Chancellor, including the appointment of the Council Chairman. In the future, the Chancellor shall remain ceremonial and should not induce unnecessary influence on university policies

Role and Power of the Council Chairman

48.

There is no express provision in the Ordinance or the Statutes which designates the role and power of the Council Chairman. While it has been common understanding that the power of the Council Chairman is significant, his role and the exercise of his powers were contained directly in the Guide and Code of Practice for Members of the Council.19

49.

The Guide provides for the Council Chairman’s responsibility in vague, general terms for the “leadership of the Council”.20 This includes promoting its well-being and efficient operations, ensuring its members work together effectively, and leading the Council to handle routine and non-controversial matters in a business-like manner. The Chairman also works closely with the President and Vice-Chancellor, “without being drawn into the day-to-day executive management”. Both should be “mutually supportive” while incorporating suitable checks and balances.

50.

The Chairman is also vested with delegated authority which the Council pleases to grant him. This authority includes that to act on the Council’s behalf between meetings, which actions normally include routine business that does not require merited discussions. A Chairman’s action may also include one that is aimed at responding to urgent affairs. The Chairman, when faced with important, urgent matters that delay of a decision on which would “disadvantage the University”, may call a special meeting, invite Council members to consider the matter in circulation or take a Chairman’s action. A Chairman’s action, as a matter of course, must not be taken lightly without serious deliberation, and must never exceed the scope of the delegated authority granted to the Chairman by the Council. A Chairman’s action is to be reported in a subsequent Council meeting, the Chairman being answerable to the Council.

51.

The Council Chairman is vested with great power not only to administer the operations of the Council, but more importantly to represent it and act on its behalf whenever it is not in session. The significance of this power inevitably requires that the Council has confidence in its own chair, for it would be incoherent to ask the Council to delegate the authority to act in its name to a chair whom Council members barely support. In other words, whether a Council Chairman will be able to fully honour his responsibilities would depend largely upon whether he commands the trust of those delegating the authority to him. If the Chairman happens to be, as it now is, appointed by somebody not within the Council itself to his own liking, then there runs inescapably a higher risk of that Chairman failing to gain the confidence necessary for him.

19 The University of Hong Kong, “Guide and Code of Practice for Members of the Council” (August 2015).

20 ibid., p 27.

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The Current Situation Current Appointment Procedures and Their Flaws

52.

On 14 December 2018, Arthur LI was appointed by the Chancellor, who had received advice from the Advisory Committee on Council Chairmanship (hereinafter “the Advisory Committee”), as the Council Chairman for three years from 2019 to 2021. The Advisory Committee is a committee established by the Council for the first time in HKU history.

53.

The Advisory Committee was established based on the suggestion made by the Working Party on the Recommendations of the Review Panel on University Governance (hereinafter “the Working Party”), which was adopted by the Council on 27 June 2017. The Working Party consisted of six Council members, chaired by lay Council member Dr T. Brian STEVENSON.21 The Working Party was established by the Council at its meeting on 28 February 2017, and to look into the individual recommendations in the Report of the Review Panel on University Governance (hereinafter “the Grant Report” ) and addendum.22

54.

The establishment of the Advisory Committee was never suggested nor mentioned in the Grant Report. The Grant Report was written by the Review Panel on University Governance (hereinafter “the Review Panel”), chaired by Professor Sir Malcolm GRANT, with Professor William C. KIRBY and Mr Peter NGUYEN as members. The Review Panel suggested the incoming Chancellor delegating to the Council the power to nominate its future members and Chairman.23 This recommendation was made on the bases that the Chancellor should become largely honorary and that the substantive powers held by the Chancellor to appoint not only the Chairman but 6 further members of the Council has led to deep suspicion that the powers could be used for political patronage.24 Such political patronage, if materialised, will be an indisputable political interference and harm to institutional autonomy.

55.

The Working Party rejected the recommendation by the Review Panel and offered the Advisory Committee as an alternative suggestion. The Working Party considered “‘institutionalising’ these procedures as better means than both delegation of power, which is ad hoc in nature, and amending legislation, which is time consuming and uncertain in result”.25

21 The rest of the members of the Working Party were Professor H.L. CHAN, Professor Joseph C. W. CHAN, Mrs Ayesha M. LAU, Dr Patrick S. C. POON and Professor Rosie T. T. YOUNG. 22 Working Party on the Recommendations of the Review Panel on University Governance, “Report of the Working Party” (27 June 2017), para 1 23 See n12 above, para 101, p. 32 24 ibid., para 94, p.30 25 See n22 above, Appendix B, p.6

27

56.

The Advisory Committee was tasked to advise the Chancellor on the recent developments in the University, to make suggestions of possible candidates to the Chancellor who will then make the appointment at his/her full discretion, and to advise the Chancellor on any other issues relating to the appointment of Council Chairman. It was chaired by the ProChancellor, with three other members: the President and Vice-Chancellor, the Treasurer and a member of the Council elected by the Council,26 who was Professor Rosie T. T. YOUNG.

57.

The Commission considers that the design of the Advisory Committee failed to address the existing lack of trust and confidence between the Council Chairman and the rest of the members of the University, and the insecurity of institutional autonomy. The Advisory Committee was not answerable to the Council or any members of the University, nor was it required to consolidate opinions from any members of the University. Any decisions it had made on the appointment of the Council Chairman was not binding on the Chancellor and was nothing more than pieces of advice. The Advisory Committee itself, holding no substantive powers, is merely decorative. It is suggested the Advisory Committee not be taken as a reference when contemplating future reforms in the appointment procedures of the Council Chairman.

Trustee Model is not a Justification

58.

As suggested by the Fit for Purpose Report, the Council adopted a trustee model in its operation: “Council should be regarded as the de facto supreme governing body of the University, and its size should be set in the range of 18 to 24, with each member appointed or elected ad personam and serving as trustee rather than delegate or representative of a particular constituency”.27

59.

The Commission finds that members of the Council do not act as bare trustees but are more suitably described as agents in a fiduciary relationship. In a bare trust, the trustee has no discretion and is bound to follow the instructions of the beneficiary,28 while the exercise of a discretionary power in managing another’s affairs is an essential feature of a fiduciary relationship.29 The two hallmarks to recognise an ad hoc fiduciary relationship, as suggested by the Supreme Court of Canada in Galambos v Perez,30 further ascertain that the relationship between the Council and the members of the University is fiduciary: 1) all members of the Council signed an express undertaking to act in the best interest of the University; 2) the Council has discretionary power to affect the University’s legal and practical interests.

26 See n22 above, Annex II of Appendix C 27 See n16 above, para 33, p.12 28 Virgo, The Principles of Equity & Trusts (Oxford, U.K. : Oxford University Press, 2012), p.60 29 Birks, “Equity in the Modern Law: an Exercise in Taxonomy” (1996) 26 University of Western Australia Law Review 1, 18.

30 2009 SCC 48

28

60.

Under the trustee model, the Council Chairman shall act in the best interest of the University regardless of the appointment method and manner. However, it is not, and never should be, an excuse for a poorly designed appointment procedure. Rather, the appointment procedures should assist the implementation of the trustee model in the operation of the Council. In the light of the practice and operation of the Council, it shall lay fiduciary duty on individual members for their decisions and behaviours in the Council.

In other words, the trustee model shall only be used to guide and confine the behaviour and conduct of members of the Council, and it could not explain, let alone justify the appointment procedures of any member or why there shall be different appointment methods for different members.

61.

The current obstacles of implementing the trustee model is the lack of trust and confidence between the Council Chairman (and the Council itself) and the members of the University.

In the case of Bristol and West Building Society v Mothew31 (hereinafter “Bristol v Mothew”), the court held that the essence of a fiduciary relationship is that the fiduciary has undertaken to act for or on behalf of somebody else in circumstances that give rise to a relationship of trust and confidence. Millet J also pointed out in Bristol v Mothew32 that one is a fiduciary because one is subject to the fiduciary obligation, which is an obligation of loyalty. The University is entitled to the single-minded loyalty of the Council members. Hence, the relationship of trust and confidence is not a prerequisite for the Council Chairman to be a trustee of the University.

62.

The actual implementation of the trustee model has unfortunately fallen short of what is expected of it, a relationship of trust and confidence that could have arisen from the fiduciary obligations of Council members. The lack of trust and confidence has brought skepticism to the Council’s governance, thus a great challenge and threat to the University governance.

Negligence of the Fit For Purpose Report

63.

The current composition of the Council originates heavily from the recommendation given by the Fit for Purpose Report. The Fit for Purpose Report took a great extent of referencing of the Higher Education in the learning society: report of the National Committee of Inquiry into Higher Education by the Dearing Committee (hereinafter “the Dearing Report”), which suggests: “Effective governing bodies will have a majority of lay members. They will need nominations committees or an equivalent mechanism to ensure they find members of the highest individual calibre. We would urge employers to contribute to the work of governing bodies by responding sympathetically to approaches for their staff to serve as members and by helping them to make a meaningful contribution.

Governing bodies will also want to ensure a balance of new and more experienced members. We therefore consider that governing body members should not serve for more than two terms, usually three to four years each, unless they also hold office.

Once appointed, members must act in the best interests of the institution and not as delegates of a particular constituency. There should be a register of members’ interests.”33

31 [1998] Ch 1, 18 32 See n21 above 33 The Dearing Committee, “Higher Education in the learning society: report of the National Committee of Inquiry into Higher Education” (London: HSMO 1997), para 15.45

29

64.

This is also cited as quotation 35 in Appendix C in the Fit for Purpose Report. Elements of these recommendations suggested by the Dearing Committee, such as the majority of lay members and the practice of holding office for maximum of two terms are now visible in the Council.

65.

The Commission agrees that the Dearing Report is a comprehensive and influential report on higher education not only in the United Kingdom but on a worldwide scale. Nonetheless, we are disappointed the Review Panel on University Governance and Management that wrote the Fit for Purpose Report (hereinafter “the Fit for Purpose Panel”) neglected a crucial point in the Dearing Report regarding the chairman of the governing body.

66.

The Dearing Committee addresses the issue of the appointment of the person to chair a governing body in this manner: “The appointment of a person to chair a governing body is obviously crucial.

Particular arrangements are required. We consider that nomination should usually be made by a committee of members excluding the current holder of the post, and the appointment made by the whole governing body. External involvement in this process, for example, of a senior layperson from another governing body, can be useful. Some appointments are subject to annual confirmation, within the span of a notional term of office which lasts three to four years. There can be advantage in retaining an individual as to chair the governing body for more than one term, but governing bodies should not make such a decision routinely. We can see no circumstances in which an individual should chair a governing body for more than two terms of three to four years, although this could reasonably follow service as an ordinary member”34

67.

We are deeply saddened how the Fit for Purpose Panel failed to address this suggestion in the Dearing Report but quoted another whole paragraph. The Fit for Purpose Panel did not accept or reject, but simply avoided such an important issue. The Fit for Purpose Report has no discussion regarding the appointment of Council Chairman, and we regard this as a negligence of the report.

68.

The Council Chairman plays a key role in the business of the University without being drawn into the day-to-day executive management. Moreover, while the governing body experienced a great structural change after implementing the Fit for Purpose Report, we cannot see why there is no necessity to discuss or to amend the appointment procedures of Council Chairman.

34 ibid., para 15.47

30

69.

The Dearing Report did not elaborate further after para 15.47 regarding the rationale of establishing a mechanism designated for the appointment of the chairman of the governing body. Notwithstanding the lack of elaboration, the rationale behind is conspicuous. Although the Council runs as a trustee model, the fact that all the reviews and recommendations suggest that members of the University, namely staff and students, should be included in the governing body shows the importance of their involvement.

The Council Chairman leads not only a board of trustees but a governing body consisting different members of the University, and a good Council Chairman should trust and be trusted by all the members. If the members in the Council can vest no confidence and trust in the Council Chairman, it is doubtful how the Council Chairman can lead the University to good governance. This differentiates the Council Chairman from the rest of the members in the Council, hence it is simply nonsense that the Council Chairman and lay members of the Council share the same appointment mechanism, for the role and power of the Council Chairman is vastly different from those of lay members. Given the special role of the Council Chairman, a distinctive appointment mechanism should be established which to the very least extent should involve different groups of members in the Council excluding the Council Chairman himself, namely officers, staff, students and lay members.

31

34

Comparative Analysis The Two-tier Search/Selection Mechanism for Next President and Vice-Chancellor

70.

Under the two-tier search/selection mechanism, a Search Committee and a Selection Committee shall be formed.

71.

The Search Committee shall identify and secure outstanding candidates to come forward for the Vice-Chancellorship. The Committee shall comprise four members, including a lay member of the Council appointed by the Council Chairman as the chairman, and three full-time senior professorial teachers at Chair Professor level.

72.

The Selection Committee shall review and assess the suitability of the candidates presented by the Search Committee, interview the shortlisted candidates and agree on a finalist for recommendation to the Council. Chaired by the Council Chairman, the Selection Committee includes ten other members: two lay members of the Council, a Faculty Dean, three full-time professorial teachers, one full-time non-professorial teacher or academicrelated staff member, an alumnus/alumna, a full-time non-academic staff member and a full-time student.

73.

After the Selection Committee recommended to the Council the finalist, the Council shall appoint the new Vice-Chancellor.

74.

The Commission finds that the two-tier search/selection mechanism incompatible with the appointment of Council Chairman. Whether a search tier is necessary in the mechanism depends on the eligibility of becoming a Council Chairman. The Commission thinks that it is not necessary or practical to conduct a global search for candidates for the Council Chairmanship. The candidate for Council Chairmanship shall be one who is capable in leading the Council, with sufficient understanding of the powers and operation of the Council, and building and maintaining the trust and confidence vested in him by members of the University. Therefore, the Commission deems the eligibility of becoming the Council Chairman shall be past council members, not being a current member of the University, which shall be explained later.

35

75.

In spite of the view that the two-tier search/selection mechanism is not suggested to be applied in the appointment of Council Chairman, the composition of the Selection Committee is an ideal composition to address the existing problems. The Selection Committee has one of the widest-covering composition that involves every member of the University: lay members of the Council, officers of the University, staffs, students and alumni. Such composition facilitates the discussion and involvement of all members of the University, which is crucial in building University members’ confidence in the future Council Chairmen and rebuilding trust.

The 1912 Model

76.

The Council in 1912 is the first in the University's history. It serves as the executive body of the University, unlike the current situation where the Council is the supreme governing body. It takes control of many aspects regarding university affairs, such as finances and properties. These are now delegated to different departments, one of them being the UGC. Nevertheless, the appointment of Council Chairman is the focus and the composition shall be discussed in details later on.

77.

As stated in the Statutes of 1912, the Chairman of the Council, other than the first chairman, shall be elected from among its members. The Commission believes this can ensure all members in the Council will have trust in the Council Chairman. The members should have the autonomy and power to choose the one who takes up the leadership.

78.

Moreover, students will regain trust in the running of the University. The Council serves as an important decision-making body and therefore trust is an essential part of how to increase student satisfaction. After the appointment of Arthur LI in 2018 by the Chancellor the responses from different bodies are mainly negative. They doubt the decision of appointing him again ; as a result, they continue to lose trust in the Council. This is damaging for the University.

79.

However, with regard to this model, it is crucial to realise it is composition-dependent.

Under the British rule, most members of the Council were University officers. Nowadays, many of the lay members are chosen by the Chancellor and the Council itself. Due to the higher number of lay members in the current Council, it may be difficult for the Council Chairman to be elected fairly.

80.

Thus, this method should be considered only if the Council has the intention to reconstruct. Nevertheless, it can potentially be one of the easiest methods to solve the problem of appointing the Council Chairman.

36

The CUHK Model

81.

According to the Statutes of The Chinese University of Hong Kong (hereinafter “CUHK”), the Council Chairman shall be appointed by the Chancellor, which is the Chief Executive of HKSAR, on the nomination of the Council. It is also stated that the Council Chairman is selected from Council members of particular categories, including 6 persons nominated by the Chancellor; 3 persons elected by the Unofficial Members of the LegCo from among their own number; not more than 6 other persons, normally resident in Hong Kong, who shall be elected by the Council; and not exceeding 3 members elected by the Convocation from among its members.

82.

The most recent process of the Council Chairman appointment in CUHK could be taken as a reference. In 2015, near the end of tenure of the previous Council Chairman, the Council established the Nomination Committee for the Next Council Chairman. The Committee talked about the roles and responsibilities, and the required knowledge and experience of the Council Chairman. The selection criteria of the Council Chairman were discussed as well. The Committee took careful consideration of the Council members who are eligible for the appointment of Council Chairman. It is noteworthy that the CUHK Council organised an engagement forum to collect the opinions from University staff and students on Council leadership. Having the final decision, the Committee wrote a report which was submitted to the Council for approval. The Chancellor would appoint the nominated Council member as the Council Chairman in usual practice.35

83.

The Council Chairman of CUHK is chosen within certain categories of current Council members, which is stated expressly in the Statutes of The Chinese University of Hong Kong. It is noted that the Council members being qualified to be the Council Chairman are all lay members, with the range of possible nominees being limited. It can be a reference that the Council Chairman cannot be University members due to conflict of interests. However, it has to be further discussed that whether the Council Chairman has to be current Council members.

84.

Furthermore, the CUHK Council has the power to nominate a Council Chairman to the Chancellor. In other words, the Chancellor does not have the power to select a Council Chairman on his/her own basis. The role of the Chancellor tends to become ceremonial and titular in the CUHK model, which could be a reference to the HKU Council Chairman appointment.

35 “CUHK Statement on the Appointment of Next Council Chairman”, The Chinese University of Hong Kong, 20 October 2015.

Available at https://www.cpr.cuhk.edu.hk/en/press_detail.php?id=2102&t=cuhk-statement-on-the-appointment-of-next-councilchairman&id=2102&t=cuhk-statement-on-the-appointment-of-next-council-chairman (visited 15 Jan 2019).

37

85.

The CUHK Council considers the views of different stakeholders concerning the nomination of the Council Chairman. In practice, a public forum, known as the engagement forum, is organised to consult the University staff and students. The involvement of university members in the nomination process of CUHK Council Chairman could be referred to while considering the appointment procedures of HKU Council Chairman.

86.

CUHK, as a fellow university in Hong Kong, has a model of Council Chairman appointment with reference value. Although the governance structure and the Council composition of CUHK is different from those of HKU, which makes the CUHK Model not wholly suitable for HKU, some elements, including the eligibility of the Council Chairman, the role of the Chancellor and the involvement of University members in the Council Chairman appointment procedures, could be taken as references while reviewing the HKU Council Chairman appointment.

40

Proposed Appointment Procedures Mechanism

de facto selection and appointment power of the Council Chairman shall be vested in 87. The the Council. The Commission appreciates the appointment procedures adopted by CUHK,

in which the Council has the power to nominate candidate(s) for Council Chairmanship to the Chancellor. Such procedures allow the Council to have substantive influence on the appointment of the Council Chairman.

88.

The Commission suggests the Council establish the Nomination Committee for the Next Council Chairman (hereinafter “the Nomination Committee�), which shall be responsible for nominating candidate(s) to take up the Council Chairmanship. The Nomination Committee shall put forth the nomination for the consideration of the Council. The Council shall then deliberate and resolve whether to appoint a nominated candidate, and if so and if applicable, which. Should the Council refuse to appoint any candidate nominated by the Nomination Committee, the nomination process shall start over and a new Nomination Committee be formed. In any of the Council meetings which include the procedures above, if the incumbent Council Chairman seeks reappointment, he shall not chair the relevant proceedings.

89.

It should be noted that in the event the term of the incumbent Council Chairman ceases before a new Chairman is appointed because of re-opening of nomination, the Council should, as it has previously done, appoint acting Council Chairman; this shall impose no difficulty to the operation of the Council. Procedural justice shall be placed above efficiency.

90.

The appointment power shall be vested in the Council instead of the Chancellor. The Chancellor was and shall always be a ceremonial role in the business of the University.

The Commission considered vesting the appointment power in the Chancellor and the nomination shall be put forth by the Council, which is identical to the practice in CUHK. However, the Commission deems it unnecessary for the Chancellor to hold the de jure appointment power while the Council holds the de facto appointment power. Moreover, the nature of the appointment power can never be compatible with the ceremonial role of the Chancellor. The appointment of the Council Chairman is, after all, something more than a ceremony in terms of the substantial influence to the governance and business of the University. Other than creating a deep suspicion of political patronage, the Commission cannot find any persuasive ground to vest the de jure appointment power in the Chancellor.

41

Nomination Committee for the Next Council Chairman

91.

The Nomination Committee shall be established one year before the term of the incumbent Council Chairman is due to cease with the following members:

3 lay members of the Council; The President and Vice-Chancellor; The Treasurer; 1 Employee or Teacher seat; 1 Student seat; and the Registrar being the Secretary.

92.

It is reasonable that the Council Chairman shall be chosen by the Council members.

Concerning efficiency, the Nomination Committee shall be established with Council members who are within specific categories. It is recommended that the composition of the Nomination Committee shall include all categories of Council members.

93.

There shall be 3 lay members in the Nomination Committee. It is considered that there are three categories of lay members, including members appointed by the Chancellor, members appointed by the Council, and members elected by the Court. It is not a must that there shall be one lay member from each category. Thus, the number of 3 lay members is set.

94.

There shall be 1 Employee or Teacher seat and 1 Student seat to ensure that the voice of University members can be expressed in the Nomination Committee. The membership of University staff and students in the Council is “integral to the nature of governance at HKU”.36 It is also essential and legitimate to include University members in the Nomination Committee, which is a part of effective university governance.37 According to resolutions of the General Polling held by HKUSU in 2015, the motion that “the post of Chairman of the Council of the University of Hong Kong must be filled by a candidate who is acceptable to the members of its teaching staff, non-academic staff and students” was carried out. In order to respond to the appeal, University staff and student seats are necessary to be included in the Nomination Committee, which play an important role in the appointment procedures of HKU Council Chairman.

36 See n19 above, para 5.9 37 See n33 above, para 15.46

42

95.

The Nomination Committee shall consider the selection criteria of the Council Chairman, search and nominate, with unanimous consent to the Council, candidate(s). The nomination process of the Council Chairman shall involve University members through organising a public forum for direct collection of opinions. Sorting out the information required to select the Council Chairman, the Nomination Committee has to submit a report to the Council to justify its nomination of the Council Chairman for approval.

Eligibility of the Council Chairman

96.

The Commission suggests that only past Council members who are not current members of the University be eligible for becoming the Council Chairman.

97.

The Commission notes the advantage of appointing a lay member as the Council Chairman. Under the trustee model, to facilitate the operation of the model, employees or students cannot be free from conflict of interests in the course of decision-making. The fiduciary obligation bore by members of the Council is an obligation of loyalty, and beneath the umbrella of this loyalty obligations are two fundamental duties, as held by Lord Herschell in Bray v Ford:38 “It is an inflexible rule of a court of equity that a person in a fiduciary position… is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict.”

98.

The Commission fully agrees with the Dearing Report that “effective governing bodies will also, to have legitimacy, include as full members some who are drawn from the students and staff of the institution”.39 The governing body of HKU shall include students and staff in the course of decision-making. However, regarding the conflict of interests inherited in the nature of students and staff, the Commission deems students and staff, and all current members of the University shall not be eligible to take up the Council Chairmanship. In other words, only lay members shall be eligible to take up the Council Chairmanship for the better operation of the trustee model as well as by virtue of the role and power of the Council Chairman.

99.

The Commission further suggests that only past members of the Council shall be eligible to take up Council Chairmanship. By virtue of the role and power of the Council Chairman, the criteria and consideration of appointing a member of the Council and the Council Chairman can be vastly different. The consideration for appointing lay members into the Council can become obscure should the Chancellor, the Council and the Court take into consideration the possibility of the candidate for a lay member seat taking up the Council Chairmanship in the future. This can add so much complexity to the appointments of lay member and their consideration. Moreover, with their experience, past Council members can contribute not only advice and insights to the Council but are also at a better starting point to take up leadership in the Council.

38 [1896] AC 44, 50. See Virgo, The Principles of Equity & Trusts (Oxford, U.K. : Oxford University Press, 2012), p.480 39 See n33 above, para 15.46

43

Amendments to the Statutes

100.

The Commission proposes the following amendments to the Statutes:40 Statute XVIII, paragraph 1Repeal (a) 7 persons, not being students or employees of the University, appointed by the Chancellor, one of whom shall be appointed the Chairman by the Chancellor; Substitute (a) the Chairman, being a past member of the Council, not being students or employees of the University, appointed by the Council; (aa) 6 persons, not being students or employees of the University, appointed by the Chancellor;

101.

The Commission suggests making minimal amendments to the Statutes, which is to vest the appointment power of the Council Chairman in the Council. The insecurity of institutional autonomy and the deep suspicion of political patronage can only be addressed and solved by amending the Statutes accordingly.

102.

The Commission deems it more appropriate to institutionalise the mechanism, including the establishment of the Nomination Committee, to secure flexibility in the mechanism and allow greater efficiency in the implementation of the proposal.

103.

The Review Panel also explored the possibility of amending the Statutes.41 The Review Panel deems amending the Statutes lacks the flexibility and clarity of simple delegation of power by the Chancellor. The Commission disagrees with the Review Panel. When the matters involve institutional autonomy and the values of our University, we want security and certainty over flexibility. Nonetheless, the Commission understands the lack of clarity as legislation can usually be ambiguous. Therefore, the Commission deems institutionalising the Nomination Committee can give sufficient clarity to the appointment procedures, as well as flexibility to cater future environmental changes.

40　The following format of the proposed amendments takes reference from the Statutes of the University of Hong Kong (Amendment) Statute 2018 (L.N. 11 of 2018). Available at https://www.legco.gov.hk/yr17-18/english/subleg/negative/2018ln011-e.pdf (visited 24 Jan 2019) 41　See n12 above, para 102, p.32

46

Way Forward 104.

This report, focussing on how the appointment procedures of the HKU Council Chairman can be reformed, ultimately envisions an improvement in the HKU governance structure. That improvement, however, must in the long run be achieved by joint efforts to reform multiple aspects of the current governance.

105.

The unjustified influence by the Chancellor and the ill-explained composition of the Council are obstacles in the way to better governance of the University. The current composition of the HKU Council may threaten institutional autonomy and academic freedom. As the Chief Executive shall be the Chancellor of HKU, he/she is allowed to appoint 7 members to the Council and 1 of them shall be the Council Chairman.

Meanwhile, the Council shall be authorised on the appointment of Vice-Chancellor and Pro-Vice-Chancellors who are highly influential to HKU’s management. Chief Executive’s dual role may not be able to provide sufficient trust for the public as his/her powers could be treated as a political tool. Therefore, it is uncertain that whether the appointment of Council members and may involve political consideration.

106.

Furthermore, the substantial influence of UGC’s policies requires further review and studies. Students shall continue exhausting our effort in the review of university governance and the policies in the higher education sector.

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References Reports The Dearing Committee, “Higher Education in the learning society: report of the National Committee of Inquiry into Higher Education” (London: HSMO 1997) Grant, Kirby and Nguyen, “The Report of the Review Panel on University Governance” (February 2017) Newby, “Governance in UGC-funded Higher Education Institutions in Hong Kong- Report of the University Grants Committee” (September 2015) Niland, Rudenstine, Li, “Fit for Purpose: A Review of Governance and Management Structures at the University of Hong Kong” (February 2003) Working Party on the Recommendations of the Review Panel on University Governance, “Report of the Working Party” (27 June 2017)

Journals Birks, “Equity in the Modern Law: an Exercise in Taxonomy” (1996) 26 University of Western Australia Law Review 1

Books Virgo, The Principles of Equity & Trusts (Oxford, U.K. : Oxford University Press, 2012)

Hong Kong Legislation Interpretation and General Clauses Ordinance (Cap 1, Laws of Hong Kong) University of Hong Kong Ordinance (Cap 1053, Laws of Hong Kong) University of Hong Kong (Amendment) Ordinance 2011 (No 20 of 2011) Statutes of the University of Hong Kong (Sch., Cap 1053) Statute, University of Hong Kong Ordinance (Cap 1053, Laws of Hong Kong) (Part 2 of 1912) Statutes of the University of Hong Kong (Amendment) Statute 2018 (L.N. 11 of 2018)

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Cases Bray v Ford [1896] AC 44 Bristol and West Building Society v Mothew [1998] Ch 1 Galambos v Perez 2009 SCC 48

Others “The Administration’s Response to the Allegations and Views made by Individual/Organizations Concerning Academic Freedom and Institutional Autonomy” (2007) Legislative Council Panel on Education “CUHK Statement on the Appointment of Next Council Chairman”, The Chinese University of Hong Kong, 20 October 2015 Committee of University Chairmen, “The Higher Education Code of Governance” (December 2014) “Lingnan College acquires university title and status”, HKSAR Government Press Release, 16 June 1999 United Nations Economic and Social Council, ‘General Comment No.13 of the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (December 1999) University Grant Committee, ‘Notes on Procedures’ (2017) The University of Hong Kong, “Guide and Code of Practice for Members of the Council” (August 2015)

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Appendix I Interview with Professor Timothy O’LEARY and Professor Petula Sik Ying HO Professor Timothy O’LEARY is the Honorary Professor in the School of Humanities (Philosophy), Faculty of Arts, HKU. He was a member of the HKU Council from 2015 to 2018.

Professor Petula Sik Ying HO is a professor in the Department of Social Work and Social Administration, Faculty of Social Sciences, HKU. Question:

Some proposed exercises are, the CUHK's model, and model suggested by Alumni Concern Group. What's your opinion?

Professor O’LEARY:

To me these are different kind of exercises because, selection of a Vice Chancellor is selecting anybody in the world. It’s an international search.

For Council Chairman, it’s not a job as in the case of the Vice Chancellor.

It’s a management job. They are different kind of positions. To me, there are different models. One way to do it would be — there are 24 members in the Council, and they select one person among them to be the Chairman. It’s the most suitable. Actually I think it may be a very good way to do it. The chairman shall be internally selected by the Council itself. Obviously, we all know that there had been a big process to change the procedures. The biggest opportunity to change it had happened after the Grant Report in 2015, when I was at HKU, and although the Report recommended the changes, basically little was changed. I’m afraid there is no chance for any change now. As far as the Council is concerned, they are not going to change anything now. But I still think you can continue to make these points — most importantly, that the Chief Executive of Hong Kong shall not be the Chancellor of any of the universities in Hong Kong.

The second point is that the Chancellor shall not have the power to simply appoint the Chairman. Personally, I don’t know if there is much point suggesting alternative models today, just because we have no opportunity to implement them. But I think you can continue to express your views. The current system at HKU has something that looks like consultation, but I don’t believe it is a genuine, meaningful consultation. Now it remains that the Chancellor can do what she wants to do. It does not address the central concern that people have, that is the independence, the autonomy of the University.

51

Professor HO:

I understand the two points suggested by Timothy. They are big principles.

Chief Executive should not hold the post of Chancellor by default. The Chief Executive should not have the power to appoint members and select the Chairman behind closed doors. These views have been talked about all the time but so far nothing has changed. The current mechanism for selecting the Chairman to the Council is that, the Consultative Committee was formed by 4 persons to do the job. The Chief Executive would somehow confirm their suggestions. But the voices of the Council were not adequately heard, because they could only elect one member among them as the representative (Professor Rosie Young) . One member of the selection committee was Arthur Li’s Brother, David Li. This was embarrassing! Then, there was the secretary of the Council. Finally, Professor Xiang, the VC who was very unlikely to object to the appointment of his boss Arthur Li. I do have problems with this 4-person committee. How did we come up with a committee with this kind of composition? We should make changes.

Professor O’LEARY:

This Committee did not elect anyone to be the Chairman. They just made a recommendation to the Chancellor. But in the Committee, only Rossie Young was elected from the Council members. This model was suggested by the 6-person working group after the Grant Report in 2015, and it was accepted as a mechanism to make recommendations. However, there is no requirement for them to consult “outsiders”. It’s a closed door job. I would like to make a point, though it has been raised already: within the mechanism, there is a 4-person committee that includes two brothers: one is the Pro-Chancellor and one is the Council Chairman. I am surprise that this is not seen as scandalous

by Hong Kong people. Also, I don’t think the President is suitable to choose the Chairman of the Council, because in a way the position of the President is not higher than the Council Chairman.

52

Question:

What do you think about the composition of the Advisory Committee?

Professor HO:

There was no transparency. When the six-person advisory group made that recommendation regarding how to select the Chairman of the Council, it was problematic, but they made it appear as if that was the best we could have and there was no way we could fight for more. We have no knowledge about what has happened, what the counter arguments were, and we were given the impression that nothing was possible other than just accepting this six persons’ recommendations. It was demoralizing to see the re-appointment of Arthur Li by this ridiculous committee, with only 4 members. That’s why I had written a long article to talk about how a tyrant could remain in position with the idea of “Tyranny is over, if you want it!”

Professor O’LEARY:

It does make sense for the Students’ Union to point out how unsatisfactory the procedure is. Because it is a very small group and the four people on that panel are not independent enough to be able to make independent recommendations. The President is in a close relation to the Chairman—So they are not independent. There is no consultation. There is no transparency.

I think these are very important points that should be made.

Question:

About the role of Vice-Chancellor, does he have the obligation to consult staff and students about it? Is he responsible to his boss in whatever way? If he were there, would he have certain responsibility to do that?

Professor O’LEARY:

In the current system, I don’t think they have to consult anyone. Presuming the Council elected members, I suppose they should talk to other members of the Council to see how they think of the Chairman—are they happy— and I assumed Professor Young would have found out that 60% of them were happy. So that’s fine.

53

Question:

Can we propose a system whereby we make it possible to have some sorts of participation of the university members?

Professor HO:

At the recent Convocation forum, there was this newly elected Council member, Professor Wu, the Director of Asia Global Institute, who had a good point. He was from the mainland and then he was from Yale and Wisconsin Madison. He made a point at the Convocation meeting which seemed to make a lot of sense. He said for all famous Universities that he has worked with, they always think these council members must have representatives from the alumni. If these council members are not connected with the University, they do not have a stake in the University’s interest, and they will not run the university in ways that will take care of the interest of the staff, the students and the community. He mentioned that a substantial proportion in Yale’s Council are alumni.

Question:

Does it make a difference to amend the Statute or the Ordinance?

Professor O’LEARY:

People often make the argument that you can’t change things because you will never gain a majority in LegCo, especially if you were to suggest taking away power from the Chief Executive. But, you don’t have to try to change the Ordinance of the University of Hong Kong in LegCo. You could also try to make changes in the University Statutes. This would be more limited, but it would be easier to change. You would simply need the Council to make a recommendation to the Court. Of course, even this kind of limited change would be very difficult to achieve today. But still it’s a good argument that, we don’t need to change a lot when we amend the Statutes. We just need the Council and the Court to agree on the changes. They cannot change the role of the Chancellor, but they can change many things in the Council.

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Appendix II Interview with Hon IP Kin Yuen Hon IP Kin Yuen is a member of the Legislative Council for the Education Constituency and the Chief Executive for the Hong Kong Professional Teachers’ Union. He was also one of the founding members of the Democratic Party and its education spokesman until he left the party in 2006.

(The following transcript is only available in Chinese.) 背景資料： 上次修改《香港大學條例》（下稱《條例》）為於 2010 年，港大副校監兼立法會議員 李國寶博士 GBM, GBS, JP 以議員條例草案形式將《2010 年香港大學（修訂）條例草 案》提交立法會審議，將校董會的描述訂為「最高諮詢團體」，而校務委員會的描述 則為「最高管治團體」。 2016 年立法會教育界議員葉建源發表《2016 年香港大學（修訂）條例草案》諮詢稿 ， 目的是廢除行政長官作為校監或監督對院校的實質權力，包括委任校董會或校委會成 員的權力，以確保校監或監督只是名義上的首長，只具禮儀角色，以免大學受政府干 預，從而保障院校自主和學術自由。 問：

為 何 當 初 是 循 修 改《 條 例 》 著 手？ 此 前 有 否 研 究 過 修 改《 香 港大學規程》 （ 下 稱 《 規 程 》 ） ？

答：

我諗特首作為 校 監 嘅 角 色 ，其 實 牽 涉 好 多 嘢 。檢 視《 條 例 》， 包 括 榮 譽 博 士 嘅 頒 發 等， 我 就 一 開 始 係 從 校 監 成 個 角 色 去 諗。 但 其 中 一 個 部 分 係 講 校 委 會 嘅 組 成， 我 哋 其 實 都 冇 諗 到 淨 係 修 改《 規 程 》。 最 近 同 學 生 會 傾 ， 我 哋 都 覺 得 係 好 嘅 。 呢 個 分 為 兩 部 分：《 規 程 》 其 實 係 喺 《 條 例 》 入 邊， 係 有 法 律 地 位， 但 佢 嘅 修 改 唔 需 要 經 立 法 會， 只 需 由 校 委 會 提 出 動 議， 跟 住 過 校 董 會， 然 後 提 交 比 校 監。 其 實 係 一 個 好 好 嘅 做 法， 亦 回 應 咗 校 委 會 較 早 時 收 到 三 人 小 組（ 按： 六 人 小 組 ） 引 述「 因 為 修 改 法 例 太 複 雜 啦， 所 以 要 用 另 一 方 式 去 做 」 。 其 實 而 家 大 家 都 知 道， 根 本 唔 涉 及 修 改 法 例 嘅。 所 以 今 次 修 改《 規 程 》 其 實 係 好 嘅 做 法。 其 他 涉 及 校 委 會 組 成 嘅 問 題 ， 的 確 係 涉 及 法 例， 係 繁 複 好 多， 就 要 由 另 外 方 式 去 做（ 按 ： 即修改《條例 》 ） 。

55

問：

可 否 介 紹 你 2016 年 的《2017 年 香 港 大 學（ 修 訂 ） 條 例 草 案》？進度如 何 ？ 現 時 有 何 計 劃 ？

答：

首先要交上律政司審視成個草案法律嘅格式如何，而家係符 合 喇， 所 以 第 一 階 段 已 經 完 成。 但 其 實 而 家 只 係 第 一 階 段 ， 你 睇 下 個 條 例 草 案 係 2017 年， 今 年 係 2019， 所 以 要 再 申 請， 成 為《2019 年 香 港 大 學 （ 修 訂 ） 條 例 草 案 》 ， 所 以 要 重 返 步 驟 一， 但 係 好 簡 單 ， 改 個 名 就 OK（ 可 以 ） 。 之 後 我 將 會 交 上去立法會教育事務委員會開會傾，過去蔣麗芸做主席嘅時 候 傾 唔 到， 但 而 家 我 哋 做 好 晒 準 備。 教 育 事 務 委 員 會 傾 完 之 後， 就 會 徵 求 特 首 同 意， 佢 覺 得 係 行 得 通、 唔 會 改 變 政 策 ， 就 會 交 上 大 會。 我 覺 得 難 度 係 好 大， 通 過 機 會 係 好 微。 點 都 好，我都係希望 可 以 喺 立 法 會 討 論 到 佢 。 呢 個 係 長 遠 工 作 。

56

問：

對中大模式與 參 考 校 長 任 命 模 式 兩 者 有 何 評 價 ？

答：

參 考 校 長 模 式 係 值 得 考 慮 嘅， 校 委 會 主 席 實 質 權 力 相 當 巨 大 ， 如 校 長 遴 選 委 員 會 亦 都 係 校 委 會 主 席 Chair（ 主 持 ）。 所 以 主 席 人 選 嘅 決 定 應 參 考 校 長 模 式， 當 然 唔 需 要 全 球 search （ 物 色 ）； 中 大 模 式 唔 見 得 能 加 強 認 受 性， 所 以 我 哋 應 諗 一 個模式，凝聚大 家 嘅 關 注 。（ 問：校 長 模 式 其 實 無 法 類 比 ？ ） 咁 當 然 有 類 比 之 處， 如 佢 哋 都 係 成 個 大 學 嘅 領 袖。 其 實 過 去 校 委 會 主 席 並 無 咁 大 權 力， 應 該 話， 佢 有， 但 無 用 咁 多、 咁 大 權 力。 我 覺 得 校 委 會 主 席 權 力 愈 大， 產 生 方 法 亦 都 應⋯ ⋯ 校 長 負 責 教 學 、 研 究 等 事 務 ， 主 持 Senate（ 教 務 委 員 會 ） ； 校 委 會 反 而 唔 應 該 搞 咁 多 Senate（ 教 務 委 員 會 ） 事 務 ， 應 搞 籌 款、 物 業 管 理 等 行 政 嘢 。 過 去 其 實 Court（ 校 董 會 ） 係 實 質行政機構，oversee（ 檢 視 ）一 切 ，但 相 對 呢 係 好 尊 重 大 學 。 如果係一個合理嘅管理模式呢，我哋係唔應該由一個由校外 人 士 佔 多 嘅 委 員 會， 覺 得 自 己 係 最 高 管 治 架 構（ 按： 對 校 務 委員會之提述 經《 2010 年 香 港 大 學（ 修 訂 ）條 例 》修 訂 為「 最 高 管 治 團 體 」） ， 然 之 後 樣 樣 去 管 。 而 家 Council（ 校 務 委 員 會 ） 係 有 咁 嘅 傾 向， 自 視 最 高 管 治 架 構。 我 覺 得 要 回 歸 學 術 自 主，Council（ 校 務 委 員 會 ） 係 應 有 自 我 約 束 ， 而 主 席 亦 都 應 自 我 約 束， 唔 應 該 係 強 勢。 好 似 李 國 章 咁， 我 覺 得 係 同 佢 嘅 遴 選 方 法 有 關。 既 然 主 席 咁 重 要， 佢 係 咪 需 要 更 大 嘅 認 受 性呢？所以由 不 同 持 份 者 組 成 嘅 模 式 係 值 得 考 慮 嘅 。

問：

你預期有幾多校董會傾向改革派？現時畢業生議會之內部情 況對修改《規 程 》 而 言 樂 觀 嗎 ？

答：

校 董 會 係 象 徵 式 為 主， 因 開 會 時 間 唔 長， 又 未 必 人 人 會 出 席。 我 估 計 如 校 委 會 同 意（ 修 改《 規 程 》） 嘅 話， 校 董 會 同 意 嘅 機 會 亦 都 好 大。 校 委 會 唔 同 意 的 話， 亦 唔 會 交 上 去 校 董 會 作 決 定， 所 以 其 實 校 董 會 並 唔 係 我 哋 考 慮 重 點。 畢 業 生 議 會 中 ， 改 革 派 喺 Standing Committee（ 常 設 委 員 會 ） 所 佔 人 數 係 多， 所 以 我 預 計 校 友 關 注 組 同 朋 友 呢， 喺 呢 啲 改 革 嘅 投 票 中 都 會 支 持 嘅 。 但 始 終 喺 校 董 會 中 我 哋 都 係 少 數， 所 以 最 重 要 嘅 係 如 果 獲 校 委 會 支 持， 喺 校 董 會 嘅 通 過 機 會 就 會 大。 目 前 校 友 影 響 力 係 好 細， 連 校 委 會 都 係 無 校 友 代 表， 只 可 有 機 會 由 校 董 會 委 任 成 為 校 董 代 表， 或 由 政 府 委 任（ 按： 校 外 委 員 席 位 ）， 當 然 有 考 慮 性 啦。 無 論 點 都 好， 校 友 喺 港 大 決 策 當中影響力係 好 少 。

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問：

今 次 校 委 會 主 席 首 次 以「 校 委 會 主 席 人 選 顧 問 委 員 會 」（ 下 稱「 顧 問 委 員 會 」） 形 式 產 生 ， 你 如 何 評 價 其 組 成、 操 作 及 問責制？如要 改 變 ， 從 何 入 手 ？

答：

顧 問 委 員 會 組 成 人 數 相 當 細， 並 唔 係 有 廣 泛 代 表 性， 來 源 亦 單 一， 容 易 變 成 單 一 化 嘅 組 織。 整 個 操 作 大 家 都 唔 知 道、 唔 了 解。 既 然 無 代 表 性， 亦 無 辦 法 令 大 家 滿 意 到、 唔 係 一 個 開 放 嘅 組 織。 所 以 產 生 出 來 嘅 人 選， 唔 會 因 為 委 員 會 而 提 高 個 認受性。

問：

如 學 校 不 修 改《 規 程 》， 改 為 推 出「 更 自 主、 更 多 持 份 者 」 的顧問委員會 ， 你 會 否 接 受 ？ 為 甚 麼 ？

答：

要 睇 點 改 啦， 我 唔 會 肯 定 大 學 會 一 次 過 從 善 如 流， 但 今 次 我 哋 的 確 係 將（ 六 人 小 組 ） 當 時 話 費 事 失 事 嘅 理 由 推 翻 咗。 佢 唔講道理當然 無 辦 法 ，我 哋 有 moral high ground（ 道 德 高 地 ）， 但亦要明白可 能 需 要 一 次 又 一 次 嘅 努 力 。

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