The Catholic Diocese of Hong Kong also known as The Bishop of the Roman Catholic Church in Hong Kong Incorporation v. Secretary for Justice
Read the full judgment text of HCAL 157/2005 on BabelCite. This High Court CFI judgment was delivered on 23 November 2006.
1. The Catholic Church is an important institution in our society. According to the evidence, Hong Kong has a Catholic population of about 347,000, including Filipino workers. An average of 4,000 persons are baptised as Catholics every year.
Cited by 12 cases · Cites 7 cases
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HCAL 157/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 157 OF 2005 ____________ BETWEEN
______________ Before: Hon A Cheung J in Court Dates of Hearing: 11-13 October 2006 Date of Judgment: 23 November 2006 _______________ J U D G M E N T _______________ Introduction 1.The Catholic Church is an important institution in our society. According to the evidence, Hong Kong has a Catholic population of about 347,000, including Filipino workers. An average of 4,000 persons are baptised as Catholics every year. 2.The Catholic Church has been present in Hong Kong since 1841. Apart from the dissemination of the Roman Catholic faith, the Catholic Church is also heavily involved in the provision of a wide range of educational, medical and social services in Hong Kong. 3.Focusing on the provision of education, which this case is all about, the Catholic Church has been participating in the provision of education in Hong Kong as a school sponsoring body (SSB or SB) since around the 1920s. 4.Leaving aside direct subsidiary scheme schools and private schools and concentrating on aided schools only, which are the focus of this litigation, the Catholic Church, through the Catholic Diocese of Hong Kong as the school sponsoring body, has been operating a total of 90 aided schools consisting of 63 aided primary schools and 27 aided secondary schools[1]. These schools are generally referred to as Diocesan schools. 5.The Catholic Diocese of Hong Kong, also known as the Bishop of the Roman Catholic Church in Hong Kong Incorporation, is a corporation sole incorporated under the Bishop of the Roman Catholic Church in Hong Kong Incorporation Ordinance (Cap 1003), a legal entity capable of suing and being sued. Indeed, it is the applicant in these judicial review proceedings. 6.Apart from Diocesan schools operated by the applicant, there are other Catholic schools run by other Catholic sponsoring bodies, namely Caritas Hong Kong and 25 Religious Congregations. They, along with the applicant, are members of the Catholic Board of Education, which is a body established by the applicant to develop educational policies and provide management support to all Catholic schools in Hong Kong. The main difference between the applicant and the other Catholic sponsoring bodies lies in the nature of their relationship with the Bishop. While the applicant as a sponsoring body is “directly linked” to the Bishop in the sense that it is wholly under and accountable to the Bishop, the other Catholic sponsoring bodies are only “pastorally and canonically linked” to the Bishop. However, the Bishop is the spiritual head of all Catholics in Hong Kong. Therefore, all of the Catholic sponsoring bodies are under his direction and operate in unison with him. 7.According to the evidence, under the Bishop’s leadership, the applicant, Caritas Hong Kong and the 25 Religious Congregations act as the respective sponsoring bodies for a total of 221 Catholic primary and secondary schools in Hong Kong. 8.The importance and contribution by the Catholic Church to the society in the field of education are self-evident. 9.To put, however, all these introductory observations in context, it must be pointed out at the same time that in the 2005/2006 school year, there are 710 primary schools in Hong Kong, of which 560 (ie 78.9%) are aided primary schools. There are 524 secondary schools in Hong Kong, of which 375 (ie 71.6%) are aided schools. According to the evidence filed by the Government, at present, there are 303 school sponsoring bodies in Hong Kong which include various religious organizations, educational bodies and organizations with other background. These SSB differ in size and the number of schools sponsored by them. Some run only one but others run more than 100 aided primary or secondary schools. According to the submission made on behalf of the Government, schools run by religious organizations account for over 50% of all the schools in Hong Kong. 10.Put simply, an aided school means any school that receives subsidies from the Government in accordance with the code of aid for primary schools, the code of aid for secondary schools or the code of aid for special schools. An aided school is managed by a school management committee and is sponsored by a school sponsoring body. To be eligible for the allocation of Government-built premises for the operation of an aided school, the SSB has to be a body corporate registered under the Companies Ordinance (Cap 32) or other ordinance so that it can receive the land and buildings for the school. Besides, annual subsidies are granted in respect of the school’s operation. According to Government figures, the annual subvention in 2004 for all aided schools amounted to $24 billion. The annual provision for a standard 30-class secondary school is about $38 million, and the corresponding provision for a primary school is about $22 million. Education (Amendment) Ordinance 2004 & school-based management 11.This litigation between (essentially) the Catholic Church and the Government arose out of the Education (Amendment) Ordinance 2004 (Ord No 27 of 2004), which was passed by the Legislature into law on 22 July 2004 and came into operation on 1 January 2005. The purpose of the enactment of the amendment Ordinance was to compulsorily enforce the policy of “school-based management” (SBM) in all aided schools in Hong Kong. 12.Amongst other things, the amendments require the SSB of an aided school to draft and submit for the approval of the Permanent Secretary for Education and Manpower a constitution of the school management committee (SMC) and the compulsory incorporation of the school management committee. They also require the mandatory inclusion of a number of people/representatives as managers in the incorporated management committee (IMC), to sit alongside managers appointed by the SSB, the maximum number of which cannot exceed 60% of the total membership of the committee. Furthermore, the amendments introduced provisions to define the scope of the SSB’s functions in the running of an aided school. Amongst other things, the so-called “guarantee of priority” that a SSB used to enjoy in five defined areas since 1993 under the Education Ordinance was removed by the amendment provisions. Lastly for the purpose of the litigation, changes were made regarding the supervisor, the principal and the selection of teachers. 13.The Catholic Church had not been happy with the amendments even before they were passed. Amongst other things, it took the view that the proposed amendments infringed the Basic Law. It made representations to the Legislature. That notwithstanding, the Legislature, as mentioned, passed the amendment Ordinance into law in 2004, amid protests by the Catholic Church and so, it has been reported, reservations by some other religious organizations having a stake in running aided schools in Hong Kong. Application for judicial review 14.On 6 December 2005, the applicant applied for leave to commence judicial review proceedings to challenge the relevant provisions in the Education Ordinance as amended. Leave was granted, and thus the present judicial proceedings. Though no doubt acting on the direction of the Church, the applicant only represents itself as the SSB of the aided schools affected by the Ordinance as amended. Caritas Hong Kong and the 25 Religious Congregations have not joined in the litigation in respect of the aided schools run by them. 15.Specifically, the applicant challenges the constitutionality of sections 40BK(2) and (3)(a) and 40BU(2) and (3) in Part IIIB of the Education Ordinance as amended. Part IIIB is an entirely new part added by the 2004 amendments. Section 40BK(2) and (3)(a) of the Ordinance as amended require the sponsoring body of an aided school in operation before 1 January 2005 to submit to the Permanent Secretary a draft constitution of the proposed incorporated management committee by a deadline, namely 1 July 2009. Section 40BU(2) and (3) require the sponsoring body of an aided school the scheduled opening date of which falls on or after 1 January 2005 to submit to the Permanent Secretary, inter alia, a draft constitution of the proposed incorporated management committee not later than 6 months before the scheduled opening date, or by such later date as the Permanent Secretary may approve in writing. 16.The applicant argues that the two sections are inconsistent with articles 136(1), 137(1) and 141(3) of the Basic Law and are unconstitutional. It seeks a declaration to that effect. 17.The sanctions for failure to comply with section 40BK or section 40BU are found in sections 40BS and 40BZ respectively. Amongst other things, the Permanent Secretary may, in the former case, appoint one or more persons to be the managers of the school and cancel the registration of any manager of the school: section 40BS(1)(c) and (d). In the latter case, the Permanent Secretary may terminate the subsidization agreement between the Government and the sponsoring body in relation to the school: section 40BZ(1). Given the constitutionality challenges against the underlying provisions in sections 40BK and 40BU, the applicant does not find it necessary to ask the Court to strike down the provisions in sections 40BS and 40BZ. Relevant articles in the Basic Law 18.The articles in the Basic Law relied on by the applicant in support of the present application for judicial review are found in Chapter VI of the Basic Law, entitled “Education, Science, Culture, Sports, Religion, Labour and Social Services”. 19.Articles 136 and 137 are the first two articles in Chapter VI. The applicant says that the legislation infringes both articles 136(1) and 137(1). It is therefore necessary to set out the two articles in full.
20.Plainly, the two articles deal with education in the Hong Kong SAR. 21.Article 138 moves on to deal with western and traditional Chinese medicine, as well as medical and health services. It requires the Government, on its own, to formulate policies to develop western and traditional Chinese medicine and to improve medical and health services. Like article 136(2), article 138 goes on to say that community organizations and individuals may provide various medical and health services in accordance with law. 22.Article 139 deals with science and technology. Article 139(1) requires the Government, on its own, to, inter alia, formulate policies on science and technology. 23.The next article, article 140, deals with culture. It requires the Government, on its own, to, inter alia, formulate policies on culture. 24.The next article is the all-important article 141. It deals with the freedom of religious belief and the activities and affairs of religious organizations in the Hong Kong SAR. The applicant bases its challenges on, inter alia, article 141(3). The article reads in full as follows:
25.To complete the survey of the articles included in Chapter VI, article 142 deals with the various professions practising in Hong Kong. Article 142(1) requires the Government, on the basis of maintaining the previous systems concerning the professions, to formulate provisions on its own for assessing the qualifications for practice in the various professions. 26.Article 143 concerns sports. It requires the Government, on its own, to formulate policies on sports. Non-governmental sports organizations may continue to exist and develop in accordance with law. 27.Articles 144 and 145, dealing with subventions for non-governmental organizations and the social welfare system, are well worth setting out in full here:
28.Article 146 gives voluntary organizations providing social services the right to decide, on their own, their forms of service, provided that the law is not contravened. 29.Article 147 concerns labour. The Government shall, on its own, formulate laws and policies relating to labour. 30.Article 148 concerns the relationships between non-governmental organizations in fields such as education, science, technology, culture, art, sports, the professions, medicine and health, labour, social welfare and social work as well as religious organizations in the Hong Kong SAR and their counterparts on the Mainland. 31.Lastly, article 149 allows these non-governmental organizations, including religious organizations, in the Hong Kong SAR to maintain and develop relations with their counterparts in foreign countries and regions and with relevant international organizations. 32.In addition to these articles found in Chapter VI, since this litigation concerns the applicant’s right as a religious organization to run Catholic schools, it is also useful to mention, as part of the background, article 32 of the Basic Law which sets out several of the fundamental rights of the residents of Hong Kong. The article provides that Hong Kong residents shall have freedom of conscience. They shall also have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public. Article 13 of ICESCR 33.During argument, Mr Philip Dykes SC, Mr Hectar Pun and Ms Esther Lin with him, appearing for the applicant, also referred to article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 13 reads:
34.Article 39 of the Basic Law says that the provisions of, inter alia, ICESCR “as applied to Hong Kong” shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. 35.The article further provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Any such restrictions shall not contravene the provisions of, inter alia, ICESCR. Gist of the applicant’s case 36.The applicant’s case in respect of the various articles is essentially as follows. 37.In relation to article 136(1), the applicant says that under that article, any formulation of policies on the development and improvement of education must be done “on the basis of the previous educational system”. It alleges that the 2004 amendments, the purpose of which is to implement compulsorily the policy of school-based management in all aided schools in Hong Kong, represent a “brand new regime” which pays insufficient or no regard to the previous educational system. It is a new policy on the development and improvement of education that was not formulated on the basis of the previous educational system, and thus a violation of article 136(1). 38.In relation to article 137(1), which the applicant also relies on, the applicant alleges that the mandatory requirements comprising the compulsory school-based management policy infringe on the applicant’s right, as an educational institution, to determine the governance structure of its schools. To that extent, the mandatory requirements contravene the applicant’s right to retain its autonomy as guaranteed under article 137(1) of the Basic Law. 39.As regards article 141(3), the applicant says that that particular article specifically provides that the applicant as a religious organization has the constitutional right to continue running schools according to its “previous practice”. The compulsory requirements of the school-based management policy imposed by the legislation under challenge would force the applicant, a religious organization, to run its schools under a new practice. This constitutes, it is argued, an encroachment on the applicant’s constitutional right under article 141(3) to run its schools according to its previous practice. 40.As regards the relationship between article 136(1) (the Government’s obligation to formulate policies on the development and improvement of education, including policies regarding the educational system and its administration) and article 141(3) (religious organizations’ right to continue running schools according to their previous practice), the applicant argues in the alternatives: Either that the applicant is exempt from the provisions of article 136(1), or that the power of the Government to develop new educational policies is subject to those policies being compatible with “previous practice” which, in the present context, means letting the applicant decide whether and to what extent it wants to go along with school-based management. 41.Finally, in relation to article 13 of ICESCR, Mr Dykes argued on behalf of the applicant that article 13(3) of ICESCR requires States to take a “hands-off” approach when it comes to regulating schools which are not in the public sector. So long as minimum educational standards are met, the religious and moral contents of education in a particular school that is not in the public sector is something for parents and not for education bureaucrat. Imposing State values on a school which are not directly related to educational values is unconstitutional. Counsel argued that access to education under article 13 can be made other than through State schools, and the State must respect the choice of parents and diversity of schools. The distinctive character of a religious education is a matter of great importance to many parents. Principles of interpretation of the Basic Law 42.The principles of interpretation of the Basic Law are not in dispute. 43.As Mr Fok SC, Mr Daniel Wan with him, appearing for the Government, submitted, the Basic Law uses ample and general language and is a living instrument intended to meet changing needs and circumstances. A purposive approach to interpretation is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and practices declared in, and to be ascertained from, the constitution and relevant extrinsic material. In ascertaining the true meaning of the Basic Law, the court must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context. The purpose of the Basic Law is to establish the Hong Kong SAR under the principle of “one country, two systems” with a high degree of autonomy in accordance with the policies set out and elaborated in the Joint Declaration. The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or other relevant extrinsic materials including the Joint Declaration. As to the language of its text, the court must avoid a literal, technical, narrow or rigid approach. The court must consider the context of a particular provision, which is to be found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration and assistance may be gained from any traditions and usages that may have given meaning to the language used. Constitutional interpretation is essentially question-specific. Ng Kar Ling v Director of Immigration (1999) 2 HKCFAR 4, 28-29. 44.Mr Fok, in his detailed submission, also mentioned the presumption of constitutionality of legislative act (see Albert HY Chen, The Interpretation of the Basic Law – Common Law and Mainland Chinese Perspectives (2000) 30 HKLJ 380, 428 to 431) and the doctrine of the margin of appreciation (see Leung TC William Roy v Secretary for Justice, CACV 317/2005, 20 September 2006, paras 52-53). These are more controversial subjects, and indeed Mr Dykes took issue with Mr Fok in relation to them. Insofar as it may be necessary to refer to them in the construction of the relevant articles, I will deal with them in due course. 45.I will now turn to the various arguments relating to the relevant articles and their proper construction. Article 136(1) of the Basic Law
46.Article 136 is the first article in Chapter VI of the Basic Law. It is one of the two articles dealing specifically with education. Article 136(1), which is in issue, imposes an obligation on the Government of the Hong Kong SAR to develop policies on the development and improvement of education (“shall, on its own, formulate policies …”). I agree with Mr Fok that the duty thus imposed on the Government carries with it a right on its part to so formulate policies. 47.In my view, on the proper construction of article 136(1), there are three relevant conditions for the formulation of such educational policies:
48.The only issue here is whether the SBM policy that the amendments put into effect was formulated “on the basis of the previous educational system”.
49.I agree with Mr Fok that the “previous” educational system relates to the system in place immediately before 1 July 1997, being the date on which the Basic Law came into effect. This is consistent with the interpretation of the word “before” in article 100 of the Basic Law: Secretary for Justice v Lau Kwok Fai (2005) 8 HKCFAR 304, 321, para 36. This is also consistent with the relevant date for the purposes of article 144 of the Basic Law: Cheung Man Wai Florence v Director of Social Welfare (1998-99) 8 HKPLR 241, 249F to 250E. 50.The relevant date in the present context is not to be confused with the relevant dates of extrinsic materials that the court may consider in the task of interpretation of the Basic Law. In relation to that task, as mentioned, the court may look at extrinsic materials which throw light on the context or practice of the Basic Law or its particular provisions as an aid to the interpretation of the Basic Law. Extrinsic materials which can be considered include the Joint Declaration and the Explanations on “The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft)” and its Related Documents given at the National People’s Congress on 28 March 1990 shortly before its adoption on 4 April 1990. The state of domestic legislation at that time and the time of the Joint Declaration will often also serve as an aid to the interpretation of the Basic Law. Because the context and purpose of the Basic Law were established at the time of its enactment in 1990, the extrinsic materials relevant to its interpretation are, generally speaking, pre-enactment materials, that is materials brought into existence prior to or contemporaneous with the enactment of the Basic Law, although it only came into effect on 1 July 1997. Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 224D-G/H. 51.As I say, all this is not to be confused with the proper date for determining the “previous” educational system, which could only mean the educational system that was in place immediately before 1 July 1997.
52.Unlike the Form 86A, the written and oral submissions of Mr Dykes did not, I think it is fair to say, place as much emphasis on the present argument under article 136(1) as they did on his next argument based on article 141(3), which I will deal with in due course. I think that approach was understandable, given the evidence that had been filed on behalf of the Government in response to the matters asserted in the Form 86A. The evidence filed explained in detail the genesis of the 2004 amendments. 53.In the Form 86A, the applicant alleged that the amendments sought to set up a “brand new regime” which pays insufficient or no regard to the previous educational system. The “new system”, which will be adopted by a school once the incorporated management committee is set up, is not designed “on the basis of the previous educational system”. It “departs fundamentally” from the previous educational system. 54.Specifically, the applicant alleged in the Form 86A that in September 1997, the Education Commission published its Report No 7, entitled “Quality School Education”, in which it put forward various recommendations relating to the provision of quality school education. It especially emphasized the practice of school-based management which the Education Commission believed would help achieve quality assurance within schools. Elements of school-based management included the development of formal procedures for setting school goals and evaluating progress towards those goals and the participation of teachers, parents, alumni in school management and development. One of the recommendations put forward in the 1997 Report, the Form 86A pointed out, was the setting up of a committee known as the school executive committee (SEC) which would operate under and be answerable to the school management committee. The composition of the SEC would include parents, teachers and alumni as members. However, as the Advisory Committee on School-based Management under the Board of Education set up to draw up a school-based management framework for aided schools described in its “School-based Management Consultation Document” dated February 2000, the SEC was an “advisory body with no substantive decision-making powers”. 55.The applicant also said that in the 1997 Report, it specified that individual schools should be allowed to decide on the school management structures that would best suit their needs and that the composition of the SEC should be decided by the schools themselves, in accordance with the open and school-based management concept. In other words, the adoption of the new management structure ought to be optional. 56.However, in February 2000, the Advisory Committee on School-based Management came up with proposals that, the Form 86A alleged, departed substantially from the recommendations contained in the 1997 Report. In particular, the optional establishment of SEC did not form part of the proposals. Instead, the Advisory Committee proposed that all schools should establish brand new management committees with a membership that compulsorily included various categories of managers, including teacher managers, parent managers, alumni managers, independent managers and sponsoring body managers. After consultation, the Government accepted the proposals in full, and they eventually became the Education (Amendment) Bill 2002. Subject to a number of amendments made during the legislative process, the Bill eventually became the 2004 amendment Ordinance. 57.The applicant therefore alleged in the Form 86A, and counsel maintained the same argument at the hearing, that the 2004 amendments violated article 136(1) in that the compulsory SBM policy embodied in the amendments was not based on the “previous educational system”. – Government’s evidence on origin and evolvement of policy – 58.However, it is plain from the evidence filed on behalf of the Government that what has been described in the Form 86A only represents part of the whole picture. In the affirmation of Yau Wai Ching Michelle filed on behalf of the Government, she set out in great detail the relevant factual background. She gave a general overview of the education system in Hong Kong and the various entities involved in that system. She explained the manner in which policies on the development and improvement of education are formulated, executed and reviewed. Her affirmation set out the basic principles and key elements of the policy of school-based management. In paragraph 52 of her affirmation, she explained the basic premise of school-based management:
59.In paragraph 54, she described the key elements of SBM as including the following, namely defining responsibilities, widening participation, developing professionalism, setting goals, evaluating effectiveness and developing characteristics. 60.In section 5 of her affirmation, Ms Yau described the history of the development of school-based management in Hong Kong. She explained that it all started in early 1989 when a study of the roles and relationships of those involved in the delivery of education in schools was conducted in the context of the Government’s public sector reform programme. The report found that the Government’s efforts in school education were less effective than they might be as a result of inadequate management structure and processes, poorly defined roles and responsibilities, the absence or inadequacy of performance measures, an emphasis on detailed controls over the aided sector, rather than frameworks of responsibilities and accountability and an emphasis on cost control at the margins, rather than cost effectiveness and value for money. The study recommended changes to clarify roles, re-allocate responsibilities and strengthen management throughout the system. 61.In March 1991, the then Education and Manpower Branch and the then Education Department published a booklet, entitled The School Management Initiative: Setting the framework for quality in Hong Kong Schools. The booklet pointed out that having entrusted 80% of the provision of school places to non-government bodies, the Government had not developed a framework of responsibility and accountability which would ensure that these bodies could perform effectively within a minimum of detailed controls. There were no performance measures and it was difficult to assess the cost effectiveness of any particular school. The booklet drew on the experiences of other countries and proposed a framework for an effective school system to suit local circumstances. Amongst other things, the management model proposed was based on a school management approach which integrated goal-setting, policy-making, planning, budgeting, implementing and evaluating in a systematic manner and ensured the appropriate involvement of staff, students and the community, with a clear role for the governing body (ie the school management committee). 62.The booklet made a number of recommendations. Recommendation (5) proposed that every SMC should be required, under the then Education Regulation, reg 75, to prepare a constitution setting out the aims and objectives of the school and the procedures and practices by which it would be managed. Recommendation (6) suggested that the role and the legal/contractual position of the sponsoring body in relation to school management should be clarified. Recommendation (7) proposed that the role and duties of the supervisor in relation to the SMC and principal should be reviewed. Recommendation (10) suggested that school management frameworks should allow for participation in decision-making, according to formal procedures, by all concerned parties including all teaching staff, the principal, the SSB and (to an appropriate degree) parents and students. 63.The recommendations in the booklet were tried out as a pilot scheme in public sector schools including aided schools as from September 1991 on a voluntary basis. The pilot school management initiative scheme (SMI) comprised all together 7 phases, each covering 2 consecutive school years. Phase 1 of the SMI comprised the school years 1991/1992 and 1992/1993. Phases 2 and 3 of the SMI, starting in 1992/1993 and 1993/1994 respectively, covered all together three (overlapping) school years from 1992/1993 to 1994/1995. 64.In the meantime, the Education Commission issued its Report No 5 in June 1992, in which the Commission affirmed its support for the principles of SMI to improve the quality of school education. The Report also pointed out that the Commission was aware of different views regarding the membership of SMCs – some school authorities were unsure how to enable teachers, parents and alumni members to contribute fully to the management of the school. The Commission noted that this issue was being discussed by sponsoring bodies and the then Education Department and looked forward to progress. 65.In 1993, following one of the recommendations of the SMI scheme, the Education (Amendment) Bill 1993 was introduced into the Legislative Council to rectify an omission in the law that once a school was registered, the school sponsoring body had no power under the law to control the management committee or operation of the school. It was also introduced to foster greater accountability on the part of the school sponsoring body for the quality of education provided in its school, and in particular to help facilitate the implementation of the SMI. The Bill gave SSBs the power to make recommendations to the then Director of Education for the appointment and dismissal of managers or supervisors in their schools. 66.The Bill resulted in the addition of a new section 72A to the Education Ordinance with effect from 1 January 1994. Under the new section, the then Director of Education would take into account the views of the school sponsoring body, in addition to taking into account the views of the management committee, concerning various matters, namely (i) the refusal to register an applicant as a manager of the school, (ii) the cancellation of the registration of a manager, (iii) the withdrawal of approval of the supervisor, (iv) the approval of subsequent supervisors and (v) the approval of the acting supervisor. Under section 72A, a SSB could express its views on those five matters, and where the management committee had expressed its views on the same also, the views of the former would prevail in case of conflict. This is the so-called “guarantee of priority” that the applicant says the 2004 amendments have wrongfully removed. 67.However, in the present context, it can be seen that the so-called guarantee of priority was quite clearly introduced to the legislative framework to facilitate the implementation of the school management initiative, which, the Government says, eventually evolved into the 2004 amendments. 68.Phase 4 of the SMI comprised school years 1994/1995 and 1995/1996. Supervisors and heads of ordinary aided primary and secondary schools were invited to join Phase 4. Sample constitutions for a one-tier and two-tier arrangement were provided. The two-tier arrangement catered for SSBs which sponsored several schools under a central SMC and which wished to retain their central SMC with an advisory council for each school to ensure matters were best decided at the school level. Both types of SMC structures provided for greater participation by teacher, parent and alumni representatives in school decisions and management. 69.Phase 5, comprising the 1995/1996 and 1996/1997 school years, contained formal requirements similar to those in the previous phases. The annual invitation to join was extended to all aided schools. 70.In the meantime, an in-house Task Group on Review of SMI Implementation formed in 1995 recommended in its report issued in late 1995 a full implementation of the SMI management framework within a period of 5 years from 1996. The time limit was set based on the evaluation of phase 3 of the SMI, in response to aided schools’ “wait-and-see” attitude and to accommodate individual schools’ own context and culture. It was to ensure that all new aided schools would implement the scheme as from their first year of operation and to encourage all existing aided schools which had not yet joined the scheme to embark on the implementation of the SMI as soon as possible with 3 preparatory years and 2 implementation years. 71.The Report also recommended that schools could opt for the one-tier or two-tier SMC constitution involving full or varying levels of participation of the principals, teachers, and parent and alumni representatives in the decision-making process relating to school administrative matters. The Task Group Report also explained that a full scale one-tier SMC involving the full participation of school managers, the principal, teaching staff and representatives of parents and alumni in school decision-making was “ideal” for a school participating in the SMI. However, as some major SSBs had expressed the view that the arrangement might not be applicable to their schools for historical and contextual reasons, the Task Group suggested in its Report that, given the circumstances, schools might consider adopting an alternative form of shared decision-making on school matters by instituting an advisory council consisting of the school managers, the principal, teachers and parent and alumni representatives. 72.In September 1996, a SMI Handbook was published. It was based on the preceding 5-year experience of implementation of the SMI scheme. It described the background and aims of the SMI, provided a useful guide on the support available for schools pursuing the SMI and key activities for SMI schools, and contained brief notes and flow diagrams to illustrate work procedures to help school personnel to discharge their duties more readily and effectively. 73.Phase 6 of the SMI comprised the 1996/1997 and 1997/1998 school years. The formal requirements were the same as those for SMI schools in phase 5. 74.In the meantime, the Education Commission set up a Task Group on School Quality and School Funding in April 1996. The Commission found that there was a general lack of a quality culture in the existing school system. Members of the school community had also expressed their concern that the education system did not provide sufficient incentives for schools to take the initiative or to accept the responsibility for the achievement of quality education. The Commission therefore set out a number of objectives as the objectives of its planned Report No 7 and suggested various measures to build a quality culture in schools. 75.In June 1996, the Commission also published a pamphlet entitled Quality School Education: Ways to improve performance. It conducted two rounds of consultation to collect views. Some of the views received were to the effect that although ideally there should be one SMC for each school, it was difficult for SSBs which ran a large number of schools to be represented on each SMC. 76.In November 1996, the Education Commission published a Consultation Document on its intended Report No 7 for the second round of consultation. The Commission affirmed that after several years of implementation of the SMI, the experience from SMI schools suggested that this type of management was helpful in achieving school goals and in formulating long-term plans to meet student needs. The Education Commission therefore recommended that all schools should by the year 2000 practise SBM in the spirit of the SMI so that they could develop quality education according to the needs of their students. 77.The Consultation Document reflected the strong views of a number of SSBs that had been received in the first round of consultation and proposed that schools might consider developing a two-tier management structure: an SMC and a SEC. It also suggested that the SMC might comprise representatives of the school sponsoring body, the chairman of the SEC, teachers, parents, alumni and community members. 78.The Education Commission published its Report No 7 entitled Quality School Education in September 1997, shortly after the establishment of the Hong Kong SAR based on the Basic Law on 1 July 1997. It endorsed the spirit of the SMI as a key factor in the enhancement of quality school education and recommended that the internal quality assurance by schools should be achieved through SBM. The Commission also recommended that all schools should have put in place SBM by the year 2000 so that they could develop quality school education with greater flexibility in the use of resources, and according to the needs and characteristics of their students. Amongst other things, a clear element of the SBM was the preparation of written constitutions for the school management committees. Another clear element was the participation of teachers, parents and alumni in school management, development, planning, evaluation and decision-making. 79.The last phase of the SMI, phase 7, covered the 1997/1998 and 1998/1999 school years. The formal requirements for schools pursuing the SMI were the same as before. It was the last exercise in which the Education Department invited schools to join the scheme because the SMI scheme would normally require two years for its implementation and the Government had accepted the recommendation made in the Education Commission’s Report No 7 that all schools should have put SBM in place by the year 2000. 80.According to Ms Yau’s affirmation, as at the school year 1997/1998, 365 aided schools had joined the SMI, representing about 30% of public sector schools at that time. Among them, 59 SMI schools were under the sponsorship of the applicant. Some of the SMCs had teacher representatives and some did not. Only a minority of them had parent and alumni representatives. 81.Pursuant to the recommendation by the Education Commission, the then Education Department established an Advisory Committee on School-based Management in December 1998 to review the role and operation of the SMCs. The sub-committee of the Advisory Committee adopted a review of existing modes of school governance in Hong Kong and consolidated views on the recommended mode of school governance under SBM. The Advisory Committee then made a number of recommendations including the one that, with the devolution of more responsibilities on schools, greater accountability should be put in place with a coherent management framework involving various key stakeholders. To enable collective responsibilities and accountability and to avoid incurring personal liability in the performance of school managers’ duties, the Advisory Committee recommended that the SMC should be registered as a legal entity, with all key stakeholders participating meaningfully at the decision-making level. The Advisory Committee’s recommendations on the school governance framework provided that a SMC should include managers nominated by the SSB who might constitute over 50% of the total membership, the principal, two teacher managers, two parent managers, optional alumni manager(s) and optional community member(s) or professional(s). It set out the responsibility of the SSB as well as that of the SMC. 82.On 21 December 1999, the Legislative Council Panel on Education was briefed on the recommendations of the Advisory Committee on the school governance framework. 83.In February 2000, the Advisory Committee issued a consultation document entitled Transforming Schools into Dynamic and Accountable Professional Learning Communities and conducted a 2-month public consultation. It recommended that each school should have an SMC, and the SMC would have the following members: up to 60% of the entire membership of the SMC might be nominated by the SSB, the principal, two or more teacher managers, two or more parent managers, one or more alumni managers, and one or more independent managers. It also recommended that the SMC would be incorporated under the Education Ordinance. The Committee also recommended a transition period of three years after the enactment of new legislation. 84.Five briefing sessions were held to solicit the views of SSBs and other key stakeholders on the proposed framework. 85.On 20 November 2000, the LegCo Panel on Education was briefed on the outcome of the public consultation and the Advisory Committee’s recommendations. According to Ms Yau’s affirmation (paras 99 and 100):
86.In January 2001, the Advisory Committee submitted its final recommendations which were accepted by the Director of Education on 2 March 2001. In short, the recommendations allowed the SSB to appoint up to 60% of the members of the SMC, whereas parents and teachers would only have two seats each and between them just one vote. 87.Despite the target in the Education Commission’s Report No 7 that by the year 2000, all aided schools should have put SBM in place, according to the evidence, a survey conducted in March 2003 found that, 6 years after the Report was published in 1997, only 16% of schools had set up SMCs with both parent and teacher representatives, all of whom were selected by SSBs, instead of being elected from among peers. 88.Since the voluntary scheme failed to achieve its object, the evidence went on to point out, the Government considered that it had to legislate the SBM requirements to ensure compliance on the part of SSBs and therefore introduced the Education (Amendment) Bill 2002. It was gazetted on 22 November 2002 and a Bills Committee was set up to scrutinize the Bill in February 2003. It held 39 meetings. It met with representatives of 38 organizations including 13 SSBs and 18 parent-teacher federations or PTAs and five individuals. These organizations included the Hong Kong Association of Sponsoring Bodies of Schools, the applicant, the Hong Kong Sheng Kung Hui (the Anglican Church), and the Hong Kong Professional Teachers’ Union. Amongst others, those individuals consulted included Bishop Joseph Zen (as he then was). 89.At the committee stage, various amendments to the Bill were made to address SSBs’ concerns as well as concerns of members of the Bills Committee and that of the public. 90.The Bill was passed by the Legislative Council on 8 July 2004. The Education (Amendment) Ordinance 2004 came into operation on 1 January 2005. The Government considered that, with a proper financial and resources management system with built-in checks and balances, aided schools with incorporated management committee can be entrusted with greater funding flexibility and autonomy under the expanded operating expenses block grant and the teacher relief grant. 91.In short, the Government’s position, based on the evidence adduced, is that the SBM policy embodied in the Education (Amendment) Ordinance 2004 was developed on the basis of the previous educational system. The development of SBM dates back to 1991 when the then Education Department introduced the SMI scheme and it has been improved on incrementally since that time. The Government, it argues, has all along implemented the SBM framework for the improvement of the quality of school education. 92.Specifically, the Government refuted the applicant’s allegation that the Advisory Committee’s proposals departed substantially from the recommendations contained in the Education Commission’s Report No 7. It pointed out that the issue of a one-tier or two-tier SMC was considered by the Task Group on Review of SMI Implementation in 1995. As mentioned, it considered that a full scale one-tier SMI was “ideal”. However, given some SSBs’ reservations about restructuring their SMCs, the Task Group suggested that schools should be allowed to adopt an alternative form of shared decision-making on school matters by instituting an advisory council (AC) consisting of the key stakeholders to serve as links between the advisory council and the SMC. 93.It was noted by the Education Commission in its Report No 7, according to the evidence, that during the consultation, there were mixed views on whether teachers, parents and alumni should participate in the SEC or the SMC. The Commission recommended that to facilitate efficient school management, teachers, parents and alumni should be represented in the SEC to advise on school matters and be answerable to the SMC, and that the Bureau of Education should review the situation in due course. The evidence went on to explain the Advisory Committee’s eventual recommendations (at para 139 of Ms Yau’s affirmation):
94.In my view, the school-based management policy encapsulated in the 2004 amendments was developed on the basis of the previous educational system existing immediately before 1 July 1997. It did not introduce a brand new system as alleged by the applicant. Nor did it depart fundamentally from the previous educational system. Its origin could be traced back to the 1989 Government study conducted in the context of the Government’s public sector reform programme and the resulting 1991 School Management Initiative, a major policy initiative within the public sector reform, which pointed out the main direction for future management of schools in Hong Kong. The SMI went to 7 phases between the 1991/1992 and 1999/2000 school years. There were changes made to the SMI content. They were incremental and gradual changes. The evidence has fully explained those changes and the reasons for the same. 95.It is true that at one stage there were suggestions and debates regarding the one-tier or two-tier system. But the evidence has clearly explained why eventually the present SMC composition was recommended. The evidence has set out why it was thought acceptable to have compulsory involvement of teacher, parent and alumni representatives in the SMCs. Pausing here, it must be remembered that apart from the obvious interests of SSBs in the composition of SMCs, both teachers and parents also have similar though possibly contradictory interests in the same. A balance had to be struck somewhere, and eventually the amendments achieved it at the 60% level (for SSB managers) with mandatory involvement of teacher, parent and alumni representatives. The Court is not concerned with whether it would have been better to retain the two-tier option. Rather, it focuses on whether there has been a sudden and fundamental change in direction of development. 96.The evidence has also explained adequately why, in the course of development and implementation of the SMI policy, the mode of implementation changed from voluntary to compulsory. In particular, there was evidence about the original target, set in 1995 by the Task Group on Review of SMI Implementation for full implementation of the SMI management framework within a time-frame of 5 years from 1996, as well as the subsequent target set by the Education Commission in its Report No 7 to put SMI in place in all schools by 2000, and how those targets failed to be achieved on a voluntary basis. Again I should point out that the Court’s focal point here is whether compulsory implementation was an abrupt departure from previous development or a natural progression of the same. 97.I have condensed the detailed evidence contained in Ms Yau’s lengthy affirmation, which sets out the history and evolvement of the SMI policy and the eventual enactment of the 2004 amendment Ordinance. What I have set out above, I believe, is by itself sufficient to explain why I do not accept that the policy implemented by the 2004 amendments was not based on the previous educational system. 98.As I said, senior counsel was not particularly enthusiastic with this part of the applicant’s case during the hearing. No detailed argument was advanced at the hearing with a view to persuading the Court that the school-based management policy implemented by the 2004 amendments was not formulated on the basis of the previous educational system. 99.For reasons explained above, I reject this part of the applicant’s case. I find on the evidence that there was no violation of article 136(1) on the ground that the SBM policy embodied in the 2004 amendments was not formulated on the basis of the previous educational system. This is so regardless of whether one agrees with the merits of the SBM policy, which is not in issue. Article 141(3) and its relationship with article 136(1) of the Basic Law 100.Having thus dealt with article 136(1) and the alleged violation of the article, I now turn to article 141(3), putting to one side article 137(1) to be dealt with later on in this judgment. I do this because not only does the Government say that the 2004 amendments were made pursuant to article 136(1) and no violation of that article was involved, it also contends that article 136(1) takes precedence over article 141(3) and therefore the amendments are constitutional notwithstanding any alleged departure from the “previous practice” of the applicant in running aided schools. It thus becomes necessary to determine the proper construction of article 141(3) and find out the inter-relationship between article 136(1) and article 141(3). It is fair to say that these questions formed the major area of contention between the parties at the hearing. 101.Article 141(3) says that religious organizations may, according to their “previous practice”, continue to run seminaries and other schools, hospitals and welfare institutions and to provide other social services. 102.As noted above, article 32 of the Basic Law provides for Hong Kong residents’ freedom of religious belief. Broadly speaking, it is concerned with an individual’s freedom of religion. On the other hand, again broadly speaking, article 141 deals with the rights and protection of religious organizations in Hong Kong. Article 141(3), in particular, stipulates that these organizations may, according to their previous practice, continue to run, amongst other things, schools.
103.The applicant’s case is that as a religious organization, it is entitled to run the Diocesan schools in accordance with its “previous practice”. The applicant identifies seven areas of change to its previous practice which, it says, taken together, constitutes a breach of the constitutional guaranteegiven by article 141(3). These 7 areas are the obligatory submission of constitutions and the incorporation of management bodies, the reduction of the applicant’s representation in the management bodies, the diminution in the scope of the applicant’s functions, the loss of the guarantee of priority, the changes concerning the supervisor, the changes concerning the principal and the changes concerning the selection of teachers. 104.In due course, I will go into these seven areas in greater detail. However, it is, I believe, fair to say that the applicant’s chief complaint is, or stems from, the dilution of the applicant’s control of the school management of its schools from an absolute 100% to a maximum 60%. That is, as explained above, the result of the requirements in the amendments that school management committees be incorporated and a school sponsoring body may only appoint up to 60% of the school managers comprising the incorporated management committee. 105.Superficially, given that the amendments do not require the constitution of an aided school, which is to be drafted by the school sponsoring body and approved by the Permanent Secretary, to provide for the transacting of any business or matter otherwise than by a simple majority, a school sponsoring body’s guaranteed right to appoint 60% of the school managers sitting in the incorporated management committee would in effect ensure the school sponsoring body a controlling say in the school management via those it appointed to sit on the committee. Moreover, the amendments provide that it is for the school sponsoring committee to set the vision and mission for the school, to ensure, through the sponsoring body managers, that the mission is carried out and to oversee the performance of the incorporated management committee (section 40AE(1)(b), (e) & (g)). Furthermore, it is the specific responsibility of an incorporated management committee to formulate education policies of the school in accordance with the vision and mission set by the sponsoring body and to ensure that the mission of the school is carried out (section 40AE(2)(a) and (d)). There is, thus it seems, no substantial dilution of the school sponsoring body’s control of an aided school’s management and direction. 106.However, the applicant does not see things that way. It argues that its pre-existing practice and custom in running aided schools, whereby ultimately everything is determined by the applicant or the Catholic Church headed by the Bishop, is an “integral part of the Catholic education” as implemented and carried out by the applicant. This is so not only because it is significant in enabling the applicant in fulfilling its values and mission but also because it represents the “defining characteristics” of the way Catholic schools have been run for years. 107.Paragraphs 136 to 140 of the Form 86A, I believe, capture the essence of the applicant’s grievances in this regard:
108.Mr Dykes expanded on the theme by stressing on the ethos of the applicant’s schools, which counsel said are made up of the values, character, social and mutual responsibility, duty and compassion, together with curriculum and teaching. Counsel submitted that as Diocesan schools, the attitude, philosophy and ethos within the schools would be specifically Catholic. 109.The Catholic Church, counsel reminded the Court, has specific ideas of how Catholic education should be and what it should achieve, for instance, on issues surrounding moral and religious education, emphasis on voluntary or charity works in extra-curricular activities, students’ and teachers’ discipline, and prayers in schools etc. Its mission, orientation and goal, counsel argued, may not be the same and could at times be at odds with those of the Government and other social and cultural organizations. 110.Historically, counsel pointed out, the ethos of Diocesan schools in Hong Kong have been cultivated mainly by the group of highly committed clergies, priests and religious sisters who dedicate their lives in educating others the Catholic values. These individuals have traditionally been fulfilling the roles ranging from supervisors, principals, registered managers to teachers in Diocesan schools. They work in a community in unison with a structure determined principally by the hierarchical constitution of the Roman Catholic Church. “Unity of the Diocese”, a concept which may be foreign to many non-Catholics, is considered “obviously indispensable” for Catholic schools to the extent that it involves cooperation on the part of the clergy, the religious and the laity, counsel pointed out. This is the “framework which guarantees the distinctive Catholic character of the school” and where difficulties and conflicts arise in relation to the Catholic character of a school, “hierarchical authority can and must intervene”. 111.The introduction of “outsiders”, who need not be Catholics, into the school management committee would threaten to destroy, counsel submitted, the unity of the Diocese, which emphasises on the importance of cooperation with one’s religious fellow members especially in creating a school climate that is necessary to foster Catholic values. Mr Dykes argued that in the new system, there is no guarantee that non-sponsoring body managers will appreciate the need to cooperate with sponsoring body managers. Likewise, the changes with the rules and procedures regarding selection of principal and teachers would also threaten the school’s Catholic aptitude, philosophy and ethos. 112.Mr Dykes argued that all this deviates from the “previous practice” of the applicant in running aided schools prior to 1 July 1997, there being no dispute that “previous” practice in article 141(3) refers to the practice in place immediately before 1 July 1997. Counsel argued that these substantial or fundamental changes violate article 141(3). 113.Counsel recognised that the Government relies on article 136(1) to justify the amendments. Mr Dykes argued that there is no “hierarchy of rights” under the Basic Law. Article 136(1) does not therefore “trump” article 141(1). Rather, counsel argued that either the applicant is exempt from the provisions of article 136(1) or that the power of the Government to develop new educational policies is subject to those policies being compatible with “previous practice”. 114.Counsel contended that so long as the applicant’s previous practice is important to the applicant and is not “fundamentally at odds with some constitutional principle” (cf R v Van der Peet [1996] 2 RCS 507), no new educational policy developed by the Government under article 136(1) can alter the applicant’s previous practice in running aided schools in Hong Kong. – Government’s arguments on arts 141(3) & 136(1) – 115.Mr Fok, for the Government, ran essentially two arguments. As mentioned in the summary I gave of Mr Dyke’s arguments above, the Government’s primary position is that article 136(1) indeed takes precedence over article 141(3). Put another way, article 141(3) is subject to educational policies formulated by the Government pursuant to article 136(1), even if a particular policy in question would require or lead to a material or substantial change in a religious organization’s previous practice in running an aided school. 116.Secondly and as a fallback position, Mr Fok argued that article 141(3) is only infringed if a new policy introduced under article 136(1) “materially” changes the previous practice.
117.I will deal with the no-material-change argument in due course. But I would like to focus first on the primary contentions of both parties, which concern directly the inter-relationship between articles 136(1) and 141(3) and the proper construction of article 141(3). 118.A number of matters should be borne in mind. 119.Education, and thus educational policies and educational system, are matters that cannot remain static in any society, particularly in the fast-changing modern world. They must develop and improve with the times. It is no doubt correct, as a general statement, that the main theme of the Basic Law is continuity of the pre-existing social, economic and legal institutions and systems: HKSAR v Ma Kwai Kwan, David [1997] HKLRD 761, 772I-J; Lau Kwok Fai v Secretary for Justice [2004] 3 HKLRD 570, 586E-F/G (CA). However, in the field of education, educational policies and educational system, sufficient flexibility and leeway are required to allow for development and change with a view to their improvement and strengthening; otherwise, the whole educational system would be locked into a “reliquary”: cf Lau Kwok Fai Bernard v Secretary for Justice, HCAL 177/2002, Hartmann J (10 June 2003), para 68; Wang Shu-wen, op cit, at pp 636-637. 120.Thus unlike other provisions in the Basic Law which strive for the preservation and continuity of the previous system, article 136(1) specifically provides for development and change. However, important safeguards are stipulated in article 136(1). As mentioned above, first, the responsibility, and therefore right to, formulate policies on development and improvement of education, including the educational system, rest with the Government of the Hong Kong SAR and no-one else. In other words, for instance, the Central Government on the Mainland cannot formulate policies on education or the educational system for the Hong Kong SAR. 121.Second, the formulated policies must be based on the previous educational system. It therefore guarantees continuity with the previous system existing prior to the establishment of the Hong Kong SAR. It also means that there cannot be a wholesale or even partial transplantation of the Mainland educational system, which is very different from the local system, or indeed any other different foreign educational system, to Hong Kong. Any change must be based on the previous system. In other words, speaking very generally, any change must be incremental and gradual, founded on the previous system either directly or indirectly (through previous change made in accordance with article 136(1)). As I have concluded after examining the relevant materials, the 2004 amendments were indeed such changes, ie changes based on the previous system. 122.Third, the newly formulated policy must be on the “development and improvement” of education. Any changes brought about by the policy must be in respect of the development and improvement of education. This safeguard goes to the content and merits of the changes. Any change that is not a development and improvement of education based on the existing educational system is liable to be struck down. The changes must be changes for the better and not otherwise. Any change that is for the sake of changing only and does not develop and improve on education based on the pre-existing system will fail the test. 123.Thus put in context, a potential conflict between articles 136(1) and 141(3) can only be brought about by a policy that is formulated by the Government on its own and no-one else, one that is based on the previous educational system and one that would – at least according to the perception of the Government and the Legislature if legislation is involved – serve to develop and improve education. This is so as a matter of definition. 124.In other words, the all-important question is whether all that notwithstanding, a religious organization may nonetheless refuse to follow the formulated policy in running an aided school in so far as the policy deviates from its previous practice in running the school.
125.Turning to article 141, it is plainly an article giving protection to religious organizations from restriction or interference by the Government of the Hong Kong SAR, in relation to religious belief, internal affairs and religious activities: article 141(1). It safeguards the property rights and interests of religious organizations: article 141(2). It guarantees the rights of religious organizations to continue running seminaries, schools, hospitals and welfare institutions and to provide other social services, according to their previous practice: article 141(3). It allows religious organizations and believers to maintain and develop their relations with overseas religious organizations and believers: article 141(4); see also article 149. In addition, article 148 deals with the relationship between local religiousorganizations and their counterparts on the Mainland, based on the principles of non-subordination, non-interference and mutual respect. 126.Broadly speaking, the main themes of these articles relating to religious organizations are freedom of religious belief, non-restriction, non-interference and continuity. 127.Amongst the freedom guaranteed and protections given, one finds in article 141(3) the right of religious organizations to continue running schools, according to their previous practice. In the same breath, the sub-article guarantees similar rights to run seminaries, hospitals and welfare institutions and to provide other social services, all according to the particular religious organization’s previous practice. 128.The rights thus guaranteed therefore cover many institutions and services, besides aided primary and secondary schools. They include seminaries and hospitals. They also extend to health clinics, childcare centres, orphanages, homes for the aged, social service or welfare agencies targeting youths, single-parent families, new immigrants and other sections of the society, social service or welfare agencies tackling specific problems such as relief of poverty and drugs addiction, retreat or recreational camp sites and facilities, hospices and cemeteries, to name a few examples that one could easily think of. All these institutions and services, religious organizations have guaranteed constitutional rights to run, “according to their previous practice”.
129.If the applicant’s argument is right, then generally speaking, so long as the previous practice happens to be at variance with the new Government policy that has been lawfully made under the Basic Law (that is to say, under article 136(1) concerning education, article 138 relating to medical and health services or article 145 regarding the social welfare system), the religious organization concerned may choose not to follow it in running the institution or providing the social service in question. That is, logically, the breadth of the applicant’s argument, no matter how one tries to restrict its contention to the area of education and the running of aided primary and secondary schools only. 130.The applicant argued that education is an important subject matter and religious organizations should be left alone in running their own aided schools in accordance with their pre-1997 practice. Therefore it must be exempted from any newly formulated policy under article 136(1). Grant the importance of education and schools, what is the justification for providing the same protection to other institutions or welfare/social services run by religious organizations, such as orphanages, homes for the aged, youth centres or cemeteries? 131.Indeed, in Cheung Man Wai Florence, supra, Stone J faced a similar argument based on article 144. A social work assistant in a voluntary social service organization subvented by the Social Welfare Department challenged the new registration system for social workers introduced after 1997 as being unconstitutional in that it violated article 144 of the Basic Law. Article 144, already extracted above, provides that staff members previously serving in subvented organizations in Hong Kong may remain in their employment in accordance with the previous system. Stone J had no difficulty in rejecting the argument on the basis that the new requirement was covered by article 145 of the Basic Law, which gives the Government the right and duty to formulate, on its own, on the basis of the previous social welfare system, policies on the development and improvement of the system in the light of the economic conditions and social needs. His Lordship found it “difficult to understand how the provisions of art 144 could, in effect, stultify this requirement [ie the requirement under art 145 that the Government shall develop and improve the social welfare system] given that the legislation complained of falls squarely within the area of development of the social welfare system”: p 250H-I. 132.It has to be recognized that under the applicant’s argument, there is a similar potential conflict between article 141(3) and article 145 relating to a religious organization’s guaranteed right to continue running welfare institutions and to provide other social services in accordance with its previous practice, if the Government should pursuant to article 145 introduce a new policy on the development and improvement of the system of social welfare that deviates from the religious organization’s previous practice in question. 133.For the sake of completeness, I would also point out that under the applicant’s argument, there is again a potential conflict of a similar kind between article 138 and article 141(3) relating to hospitals run by religious organizations. 134.In relation to all this, according to the applicant’s argument, presumably article 141(3) would prevail over article 145 and article 138 respectively. At least I have not heard any arguments from the applicant to distinguish the case of schools from the case of welfare institutions and social services, or the case of hospitals.
135.One further dimension of article 141(3) is this. It is not an article merely designed to protect the Catholic Church’s running of seminaries, schools, hospitals and welfare institutions and provision of other social services. It is an article that applies to all religious organizations in Hong Kong and it relates to all endeavours and undertakings by these religious organizations so long as they fall within the description of “seminaries and other schools, hospitals and welfare institutions … other social services”. 136.According to the applicant’s argument, all these religious organizations have a constitutionally guaranteed right to carry on these endeavours and undertakings “in accordance with their previous practice”, any conflicting new Government policy notwithstanding. This is so regardless of the content of the previous practice in question. 137.It is true that the applicant has put in voluminous materials to set out what its previous practice in relation to running aided schools was. The practice was, if I may so with respect, careful and sophisticated, certainly well grounded in the Roman Catholic faith. 138.However, the proper interpretation of article 141(3), which applies not only to the Catholic Church but also to all other religious organizations of different faiths, cannot be based only on the previous practice of the Catholic Church in running schools. The construction must cater for situations where the previous practice was less sophisticated and well developed, and even where it was less than meritorious. 139.The applicant’s argument would mean that despite that fact, religious organizations can insist on following their previous practice in running an aided school, which by definition, is a school receiving heavy subsidies from the Government in terms of its establishment and daily operation, in disregard of any policy formulated by the Government pursuant to article 136(1) to develop and improve the previous educational system. 140.I am not here for one moment suggesting that there should be discrimination amongst different religions or religious organizations, or that there should be one law for a major religious faith with hundreds of aided schools and other medical/welfare/social service endeavours behind it, and another law for smaller religious organizations with relatively speaking lesser contributions in terms of running schools and other institutions or services in the society. It is precisely the opposite position that compels this Court not to focus exclusively on the position of the Catholic Church or the applicant but to take a broader view of the matter in arriving at the correct construction of article 141(3) and determining its proper relationship to article 136(1). 141.An important background fact is that there are and were at the time when the Basic Law was drafted or promulgated different religious organizations of different faiths, histories and sizes in Hong Kong, running schools, hospitals and other welfare institutions and social services with different practices of their own. 142.The important point here is that article 141(3) is, as it were, “religion-blind”. It draws no distinction between a Catholic, a Protestant, a Buddhist, an Islamic and a Taoist organization. Neither does it differentiate between a one-school religious organization and a major school sponsoring body such as the applicant or some of the large Protestant school sponsoring bodies. Nor, as mentioned, does article 141(3) distinguish between seminaries, schools, hospitals, welfare institutions and social services.
143.Another background fact which must be borne in mind is this. It is common ground that at all material times aided schools run by religious organizations amounted to and still comprise over 50% of total aided schools in Hong Kong. Of course, they include not only schools run by the Catholic Church but also those run by other religious organizations, big or small. 144.The applicant’s argument would therefore mean that more than half of the aided schools in Hong Kong are, in effect, immune from whatever educational policies that Government of the Hong Kong SAR may formulate, based on the previous educational system, to develop and improve the system, if they should happen to conflict with the previous practices of the religious organizations in running the schools. 145.This, in my view, is yet another important context that must be borne in mind. The fact that in Hong Kong, over half of the aided schools were run by religious organizations was a fact which must have been well known to the drafters of the Basic Law.
146.My task is to find out what the true purpose or intention of article 141(3) is, in light of, amongst other things, article 136(1) and the similarly worded articles 138 and 145. 147.It is true that the general theme of the Basic Law is one of continuity of the past system, which is founded on the State policy of “one country, two systems”. Article 141(3) is no doubt based on the principle of continuity. It speaks of religious organizations’ right to “continue” to run schools and so forth. It specifically provides for the running of schools and other institutions in accordance with the religious organizations’ “previous practice”. 148.Mr Dykes argued that there is no “hierarchy of rights” under the Basic Law and article 136 does not therefore “trump” article 141. 149.Despite the very skilful way in which senior counsel has phrased his argument, what it really means is that article 141(3), in counsel’s word, “trumps” article 136(1). 150.In relation to the principle of continuity, it should be noted that even under the previous system in operation prior to 1 July 1997, the practice in accordance with which a religious organization ran its school or other institutions was always subject to Government or legislative change. There was simply no constitutional guarantee against change under the pre-1997 system. Of course, I recognise that the principle of continuity is very often taken to mean that the pre-existing system prior to 1 July 1997 should remain unchanged and therefore there should be no change emanating from the Government of the Hong Kong SAR after 1 July 1997. However, looking at it from another perspective, if the applicant’s argument is accepted, it would mean not continuity but giving religious organizations an “improved” right to do things in their (previous) ways, a right over and above what they used to enjoy under the pre-1997 system. 151.Under the applicant’s argument, whereas under the previous system, the Government or Legislature could always change the way religious organizations ran aided schools and so forth, after the establishment of the Government of the Hong Kong SAR, the Government cannot change the previous practice of religious organizations. 152.I am not for a moment suggesting that this cannot be the case. The Basic Law is not short of examples of such cases. 153.However, in the context of education and development of the educational system, it is an important question to ask whether the Basic Law really intends to confer such an improved right on religious organizations in running, amongst other things, aided schools, in effect at the expense of the Government of the Hong Kong SAR, for a period of 50 years[2].
154.Continuity means immunity from change. Change can potentially come from, in the context, the Central Government on the Mainland (including the Mainland authorities on religious affairs), religious organisations on the Mainland (such as the Chinese Patriotic Catholic Church), or the Government of the Hong Kong SAR established on 1 July 1997. 155.The first concern, ie change enforced by the Mainland Government and authorities on religious affairs, is well taken care of by article 136(1) in relation to education, article 138 regarding medical and health services and article 145 pertaining to social welfare. These articles provide specifically that new policies in these areas can only be formulated by the Government of the Hong Kong SAR – “on its own”. 156.The possibility of change imposed by religious organisations on the Mainland on the activities of local religious organisations, including that in education, is denied by article 148, which specially lays down the principles of non-subordination, non-interference and mutual respect, as the governing principles on the relationship between Mainland and local religious organisations. 157.That leaves change emanated from the Government of the Hong Kong SAR, which forms the crux of the present discussion. Is article 141(3) designed to withstand any such change coming from the Government of the Hong Kong SAR in the field of education, health and medical services or social welfare?
158.That this is a possible objective of article 141(3) is well illustrated by article 141(1), which specifically prohibits the Government of the Hong Kong SAR (not the Mainland Government) from restricting freedom of religious belief, religious activities or interfering in the internal affairs of religious organizations. 159.However, is it the purpose or intention of the Basic Law to prevent such changes made by the Government of the Hong Kong SAR from taking effect in relation to schools and other institutions or social services run by religious organizations in so far as they depart from the religious organizations’ previous practice? 160.At this juncture, I return to one of the first points I made in the present discussion. In the context of education, by definition, one is only talking about a newly formulated educational policy, which is based on the previous educational system, and which is on the development and improvement of education: article 136(1). Likewise, for any newly formulated social welfare policy: article 145. As regards a new policy to improve medical and health services, it need not be based on the previous system, but has to be a policy to improve medical and health services: article 138. 161.Moreover, it must come from the Government of the Hong Kong SAR and no one else. 162.And this, ie that the newly formulated policy must come from the Government, leads to a further dimension in the current discussion. It should be noted that the relevant articles are not merely concerned with 2004 when the relevant amendments were made to the Education Ordinance, or now (2006). The Basic Law, and therefore articles 136(1), 138, 141(3) and 145, are and shall remain the supreme law of the Hong Kong SAR for 50 years up to 2047. The Basic Law itself envisages changes to the election methods of the Chief Executive as well as the Legislature. No doubt, these changes will be gradual changes. See articles 45 and 68 of the Basic Law. 163.The argument of the applicant could mean that regardless of how the future Chief Executive who of course leads the Government of the Hong Kong SAR and the Legislature are going to be elected by the residents of Hong Kong, whatever new educational policy that may be formulated by the Hong Kong SAR Government led by the Chief Executive and whatever new legislation enacted by the Legislature to give effect to such formulated policy to develop and improve the educational system, which happen to conflict with a practice that a religious organization had prior to 1 July 1997 in running an aided school can have no effect on the school run by the religious organization. That has been the case, according to the applicant’s argument, in relation to the 2004 amendments. Presumably that will still be the case in relation to any such newly formulated policy, say, in the year 2044. 164.On the other hand, I have not forgotten that the Basic Law is a living constitution and an updating construction should be given, just as it should be given to an ongoing Act or Ordinance: Bennion, Statutory Interpretation (4th ed) 762 et seq. In other words, the Basic Law is to be treated as always speaking. In its application on any date, the language of the Basic Law, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. 165.On balance, I think the concern that I have just mentioned (ie how the relevant articles should be interpreted many years down the road under changed circumstances if a similar argument should arise again), although relevant generally, should not unduly affect my construction of the articles as of 2004 or now.
166.Grant the theme of continuity and the apprehension about changes coming from the Government. The more pertinent question is whether those concerns were so strong that the drafters of the Basic Law and the National People’s Congress, in drafting and enacting article 141(3), should be taken to have chosen to address them by giving a blanket immunity to religious organizations in running schools (and indeed other institutions and services) from any newly formulated policies – whatever they may be – made by the Government of the Hong Kong SAR, for half a century counting from 1 July 1997 (subject to the updating construction point just mentioned)? Could such an intention be properly ascribed to those responsible for drafting and enacting the Basic Law? 167.I do not wish to understate the apprehension about undue restriction or interference from the Government of the Hong Kong SAR in relation to the activities of religious organizations and believers. Article 141(1), as I said, is a prime example of a constitutional guarantee against any such Government restriction or interference. 168.But unlike article 141(1), article 141(3), with the exception of running seminaries, is not concerned with the contents of religious belief, the internal affairs of religious organizations or core religious activities such as congregational worship, prayers, fellowship, religious teaching of believers and preaching – these are matters of unique significance to religious organizations and believers. Rather, article 141(3) is concerned with (leaving aside seminaries for the time being) schools, hospitals, welfare institutions and social services, subject matters that are not peculiar to religious organizations or believers. They are subject matters concerning the whole society and all residents in Hong Kong regardless of their faiths (if any). In relation to them, religious freedom and autonomy is not so much in issue. Rather, what is more important is non-discrimination against religious organizations by reason of their beliefs in these endeavours and activities. Put another way, article 141(3) guarantees religious organizations the right to run schools, hospitals, welfare institutions and social services as before. They would not be debarred from undertaking these endeavours and activities by reason of their religious background. As Mr Fok has submitted, article 141(3) has more to do with non-discrimination on the basis of religion rather than anything else. As for running seminaries, depending on the facts, it probably qualifies for protection under article 141(1) anyway, as falling within the internal affairs of religious organisations or amounting to a religious activity. 169.Article 141(1) deals with what I would term the basic rights of religious organizations. Regardless of the form of the Government or Legislature, they cannot violate such fundamental rights. However, as mentioned, article 141(3) deals mainly with education, medical and health services, as well as welfare and social services. They are conventional subject matters properly falling within the responsibility of a national or local government. 170.I am, of course, fully conscious of the important roles played by the applicant and other religious or voluntary organisations in education, medical and health services, as well as welfare and social services, particularly during the earlier years of colonial rule. But it is fair to say that by mid 1980s and early 1990s, when the Joint Declaration was signed and the Basic Law was drafted and eventually promulgated, the Government had assumed, whether directly or indirectly (including financially), substantial responsibilities in these areas; and in response to the ever-increasing expectations and requirements of a modern society, the responsibilities were (and still are) growing incessantly. To contend that in relation to these conventional areas of governance, the say of a religious organization is intended to prevail over that of the Government’s requires persuasive justification, which I find lacking on the materials placed before the Court. 171.Leaving aside concerns over freedom of religious belief and religious activities or interference in the internal affairs of religious organizations, or discrimination on the basis of religion or religious belief, it is difficult to see, on the materials that have been placed before the Court, the preservation of the “previous practice” of religious organizations in running aided schools after the establishment of the Hong Kong SAR as a sufficient justification for a blanket prohibition against change even though such change is brought about by policies formulated in accordance with article 136(1). The background fact is that, as mentioned, prior to July 1997, such previous practice was always liable to change by the Government and the Legislature. The doctrine of unity of the Diocese, stressed by the applicant in these proceedings, was, for instance, always liable to change by the Government or Legislature prior to 1 July 1997. 172.Once one puts to rest concerns about restrictions, interference or discrimination by suitable constitutional guarantees and protections given elsewhere[3], it is not easy to find, at least on the materials before the Court, sufficient justification for a total prohibition of change in the area of education relating to aided schools run by religious organisations. 173.Of course, what I have said should not be misinterpreted as an attempt to re-open the debate as to what should or should not be included in the Basic Law. That was the responsibility of those tasked to draft and enact the Basic Law. If, on the proper construction of the Basic Law, some right or protection is included, it is included and that is final – it is not for the court to rewrite the constitution to achieve a different result in accordance with its own view on what should or should not be included or excluded. Far from it. My discussion on the sufficiency or otherwise of the justification for the existence of the suggested immunity from Government policy given by article 141(3) is solely for the purpose of testing whether one could properly ascribe to the drafters of the Basic Law and the National People’s Congress a legislative intent to that effect.
174.Mr Pun, following Mr Dykes, submitted on behalf of the applicant at the hearing that an earlier draft of article 141(3) proposed to replace “previous practice” with “previous procedures” and to add “according to law” to the provisions in article 141(3). The two suggested amendments were eventually dropped. 175.Mr Pun sought to argue that the proposed changes were intended to limit religious organizations’ right to only procedural matters rather than substantive matters in running schools, and to subject the previous practice/procedure to new legislation or policy made by the Government of the Hong Kong SAR. The dropping of the amendments, counsel therefore argued, showed that the drafters of the Basic Law intended to confer a substantive constitutional right upon religious organizations to run schools according to their previous practice in respect of both substantive and procedural matters as opposed to procedural matters only, as well as to immune such previous practice from change effected by newly formulated policy or enacted legislation. 176.I disagree. I agree with Mr Fok that no such inferences could be drawn from the earlier draft because the Court simply does not know why the two suggestions were proposed in the first place and why they were eventually not adopted. The materials relied on by Mr Pun simply did not provide any information on these questions.
177.Mr Dykes argued that article 141(3) is “stronger” than article 136(2), which gives community organizations and individuals the right to run educational undertakings of various kinds in Hong Kong, “in accordance with law”. There can be no dispute that community organizations include religious organizations: Wang Shu-wen, op cit at p 63. 178.I can see the logic of the argument. What is the purpose of enacting article 141(3) if all that is meant is that religious organizations, like other community organizations and individuals, are subject to whatever change that the Government may introduce pursuant to article 136(1) to the educational system, in the way they run educational undertakings, including aided schools in Hong Kong? 179.However, that would be too simplistic a view. First, it is clear that articles 136(2) and 141(3) only overlap with each other. They do not cover entirely the same subject matter. Not only does article 136(2) cover community organizations other than religious organisations and individuals, it also applies to educational undertakings of various kinds – not limited to seminaries and schools. On the other hand, article 141(3) relates not only to seminaries and schools, but also to hospitals, welfare institutions and social services. 180.In my view, the fact that two articles in the Basic Law overlap in their respective spheres of operation does not necessarily mean that one article must mean something more than the other article in the area of overlapping or must be “stronger” than the other article in order not to be otiose. 181.Second, even if there is a substantial overlapping, it does not mean that article 141(3) should be given a “stronger” construction in order to justify its existence. In the present context, I think a good justification for the existence of article 141(3), insofar as it relates to schools, is that it puts it beyond doubt that religious organizations may continue to run schools as before. It gives prominence to the protection that the Basic Law accords to religious organizations. It singles out religious organizations for specific mention, so as to highlight the protection and guaranteed right given. There is no need to give any “stronger” construction to article 141(3) to defend its place in the Basic Law. 182.As to the absence of any reference to “previous practice” in article 136(2), one must bear in mind the context of article 136(2), which applies to all community organizations and individuals, who may or may not have any “previous practice” in running educational institutions. Article 136(2) simply gives everyone the right to run educational institutions in Hong Kong in accordance with law. 183.On the other hand, in relation to article 141(3), it was a well-known background fact at the time when the Basic Law was drafted that many schools in Hong Kong were run by religious organizations. Therefore, it made sense for the drafters to provide in article 141(3) that these religious organizations could continue to run the schools in accordance with their own prevailing practice after the establishment of the Hong Kong SAR. 184.On the other hand, in my view, one cannot read too much into “in accordance with law” in article 136(2) and its absence in article 141(3). As Mr Fok submitted, there can be no question that the drafters of the Basic Law proceeded on the assumption that religious organizations were running schools in accordance with their practice, in full compliance with the law, and there was no suggestion that any such practice contravened the law. 185.In my view, the question of whether article 141(3) overrides any new policy or law made by the Government or the Legislature pursuant to article 136(1) cannot be decided by reference to the presence or absence of the phrase “in accordance with law”. 186.Mr Fok reminded the Court that the origins of articles 136(2) and 141(3) are quite different. The former is derived from article X in Annex I of the Joint Declaration (JD ref 128 & 129) whereas the latter comes specifically from article XIII in Annex I of the Joint Declaration (JD ref 154). 187.Specifically, article X in Annex I of the Joint Declaration (JD ref 128) requires the Hong Kong SAR Government to maintain the educational system previously practised in Hong Kong, ie a system that included the ability of non-governmental organisations and individuals to run educational undertakings, including kindergartens, schools, colleges and universities. Counsel submitted that these organizations and individuals running educational undertakings in Hong Kong must, of course, act in accordance with law in doing so. 188.Counsel went on to submit that the phrase “in accordance with law” in article 136(2) does not mean the references elsewhere in the Basic Law to the running of educational undertakings are not also subject to law such as the Education Ordinance. Counsel pointed out that in the case of the applicant’s aided schools, the management and conduct of such schools is and has always been expressly subject to the provisions of the Education Ordinance and of the subsidiary legislation made under that Ordinance. 189.Counsel also reminded the Court that a similar provision in relation to the provision of medical and health services can be seen in article 138 of the Basic Law. 190.I find force in counsel’s argument. 191.Mr Fok further submitted that article 136(2) simply clarifies that private educational undertakings may be operated in the Hong Kong SAR, ie Hong Kong is not to have a purely state-run education system. This would be a valid concern for any capitalist city, counsel submitted, the sovereignty of which was about to be resumed by a socialist country practising the socialist system and socialist policy. Again I find force in counsel’s argument.
192.I do not find Mr Dykes’ reference to article 13 of the ICESCR particularly helpful. The right to education of residents of the Hong Kong SAR cannot be translated into a right of veto on the part of a religious organization in the running of an aided school. The case, as Mr Fok submitted, has nothing to do with the right to education. Nothing in the 2004 amendments interferes with the Government’s provision of nine years of free and compulsory school education. Nor do the amendments seek to require parents to send their children to state-school only or to impose any particular content on the education that those children will receive from schools run by religious organisations. 193.In reply to the applicant’s argument that article 13(3) of the ICESCR requires the Government to take a “hands-off” approach when it comes to regulating schools which are not in the public sector, Mr Fok argued by reference to the evidence that aided schools are schools very much in the public sector, which are all operated on Government funds. Again I find force in Mr Fok’s argument. 194.In any event, I do not see article 13 as giving religious organizations a right of veto in terms of educational policy affecting aided schools run by them. I need not deal with the position of wholly private schools not receiving any or any substantial subsidies from the Government. 195.I agree with Mr Fok that Mr Dykes’ reference to the American case, Pierce v Society of the Sisters of the Holy Names of Jesus and Mary 268 US 510 (1925) does not advance the applicant’s case. In Pierce, the Supreme Court of the United States decided that an Oregon State law that required children to attend public schools was unconstitutional, as it infringed the right of parents to control the upbringing of their children and violated the liberty against the deprivation of property without due process of law guaranteed under the 14th Amendment of the US Constitution regarding the school premises of the affected religious and military schools run by the parties concerned. With respect, I see little relevance of the case to the present discussion under ICESCR.
196.Having borne firmly in mind the proper approach to interpretation of the Basic Law and having considered the submissions of counsel on both sides as well as the matters specifically discussed above, I am of the view that article 141(3) is not intended to give religious organizations a right of veto in the running of their aided schools, free from policies formulated by the Government pursuant to article 136(1) that conflict with their previous practice. Rather, it is the other way round. The Government has the last say in terms of educational policies, including policies on the educational system, so long as those policies are formulated pursuant to the requirements under articles 136(1), any inconsistent previous practice of religious organizations notwithstanding. 197.I would not go so far as to say that the applicant’s argument means that the educational system, insofar as it relates to schools run by religious organizations, is locked into a reliquary. Nor am I prepared to say that the construction of article 141(3) put forward by the applicant will stultify change to the educational system insofar as it relates to aided schools run by religious organizations. The simple reason is that a religious organization can always change its own practice in running its school. It is not required by the Basic Law to keep its previous practice, which would have meant locking the system into a reliquary and stultifying change. That is not the case. 198.What, however, the applicant’s argument amounts to is that religious organizations have a right of veto as regards any new policy formulated by the Government if it should conflict with its previous practice. 199.In my view, on the true construction of the relevant articles, that is not right. As I say, the Government of the Hong Kong SAR has the last word.
200.Before parting with this part of the discussion, I would mention specifically one thing. Are there limitations or restrictions on the Government’s right to formulate new policies pursuant to article 136(1), in relation to aided schools run by religious organizations? 201.In my view, there is at least one built-in restriction under article 141(3). Article 141(3) stipulates that religious organizations may continue to “run” schools according to their previous practice. If the changes introduced by the Government pursuant to article 136 to the educational system would result in the religious organizations no longer “running”, in any true sense of the word, the schools in question, I would tend to think there would be a violation of article 141(3). 202.Thus during argument, Mr Fok was asked, on a hypothetical basis, whether amendments that sought to limit the number of school sponsoring body managers to 50% or below would be constitutional. Mr Fok was, understandably, unable or more probably, unwilling, to give a very definite answer. 203.For my part, I would not attempt to specify a percentage. It all depends on the facts and previous practice in question. Nor do I think one could simply look at the percentages. However, in my view, the 60% ceiling imposed by the 2004 amendments would not prevent religious organizations from “running” the aided schools sponsored by them, given the structure mandated by the amendments. I do not wish to express any further view on the matter. 204.Apart from the built-in limitation or restriction in article 141(3), a newly formulated policy pursuant to article 136(1) would possibly be struck down if it should infringe any other constitutionally protected rights of religious organizations. For instance, a policy relating to education, the educational system, its administration or the allocation of funds, which is discriminatory on account of religion, would probably be struck down. And a new educational policy interfering with the rights of religious organizations to “receive financial assistance” or subventions for the purposes of running aided schools might fall foul of the right and protection guaranteed in articles 141(2) and 144. 205.One other possible example – not concerning aided schools – is found in seminaries. As mentioned above, seminaries probably qualify for extra protection under article 141(1), which the Government would need to take into account when formulating a new educational policy potentially affecting the running of seminaries. 206.All this, however, would ultimately be a question of proper construction of the Basic Law and the articles concerned. 207.In short, I think there could be limitations on the Government’s right to formulate educational policies under article 136(1). But on the facts of the present challenge, no such complications arose. 208.In my view, article 141(3) per se, on the facts, does not immune the applicant from the 2004 amendments.
209.In conclusion, I agree with the Government’s position that the 2004 amendments are justified by article 136(1). Article 141(3) does not exempt the applicant from complying with the 2004 amendments, because article 141(3) does not give the applicant an exemption from a policy formulated in accordance with article 136(1). Subject to the argument based on article 137(1), that conclusion effectively disposes of the present constitutional challenge.
210.It thus becomes unnecessary to deal with Mr Fok’s alternative argument that in any event, article 141(3) is not infringed unless there is a “material change” to the previous practice, and that the 2004 amendments do not constitute material changes to the applicant’s previous practice. 211.As far as the test of “material change” is concerned, Mr Fok based his argument on Secretary for Justice v Lau Kwok Fai, supra, at p 330 (paras 65-66), where a distinction was drawn between preserving a previous system and preserving all the elements of which the system consists. Sir Anthony Mason NPJ explained, in the context of article 103 of the Basic Law which concerns maintaining Hong Kong’s previous system of recruitment, employment, assessment, discipline, training and management for the public service, that the broad question in that case was whether the system continued or whether it was so materially changed that it became another system (para 66). 212.Mr Fok’s argument was essentially that in the seven areas identified by the applicant as having been changed by the 2004 amendments, there have not been any material changes. The main theme of Mr Fok’s argument is that by according the school sponsoring body a maximum of 60% representation in the incorporated management committee, the sponsoring body retains, in substance, full control in the seven areas identified. 213.On the other hand, Mr Dykes maintained that the changes were fundamental and substantial. In his reply submission, counsel set out the essence of the previous practice in the following way. The Bishop set the tune for the moral and religious instruction in schools. The previous practice of the applicant was to enjoy autonomy of management under the Education Ordinance. The essence of the practice was that the applicant was not required to subscribe to a compulsory school management initiative programme under which its nominated managers were obliged to share decision-making with persons not selected by it. Mr Dykes argued that the educational system in place before 1997 recognized that autonomy both as a matter of practice and as a matter of law with the guarantee of priority. Counsel argued that the new compulsory SMI programme dilutes autonomy and changes the basis of school management. Put simply, the applicant cannot select as managers those individuals whom it believes could best transmit its “vision and mission”. The applicant, it was said, has no problem with the SMI otherwise. 214.Mr Dykes accepted that the 60% guaranteed majority on a management committee ensures that the applicant still has legal control of the committee. But he made the point that the applicant did not have to operate like a majority shareholder under the previous practice. 215.In a seven page “Annex” to his written opening submission, Mr Dykes and his juniors set out the changes in the seven areas in some detail. In view of my primary conclusion, I will not go into these changes in any great detail. 216.Before I proceed to outline the respective contentions over the individual areas of change, suffice it to say for my present purpose, the essence of the applicant’s case is that whereas previously the applicant/the Catholic Church enjoyed absolute control over the management of their aided schools in the seven areas in question, that control has been diluted to 60%. The applicant is not satisfied with a “boardroom majority”. It overlooks, as I have already outlined, the unity of the Diocese and the emphasis on the attitude, philosophy and ethos that made the applicant’s schools specifically Catholic. 217.Mr Fok’s detailed submissions on the changes can be found in paragraphs 144 to 150 of his written notes of oral submissions made available to the Court during the hearing. Again, given my primary conclusion, I will not repeat the same in any great detail here.
218.What I will do now is to give a brief summary of the seven areas of change from the respective standpoints of the applicant and the Government. 219.The first area of change relates to the obligatory submission of constitutions and the incorporation of management bodies. In essence, the complaint is that a written constitution must be submitted by the sponsoring body for the Permanent Secretary’s approval and that he or she may as a matter of discretion refuse to approve the constitution. The Permanent Secretary may, it has been submitted by way of example, refuse to approve the draft on the basis that its contents are inconsistent with any regulations made by the Chief Executive-in-Council in respect of, say, the teaching of certain materials in school. 220.Mr Fok’s answer for the Government is that there has always been a power under the Education Regulations (regulation 75) for the Director of Education to call for the submission of a written constitution of the school management committee and the applicant has always been subject to the Education Ordinance and to the supervision of the Permanent Secretary/Director of Education. As to refusal to approve a draft constitution, Mr Fok reminded the Court that any such decision by the Permanent Secretary is always subject to supervision by the court by way of judicial review. Mr Fok added that the requirement of incorporation of management committees was first recommended in February 2000 by the Advisory Committee in its Consultation Document for very good reasons, as has been described above. 221.The second area of change relates to the reduction of the applicant’s representation in the management bodies from an absolute 100% control to a maximum 60% representation. 222.I have dealt with this aspect of change in the earlier parts of this judgment and there is no need to elaborate on this area of change again here. 223.The third area of change is the diminution in the scope of the applicant’s functions to areas permitted under section 40AE(1). The applicant recognized that the incorporated management committee is required by the same section to formulate education policies in accordance with the vision and mission set by the sponsoring body and that it is made accountable to the Permanent Secretary and the sponsoring body for the performance of the school. However, it argued that it is unclear what the sanctions are should the incorporated management committee be in breach of its duties. The applicant noted that its views and support for the cancellation of registration of any non-sponsoring body manager who does not implement its vision and mission under the new system no longer carry any weight at all before the Permanent Secretary, with the removal of the guarantee of priority. 224.Mr Fok disagreed. Apart from maintaining that the provisions require the incorporated management committee to formulate education policies in accordance with the vision and mission set by the sponsoring body and make the committee accountable to the sponsoring body for the performance of the school, Mr Fok also pointed out that the sponsoring body could always cancel the registration of any sponsoring body manager if he or she does not act in accordance with the vision and mission it has set. As regards non-sponsoring body managers, apart from statutory duties on their part to follow the vision and mission set by the sponsoring body, Mr Fok stressed the 60% control that the sponsoring body will in any event exercise over the incorporated management committee through the managers appointed by it. In practical terms, the sponsoring body controls the incorporated management committee. 225.Regarding the loss of the guarantee of priority, the applicant’s case is that under the previous practice there were five areas in which the views of the sponsoring body prevailed over the management committee, as has been described above. This deference to the views of the applicant as school sponsoring body was an essential element of its previous practice, it is contended, and was fundamental in ensuring that the management committee comprised of members whom the applicant had confidence in to execute the vision and mission of a Catholic education whole-heartedly and faithfully. 226.In contrast, under the new system, the registration of managers is in the hands of the Permanent Secretary and deference to the sponsoring body is expressly negated. In the selection and registration of managers, the views of a sponsoring body have no weight except in relation to sponsoring body managers. 227.Mr Fok pointed out that the so-called guarantee of priority was only introduced in 1993, several years after the promulgation of the Basic Law. The drafters simply could not have had it in their minds when drafting article 141(3). 228.The five particular matters identified in section 72A, counsel pointed out, only enabled the sponsoring body to influence future management after a disagreement with an incumbent manager. It did not guarantee that a school management committee would not depart from its school sponsoring body’s vision and mission. Priority in relation to the five particular matters was not a general provision that the school sponsoring body’s views took priority on all matters of management. 229.In any event, the specific purpose of the guarantee given under section 72A of the Education Ordinance was to implement the school-based management policy. The so-called guarantee was in fact a highly qualified one because the Director of Education was expressly not required to seek the sponsoring body’s view. However under the 2004 amendments, the sponsoring body has now got a majority control of the incorporated management committee in all matters. 230.In relation to changes concerning the supervisor, the complaint of the applicant is that the selection process of supervisors under the new system is now completely different. In the past, given the applicant’s practice and the guarantee of priority, the preference of the applicant was a paramount and decisive factor in the selection of supervisors for its schools. Under the new system, a supervisor may be appointed by the sponsoring body or elected by the managers in accordance with the constitution. Furthermore, the supervisor’s role and function have been changed and reduced materially. 231.Mr Fok’s answer is that the school sponsoring body is responsible for drafting the constitution, including provisions regarding selection of the supervisor. Moreover it controls 60% of the school management committee. Selection of the supervisor is effectively in the hands of the school sponsoring body. As regards the supervisor’s role and function, the management committee, which is under the effective control of the sponsoring body, may delegate responsibilities to the supervisor as it sees fit. 232.The sixth area of change relates to selection of school principals. The applicant complained that under the new system, the rules of selection are entirely different. It is now done by a principal selection committee. 233.Mr Fok’s answer is essentially that the applicant will be responsible for drafting the school’s constitution in the first place, which can make provisions for the composition of the principal selection committee. Moreover it is in control of the school management committee by virtue of its 60% membership. The two factors combined mean that the selection committee is again in the effective control of the school sponsoring body. 234.The final area of change pinpointed by the applicant is the selection of teachers. Previously it was within the function of the supervisor, now it is performed by the incorporated management committee. 235.As may be expected, Mr Fok’s answer is again that the incorporated management committee is still under the control of the applicant through its majority control of the incorporated management committee and the requirement that the committee must act according to the vision and mission set by the applicant. 236.Mr Dykes argued that the cumulative effect of these seven areas of change constituted a substantial or fundamental departure from the applicant’s previous practice. Mr Fok disagreed.
237.In my view, the essence of the complaint lies fundamentally in the increased management power of the school management committee, which has now to be incorporated, and that the control of the applicant over the school management committee has been diluted from 100% to 60%. 238.As I say, given my primary conclusions, it is not necessary to decide on this fallback argument of Mr Fok. All I wish to say is that having considered the competing submissions and proceeding on the assumption that “material change” is the correct test, if it had been necessary to decide the case on this alternative basis, I would tend to think that the 2004 amendments did introduce material changes to the previous practice of the applicant in running aided schools. In short, my view is that one is not merely concerned with giving a SSB a boardroom majority here. Management of schools is much more than a show of hands and passing resolutions. Introduction of “outsiders” (ie non-SSB managers) to the incorporated management committee would invariably materially change the way the applicant used to run the schools. To be sure, these outsiders could always be “voted down” in case of clashes in views. But that is not the point. The entire atmosphere and culture at the school is potentially changed. And unity of the Diocese would become quite irrelevant and meaningless. 239.What I have just said and concluded, ie that the changes are “material changes” to the applicant’s previous practice in terms of article 141(3) must not be confused with my earlier conclusion that the 2004 amendments were formulated on the basis of the previous educational system pursuant to article 136(1). There is no contradiction between the two conclusions. They only reflect the fact that to a large extent, the applicant has not been particularly receptive to the SMI/SBM policy, which has been developing and evolving over the years – culminating in the 2004 amendments. 240.I should also emphasise that by concluding that the 2004 amendments have introduced material changes to the previous practice of the applicant in running aided schools, I am not commenting on whether these material changes are, so far as the applicant is concerned, changes for the better or otherwise. That is not in issue in this case. I make no comment on it, other than to reiterate that for the purpose of dealing with the applicant’s contention based on article 136(1), I have, as explained, proceeded on the footing that the 2004 amendments represent a policy formulated by the Government on the development and improvement of the educational system. Article 137(1) of the Basic Law 241.Finally I turn to article 137(1) dealing with autonomy of educational institutions. The applicant’s case under article 137(1) is that the applicant, as an educational institution, has a guaranteed constitutional right to retain autonomy. The 2004 amendments have violated that right. The applicant’s autonomy has been diluted by the compulsory introduction of 40% of outsiders into the school management committee, as well as the other areas of change. 242.I should emphasise at the outset of this part of my judgment this: For the sake of an orderly presentation of the arguments concerned and the reasons for my conclusions, I have dealt with articles 136(1), 141(3) and 136(2) of the Basic Law and article 13 of the ICESCR first and set out my conclusions in relation to them in the preceding sections of this judgment, before I move on to deal with article 137(1). However, this does not mean that in reaching my earlier conclusions, I have not borne in mind the arguments on article 137(1) and its possible relevance to the proper construction of article 136(1) or 143(3). Quite the contrary is true. Indeed Mr Dykes’ arguments on those two articles contained, from time to time, references to the preservation of educational institutions’ autonomy, a subject matter of article 137(1), and for my part, I have borne all arguments in mind before reaching my conclusions on the proper constructions of these articles and their inter-relationships.
243.Article 137(1) stipulates that educational institutions of all kinds may retain their autonomy and enjoy academic freedom. 244.I agree with Mr Fok that the applicant is not an “educational institution”. Rather it is a religious organization which runs schools in Hong Kong. Quite plainly article 137(1) is derived from article X in Annex I of the Joint Declaration (JD ref 130 &131), which provides that “institutions of all kinds, including those run by religious and community organizations, may retain their autonomy”. A clear distinction is drawn between educational institutions and religious organisations. Plainly it is the autonomy of the educational institutions, including those run by religious organisations, not the autonomy of religious organizations, which is protected by article 137(1).
245.More substantively, Mr Fok has very helpfully referred the Court to a 1999 document entitled United Nations Committee on Economic, Social and Cultural Rights, General Comments No 13, dealing with the right to education under article 13 of ICESCR. Paragraphs 38 to 40 deal with academic freedom and institutional autonomy. They read:
246.As the General Comments pointed out, autonomy must be consistent with systems of public accountability, especially in respect of funding provided by the State and an appropriate balance has to be struck between institutional autonomy and accountability. Institutional arrangements should be “fair, just and equitable, and as transparent and participatory as possible”: paragraph 40. 247.This is, in my view, what the school-based policy is all about, and of course, aided schools are heavily funded by the Government of the Hong Kong SAR. The privilege of autonomy carries with it the requirement of accountability. That must mean that the Government, which provides huge funding to aided schools, has a right to regulate the management of aided schools for the purpose of accountability. Autonomy cannot therefore be an absolute right. 248.That has always been the case prior to July 1997 given that aided schools were under the control of the Education Ordinance and the applicable codes of aid. The Government and the Legislature have always possessed the right to enforce changes regarding the management of aided schools. Article 137(1) only guarantees the right to “retain” institutional autonomy. As Mr Fok submitted, it does not confer a new or improved right of autonomy on educational institutions. It does not require a greater degree of independency to be conferred upon them. 249.In my view, educational institutions’ autonomy must be subject to the policies formulated by the Government of the Hong Kong SAR pursuant to article 136(1) of the Basic Law. 250.In short, I also reject the argument of the applicant based on article 137(1). Arguments on proportionality, extent of challenge and delay 251.Given my conclusions, it is not necessary to deal with Mr Fok’s further arguments based on proportionality, or his submissions on the extent to which the provisions under challenge are lawful in any event. Nor his contention regarding delay. I do not need to express any views on those matters. Outcome 252.In conclusion, the constitutional challenges against the relevant 2004 amendments fail. The present application for judicial review is therefore dismissed. As for costs, I make an order nisi that the applicant pay to the respondent the costs of these proceedings, to be taxed if not agreed. I also grant a certificate for two counsel. Unless an application to vary the costs order nisi is made within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period. 253.I thank counsel for their helpful assistance.
Mr Philip Dykes SC, Mr Hectar Pun and Ms Esther Lin instructed by Messrs Wong, Hui & Co, for the applicant Mr Joseph Fok SC and Mr Daniel Wan instructed by the Department of Justice, for the respondent [1] These are the applicant’s figures. The Government gives a total of 80 aided primary and secondary schools as of the 2005/2006 school year – 53 aided primary schools, 26 aided secondary schools and 1 aided secondary cum primary school. [2] This is subject to the question of an updating construction of the Basic Law discussed below. [3] Without seeking to be exhaustive: see articles 32(2), 141(1), (2) & (4), 148 and 149 of the Basic Law and articles 1, 15 and 22 of the Hong Kong Bill of Rights based on the International Covenant on Civil and Political Rights – which is constitutionally entrenched in article 39(1) of the Basic Law. Leave to appeal by the applicant to Court of Appeal not granted. Please refer to CACV18/2007 dated 3 February 2010 | |||||||||||||||||||||||||||||||||||||||||||||||
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