NSL and academic freedom

Tai’s sacking happened in the backdrop of the National Security Law (NSL), which has sent chilly winds across academia. Reports of self-censorship have been on the rise since the Occupy protests, so could this be the “the end of academic freedom” as Tai has said? 

 

One area where academics are disquieted is article 9 of the NSL, which states that the Government shall “strengthen public communication, guidance, supervision and regulation over matters concerning national security, including those relating to schools, universities…” 

 

The NSL is vague, but it has handed the government a legal basis to justify changes to the university curriculum, teaching material, and scope of academic freedom. It has also potentially made certain fields of research and academic practices illicit. 

 

What’s interesting, is that this is not the first ring of fire that the university has awkwardly hurdled through.  

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Early pressure – The University Pollster

The first prominent case of an attempt to twiddle with academic freedom at the university was in 2002, when an investigation found that government officials had pressed pollster Robert Chung to not release nasty survey data on public support for Tung Chee-hwa’s (the Chief Executive at the time) and his policies.

 

The scandal began when Chung alleged that the university had attempted to coerce him into halting polls on the Chief Exec’s popularity by threatening to “dry up” his funding; and in response, an independent panel was called to investigate the allegations. 

 

“More than once, I was given a clear message from Mr. Tung via a special channel that my polling activities were not welcomed. Mr. Tung did not like me polling his popularity or the Government’s credibility,” Chung wrote in an SCMP piece. 

 

When the panel’s report was released, 439 academics, more than 50% of the staff at the university, including six of nine deans, 14 associate deans, and 26 heads of departments/centers had signed a petition – demanding that the council accept the report. And in the end, the university’s Vice-Chancellor Cheng Yiuchung, and his deputy, Wong Siulung, resigned from their posts (though they rejected the report’s findings). 

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the Unwelcome Lawyer

The resolution to the pollster controversy was a healthy marker that academic freedom was alive and well, but another challenge would surface a few years later.

 

In 2014, HKU created a search committee (that included the Vice-Chancellor) to replace five pro-Vice-Chancellor positions, and it unanimously endorsed Johannes Chan, a former dean of the Law Faculty, to take up one of the positions. 

 

Like Benny Tai, Chan was well-involved in pro-democratic circles. He was one of the founding members of the Article 23 Concern Group, which evolved into the “Article 45 concern group” that focused on pushing for universal suffrage. He was also blamed for the Occupy Central movement.

 

In June the next year, the Council voted to delay the decision, and in response the HKU Convocation (comprising staff and alumni) held an Extraordinary General Meeting at the Wan Chai Exhibition Center with over 9000 in attendance. 7,821 out of 9,298 votes called for Chan to be appointed Pro-Vice-Chancellor, and another 7,657 voted for the motion demanding that “the Chief Executive shall not be the Chancellor and chief officer of the University.” But none of this was binding.

 

In spite of the show of support, Chan’s nomination was voted down 12 to 8. According to research by Professor Carole J. Petersen, this marked the “first time in HKU’s history that the HKU Council has rejected a recommendation of a Search Committee.” 

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Senate and Council

Remember that it was the council that voted to remove Benny Tai? In the colonial era, the system wasn’t any different. The Chancellor (the governor of HK) would appoint members to the council, but the appointees would come from a list of nominees prepared by the university itself. Since then, however, HK’s chief executives have nominated members to the council without following a list of suggestions – and these figures have tended to be fairly pro-government leaning. 

 

Some academics like Professor Petersen, who used to teach at HKU, have called the continuation of the system a “mistake, as there is evidence that the position is being used far more than during the colonial period to influence the public universities.” 

 

With the NSL and the government’s choice to forego established norms, the Senate or the Convocation has never appeared weaker. But that’s not the only area of concern.

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the NSL’s implications

Two areas that could potentially land academics in trouble are secession, and collusion with a foreign country.

 

The NSL makes advocating for secession, the splitting off of a separate political entity from China, punishable by life imprisonment. But China has a number of territorial disputes, and should an academic suggest a view that doesn’t support the government’s (or China’s) stance, would that academic be prosecuted for secession? 

 

The NSL also outlaws collusion with a foreign country, but academic research (especially at HKU) often involves cross-collaboration with researchers from abroad – sometimes even with foreign funding. Should that research be construed as anti-government, would that constitute an offence under this law? 

 

These remain unclear at present. 

 

In an open letter to Vice-Chancellor Zhang Xiang, the Student Union wrote, “if the University of Hong Kong does not embrace different opinions and the pursuit of universal values, it will be relegated to an oppressive tool of the Chinese regime and even a mere clown in the eyes of the international society and other higher institutions.”

 

To which Vice-Chancellor Zhang replied that, “respect for the freedom of University members in expressing their views remains unchanged; we will uphold this freedom responsibly and act within the law.” 

 

“Academic research is often relied upon by stakeholders to change its policies. We’ve all seen over the last three decades, academic research that was used to pressure the Hong Kong government to enact laws against discrimination, or change housing policies, or treat migrant workers better, or adopt different policies on COVID-19,” said Petersen at a HKU talk on academic freedom.

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What can we do?

Article 4 of the NSL states that, “The rights and freedoms... which the residents of the Region enjoy under the Basic Law of the HKSAR and the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as applied to Hong Kong, shall be protected in accordance with the law.”

 

And according to some legal experts, this might be a bulwark for academic freedom. 

 

“Article 4 of the NSL provides an excellent opportunity for universities to proactively develop responses and policies on academic freedom based on international standards”, said HKU Law Faculty associate professor Kelly Loper.

 

The ICCPR and ICESCR are UN treaties that Hong Kong abides by, and the ICCPR is enshrined in its constitutional framework under the Bill of Rights. Both of which are treaties that give legal protections to the rights of HK citizens. According to Loper, HK Courts may try to apply human rights standards (from the two treaties) when interpreting the vague provisions of the NSL. 

 

Although neither treaty guarantees a specific right to academic freedom, this is derived from other rights, such as the freedom of expression in the ICCPR, and the right to education in the ICESCR. A general comment on the latter has actually been cited in a legal case, where the court ruled that it is, “fundamental that freedom of expression allows for the expression of contrary views.”

 

Petersen suggests that academics capitalize on the ICCPR/ICESCR provisions by adopting a “bottom-up approach”. That is to say, faculties should begin drafting policy regarding the NSL using article 4, and not wait for senior management to propose one, to ensure that the NSL is interpreted in compliance with the ICCPR/ICESCR as much as possible. Moreover, departments also have the best idea of how the law will affect their teaching and research, so they are in the best position to begin discussion and drafting. 

 

For instance, in regards to academic research on territorial disputes, Petersen believes that research in these areas should not be viewed as violating the NSL as this would violate the ICCPR, and the university should openly declare this stance. 

 

“I think it’s really important that academic institutions get out there and take that position publicly,” Petersen says, “so that academics can feel comfortable that if I’m criticized for my research, that my university shares my view that this is not a criminal offence.”

 

The good news is, some discussion has taken place in our university.

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What has been said and done so far?

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“I think most faculties are doing [the bottom-up approach]. The President, the Provost, the other Vice-Presidents have participated in faculty discussions on National Security, and most faculties, at the end of the day, have a sort of informal protocol. As far as I know, those discussions have been quite effective in addressing some of the concerns,” said Professor Fu Hualing of the Faculty of Law. 

 

Faculties have yet to issue concrete guidelines regarding the NSL, but Dean of Social Sciences Professor William Hayward wrote an email to staff saying that, “no one in this Faculty should tell anyone else they cannot present or discuss information based on the content of that information.” 

 

Prof Hayward said further that, “the Faculty will stand alongside any staff member or student whose academic work comes under such scrutiny.” 

 

“We (the Faculty of Law) decided not to have guidelines,” Fu added, “Whether something has violated the NSL has not been decided. We don’t want to be too intrusive, and draw a line that’s even more rigid than the law may be. If we say something is prohibited internally, then we would maybe be sending the wrong message.”

 

The Faculty of Law is currently working on a resource center website on the NSL due to be released in October.

 

Professor Keith Richburg of HKU Journalism wrote to the department that, “as far as we are concerned, our academic mission continues unabated, adhering to the highest standards of journalism and to the core HKU values of academic freedom and freedom of speech.”