Hualing Fu on Managed freedom in precarious times: Maintaining academic freedom in transitional Hong Kong (GlobCon)

"Managed freedom in precarious times: Maintaining academic freedom in transitional Hong Kong"
Hualing Fu
Global Constitutionalism
Published online: January 2025

Abstract: This article examines the status of academic freedom in Hong Kong in light of the increasing securitization of higher education since the implementation of the National Security Law (NSL) in 2020. It provides an analytical framework to comprehend the changing landscape of academic freedom in Hong Kong, highlighting the impact of the NSL and the conflict between the necessity of political control on securitized campuses and the demand for international, free, and high-quality universities to make Hong Kong a global hub for higher education. The article concludes by asserting that the NSL has reshaped and will continue to impact academic freedom and university autonomy concerning core security issues, but there is still a possibility to establish a defendable space for genuine academic freedom in classrooms.

Cora Chan on Scholarship in Times of Constitutional Transformation: A View from Hong Kong (Human Rights Law Review)

"Scholarship in Times of Constitutional Transformation: A View from Hong Kong"
Cora Chan
Human Rights Law Review, Volume 24, Issue 1
Published online: December 2023

Abstract: Hong Kong's constitutional order has been undergoing a momentous transformation since 2020. The introduction of the Hong Kong National Security Law and the use of a plethora of other security tools have pushed Hong Kong's largely liberal legal order in an increasingly authoritarian direction. This article examines the implications of these changes for academic freedom in the territory. Through the lens of Hong Kong, it examines the unique challenges facing constitutional law scholars in authoritarian or liberal backsliding contexts, as well as the distinct contributions they can make. It concludes with reflections on the relevance of arguments against `scholactivism' to authoritarian contexts. The analysis in this article will help us to understand what scholars should and can do in politically volatile environments more generally.

Kelley Loper & Carole J. Petersen on Academic Freedom in the Shadow of Hong Kong's National Security Law (new book chapter)

"Academic Freedom in the Shadow of Hong Kong's National Security Law"
Kelley Loper & Carole J. Petersen
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 12, pp. 255-278
Introduction: This chapter analyses the impact of the Law of the People's Republic of China on Safeguarding National Security in Hong Kong (NSL) on educational autonomy and academic freedom, two core values that the "One Country Two, Systems" (OCTS) model of autonomy is supposed to protect.  Due to space constraints, this chapter primarily focuses on academic freedom in tertiary education.  However, it will also address certain contentious issues which have arisen in primary and secondary schools.

     Following this introduction, Part I reviews the concept of academic freedom, its value to society, and the ways in which it can be undermined.  Part II then analyses the situation in the Hong Kong Special Administrative Region (SAR) prior to the enactment of the NSL.  Although academic freedom and educational autonomy are expressly protected in the Hong Kong Basic Law (BL), changes to university governance in the past two decades have made universities and individual academics more vulnerable to political pressures.

      Part III of the chapter analyses provisions in the NSL that could further inhibit academic freedom and educational autonomy.  The NSL obligates the local government to "promote national security education in schools and universities" and creates several new criminal offences, which also apply extraterritorially.  The NSL also created new security agencies and endowed them with extensive powers.  On the other hand, Article 4 provides that human rights shall continue to be protected, including the rights stated in the BL, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  These two treaties have a special place in Hong Kong's legal framework due to Article 39 of the BL and the Bill of Rights Ordinance (Cap 383) (which duplicates most of the provisions of the ICCPR).  Thus, any policies adopted by Hong Kong's educational institutions should comply with both treaties.  When cases are litigated the local courts should use the ICCPR as a guide to interpret vague language in the NSL.  Thus, the views of the United Nations (UN)  Human Rights Committee, the expert body tasked with monitoring states parties' implementation of the ICCPR, are particularly relevant.  The UN Committee on Economic, Social and Cultural Rights, the monitoring body for the ICESCR, can also offer guidance, particularly in the context of the right to education.  These international standards and their direct incorporation into Hong Kong law allow room for the courts and others to support academic freedom.  At the same time, legal protection alone is unlikely to be sufficient.  Other non-legal strategies, such as the drafting and enforcement of robust academic freedom policies by tertiary institutions themselves, are needed to strengthen academic freedom in Hong Kong going forward.  Indeed,  we conclude that the academic community has an obligation to adopt such policies and that the Hong Kong government has a constitutional obligation to respect them.  Suggested language for a university policy on academic freedom is therefore included at the end of this chapter. 

HKU Law Dean’s Letter to the Incoming Class of 2021

Dear Students,

I am writing to congratulate all new students on your decision to join the Faculty of Law at HKU; and to extend my warmest “welcome back to campus” to our current students.

     Hong Kong is at a critical moment in its political and historical transition and you are undertaking your legal education at this important juncture. The Rule of Law is a core value of our society and indeed it is part of the DNA of our collective identity. Both before and after the 1997 transition, the Rule of Law has been the city’s bedrock and has provided the essential ballast to navigate Hong Kong through troubled waters. In recent years the city has experienced perhaps its ultimate stress test. Studying law at the University of Hong Kong in such testing times is particularly meaningful, challenging and intellectually interesting.

     Allow me to begin with a few housekeeping matters: against the devastating backdrop of the ongoing global pandemic, I scarcely need to remind you all of the importance of mask-wearing, getting vaccinated and carefully complying with the social distancing rules. Notwithstanding the success of online teaching, which helped us limit the disruption to education during the initial phase of the pandemic, as professional educators we appreciate the fundamental importance of traditional interpersonal interactions and socialization to effective teaching and learning. We are therefore eager to resume face-to-face teaching as soon as possible. However, we are keenly aware of the risks, and to get to face-to-face teaching, your support and cooperation is going to be essential. Please look after yourselves and each other. Take care to religiously follow the social distancing requirements, including special seating arrangements for classes and lectures, hand-washing and wearing masks, bearing in mind that even those of you who are vaccinated are not invincible against what is, after all, one of the most formidable viruses the world has ever seen.

     As your journey of intellectual and personal growth at HKU begins, may I remind everybody and reiterate the importance of the University’s Civility Rules. The University has adopted these rules in line with United Nations standards to which I would like to draw your attention (https://www.hku.hk/f/upload/19914/Civility-on-Campus.pdf). Having touched upon the importance of the Rule of Law as one of our society’s core values, let me stress that another core value is diversity and inclusiveness. This is a quality that is needed more than ever in our deeply polarized society. Located at the heart of a truly global city, the University of Hong Kong is one of Asia’s most international universities. Students naturally come from all over the world, from many different countries and jurisdictions and speak a variety of different languages. You will meet friends and peers who have grown up in different cultural backgrounds and who hold a healthy variety of, among other things, diverse political opinions and religious beliefs.

     In the age of the European Enlightenment, the French political philosopher Voltaire once wisely wrote, "I may disagree with what you have to say, but I shall defend, to the death, your right to say it." However passionate your own views and beliefs may be, graciously and generously tolerating differing opinions, and respect for people who hold them, is one of the hallmarks of an enlightened society. As Aristotle said, “It is the mark of an educated mind to be able to entertain a thought without accepting it.” A motto of the university’s is “unity in diversity”; indeed our campus is an ideal place for you to learn from your fellow human beings in an apt demonstration of life’s wonderfully pluralistic nature. While engaging in impassioned, robust and frank debate on academic, social or political issues, please be open-minded and respectful of individual differences. It is our belief that by bringing together diverse views and characteristics, we create a dynamic, innovative and stimulating learning environment for all of you.

     Some students have raised concerns about the impact of the National Security Law (NSL) on teaching and learning. I would like to reiterate that academic freedom is an enumerated right in the Basic Law of the HKSAR. It is also a core value of HKU that has been tested from time to time, but which has always been safeguarded with rigor and persistence. In the new era of the NSL, the University and the Faculty are determined to uphold academic freedom while complying with the NSL.

     The Faculty reiterates and emphasizes the enormous value it places on the lawful exercise of academic freedom. We also insist on the significance of carrying out academic research and teaching and learning without fear. The Faculty will strive to uphold its institutional autonomy under the law and to create a free environment for intellectual inquiry and academic excellence.

     While complying with the relevant provisions in the NSL, the Faculty has not initiated any changes in its research, teaching and learning, and international collaborations. Subject only to quality assurance and legal requirements, academic staff are free to design the syllabus of the courses they teach, and no restrictions are being imposed on the content of teaching and classroom discussion.

      You are now a member of the HKU Law community. We teachers in the Faculty are the first port of call if you have any concern about the above-mentioned or other matters. Please feel free to reach out to your respective programme directors, Heads of the Departments or myself.

     Welcome to HKU Law again and I wish you a healthy and productive year!

Yours faithfully,

Fu Hualing

Dean, Faculty of Law

Warren Chan Professor of Human Rights and Responsibilities

Hualing Fu Comments on Ideological Purge Hitting China Universities with Western Ties (FT)

"Ideological purge hits China universities with western ties"
Emily Feng
Financial Times
25 April 2017

China is stepping up pressure on educational institutions, including many that run joint programmes with leading western universities, as President Xi Jinping’s ideologically infused anti-corruption campaign takes aim at the country’s intellectual establishment. 

     Teams of agents from the Communist party’s Central Commission for Discipline Inspection arrived on the campuses of China’s 29 top universities in the middle of March and will remain there to carry out inspections until the start of May. University presidents and senior administration staff have been told to remain on campus and cancel all travel plans, according to two people familiar with the situation...

     Political security is the predominant concern, and key sources of threat that have been identified are universities, lawyers and civil society groups. We know what has happened to lawyers and NGOs [non-governmental organisations]. Universities are a more recent target,” says Fu Hualing, a law professor at the University of Hong Kong... Click here to read the full article.

Johannes Chan and Douglas Kerr on Academic Freedom in Hong Kong (JAF)

"Academic Freedom, Political Interference, and Public Accountability: The Hong Kong Experience"

Johannes Chan and Douglas Kerr
Journal of Academic Freedom
Vol. 7, 21 pp

Abstract: In 2015, interference with academic freedom dominated public discourse in Hong Kong. This article provides an analysis of academic freedom in Hong Kong, addresses some systemic problems, and engages the debates between academic freedom and accountability of publicly funded institutions. It argues that the interference is not a one-off incident but forms part of a general trend toward a more restrictive regime of control over tertiary institutions in Hong Kong. Protection of academic freedom is of particular importance in such a restrictive political context. 

     From Giordano Bruno, who was burned for preaching the heresy that the Earth was not the center of the universe, to the many unknown scholars tortured for speaking the truth during China’s Cultural Revolution, history is filled with sad pages documenting the suppression of academic freedom. Academic freedom is vulnerable in that academics and academic institutions have little but their own conscience and integrity to rely on in defending it, and that defense is usually at great personal cost. The threat to academic freedom is powerful and disturbing, since when academic freedom is not tolerated, let alone respected, other fundamental freedoms are also likely in peril.  Click here to download the full article.

Johannes Chan on Academic Freedom, Keynote for Human Rights Press Awards 2015

Professor Johannes Chan was the keynote speaker for this year's Human Rights Press Awards.  He spoke at the Foreign Correspondents Club on 10 December 2015 on the topic of academic freedom.  His speech was widely reported in the local media.  See SCMP, HKEJ and HKFP.

Source: Foreign Correspondents Club Hong Kong

Tony Carty on the HKU Academic Freedom Issue (SCMP)

"What exactly does 'academic freedom' mean to Johannes Chan and his supporters?"

Tony Carty (Visiting Professor)
South China Morning Post
8 October 2015

It is widely thought that the decision by the University of Hong Kong council to reject Johannes Chan Man-mun's appointment as a pro-vice-chancellor is connected with the fact that he is "an internationally renowned legal scholar and administrator who champions the fundamental values of human rights and the rule of law". The failure to provide credible reasons for not appointing him is, therefore, a "litmus test for academic freedom", according to a Post article by Jerome A. Cohen and Alvin Cheung.

     These sentiments are echoed by Chan himself who says that a publicly funded institution, acting in a matter of general interest, should be transparent in its reasons for decisions. There is even talk of a judicial review to see whether the institution took into account irrelevant considerations in reaching its decision.

      Any influence of the Hong Kong government, which has six nominees on the council, will be widely assumed to be nothing more than a "diktat" from Beijing. So, it is easy to widen the Chan nomination dispute to include evidence of a failure of China's "trumpeted support for the rule of law", particularly in view of the "personal smear attacks" on Chan by the pro-Beijing press in Hong Kong (Cohen and Cheung again). Chan has counted 350 such attacks.

      So it may appear that Beijing is directly engaged in an attack on the academic autonomy of HKU, one more incident in a global struggle where the Chinese government is itself seen as incompatible with "the fundamental values of human rights and the rule of law". No wonder Chan is seen as a threat! To my knowledge, the content of these smears has not been addressed in English-language media in Hong Kong...

      If there was to be a judicial review of these smears, I would expect any judge to say that they are "fair comment". That is, they come within a margin where reasonable people could hold differing views.  While I was a member of the faculty, I invited many of my senior colleagues, including the present dean, to comment on these criticisms and received no answer...  Click here to view the full article.  A Chinese translation of the article is available here.

Yash Ghai's Statement on the HKU Council's Decision of 29 September 2015

I was shocked to learn that the Council of Hong Kong University has rejected Professor Johannes Chan's nomination as the University's Pro-Vice Chancellor. The reasons given by the Council are spurious and totally unbecoming the Council.

     I was Professor Chan's colleague for several years at the Faculty of Law at HKU. We are both public law teachers and collaborated on several research projects. He is also a distinguished lawyer who has participated in several leading cases on constitutional and administrative law.

      It is absurd to say that he is not qualified to "process" job applications because he does not have a PhD. Some of the world's leading law professors and scholars do not have a PhD degree. This is the case also at Hong Kong's own distinguished universities, including HKU and and Chinese University of Hong Kong. Certainly in my period at the HKU, the appointments boards usually had only a minority of members with PhDs. When I was law student, first at Oxford, and then Harvard for graduate studies, not one of my teachers had a PhD! Even my own study for the Ph D degree at Oxford was supervised by a professor who had merely a BA--and was acknowledged as one of the most distinguished British professors of public law.

      To say that Professor Chan has seldom published in academic journal or is seldom the "key author of the publication" is a deliberate attempt to vilify him. I collaborated with him in writing and editing two books, one on human rights in Hong Kong, following the adoption by the Legco of the Hong Kong Bill of Rights Ordinance, and the other on the decision of the Court of Final Appeal in the right of abode case, soon after the Basic Law came into force. Chan edited most of the chapters, co-authored one with me, and one on his own, in the first of these books. In the second book, he took responsibility for editing contributions in the Chinese language, and wrote a chapter himself. Both these books were well received and provoked considerable debate--as a good book should. Two years ago in a book that I edited with Professor Simon Young, on the first 13 years of the Court of Final Appeal and that of CJ Andrew Li, Chan contributed an excellent chapter on public law. He has published articles in well known law journals, in Hong Kong and abroad.

      To say that his achievement is "not even comparable to an assistant professor's", shows the spite and vindictiveness of the Council, and its determination to get rid of Chan at any cost--or trickery. In all my years at the HKU, I cannot remember the Council stooping so low.

     Professor Chan has also written about Hong Kong's law in popular journals and newspapers, to educate ordinary people and to stimulate debate--which is also the responsibility of a good law teacher and professor. His involvement with cases in the Hong Kong courts is also consistent with a scholar's contribution to the development of the law. Developing good working relations with the judiciary and the legal profession, which Chan has done with great success, is also often regarded as the responsibility of a law teacher. His contribution to the reform of law is well known, through litigation and research, contrary to the claim of the Council that his work has been of "low impact".

     It is also a grave misrepresentation to say, as a member of the Council is quoted as having said, that Chan was elected Dean of the Law Faculty because he was "considered a nice guy". He is undoubtedly a nice guy. But before he became the Dean, he was the head of the Law Department. All the students and teachers had ample opportunities to see his leadership at close quarters. It is because we were convinced of his outstanding abilities, in giving leadership qualities, fundraising, relations with the judiciary and the legal profession, and a vision of the Faculty as a leading centre of legal scholarship, that we elected him as Dean. All the expectations that we had of him have been fulfilled. But there is no doubt that his achievements were at the sacrifice of his scholarship.

      As a long serving member of the HKU and now an Emeritus Professor, it grieves me greatly to see the Council turn to these nasty tricks to deny Professor Chan, a distinguished scholar and administrator, the office of the Pro-Vice Chancellor, in order -- one must assume -- to appease the Chinese government. Soon after the resumption of sovereignty, the HKU and its Governing Council, stood up for Hong Kong's high standards of the rule of law and the rights and freedoms of its people (even to the extent of effectively dismissing a Vice-Chancellor for lack of integrity and taking orders from the Chief Executive, himself under orders from Beijing). I wonder whether the Governing Council realises the harm that is inflicting on the university whose independence they were appointed to safeguard. The blow to academic freedom at HKU will also have equally devastating impacts on other institutions of higher education in Hong Kong.  Written by Yash Ghai.

Academic Freedom and HKU (RTHK Radio Backchat)

"Academic Freedom"
Backchat, RTHK Radio 3
6 February 2015

Backchat guests discussed the recent attacks by pro-Beijing newspapers in Hong Kong on HKU's Faculty of Law and its former Dean. Are pro-Beijing forces trying to stop his advancement? If academics become involved in politics, should they face the consequences?  The panel consisted of Profs Michael Davis, Carole Petersen, William Richardson School of Law, University of Hawaii and formerly Director of the Centre for Comparative and Public Law, Surya Deva, School of Law, City University of Hong Kong and David Zweig, Director of Center on China's Transnational Relations, Division of Social Science, Hong Kong University of Science and Technology.  The hosts were Hugh Chiverton and Danny Gittings (PhD Candidate).  Click here to listen to the programme.