Amid a fierce legal debate, student leader reignites HKU appointment saga
STUART LAU, JOYCE NG AND GARY CHEUNG
PUBLISHED : Sunday, 20 December, 2015, 1:48am
UPDATED : Sunday, 20 December, 2015, 11:40am
HKU student leader Billy Fung. Photo: Dickson Lee
As top legal figures debate whether Hong Kong’s judicial review system is being abused, the same process will be used this week to challenge in court the controversial rejection of a liberal scholar to a senior managerial post by the University of Hong Kong’s governing council.
Billy Fung Jing-en, president of HKU’s student union, told the Sunday Morning Post he would submit his application for a judicial review before December 29, which is three months after the council’s decision was made and the time limit for such legal challenges to be mounted.
Fung said he would ask the court to invalidate the council’s decision on September 29 not to appoint former law dean Professor Johannes Chan Man-mun to be HKU’s pro-vice-chancellor in charge of academic staffing and resources. The council’s 12-8 secret ballot was seen by critics as a politically motivated move to punish Chan for his support for colleague and Occupy Central founder Benny Tai Yiu-ting.
Although the university had decided to restart the recruitment process and Chan had indicated he would leave the matter at that, Fung said he would still go ahead.
“The council has to respect due process. Members have considered irrelevant factors in voting down Professor Chan,” the student said.
Such considerations include the claim that Chan’s appointment would “divide” HKU, and Chan’s failure to “show sympathy” to a council member who collapsed in another council meeting amid a student protest, as revealed by leaked recordings of council members’ remarks made in the September meeting.
The key legal arguments are also expected to be the lack of an explanation by the council over the “unprecedented” decision to oppose a search committee’s recommendation of Chan for the job, as well as the disregard for Chan’s right to respond to council members’ criticisms against him, according to a source familiar with the matter.
HKU said it had no comment on Fung’s plan as there were no details yet.
While Fung said he was not worried by the recent debate about whether judicial reviews had been abused, retired Court of Final Appeal judge Henry Litton, who sparked the debate, continued to criticise the courts for being accomplices to abuse of the legal system.
In an emailed comment to the Post, Litton cited the case of Kwok Cheuk-kin v The Chief Executive of the HKSAR last year, where the applicant asked the court to quash public consultation reports compiled by the government for reform of the chief executive election.
In that case, the judge convened a hearing before refusing to grant leave for the application.
Litton argued that the judge should have just dismissed the application without holding the hearing.
“ It seems from ... the judgment that counsel had sought from the judge general guidance on the way public consultations should be conducted,” Litton wrote. “It shows how far proper discipline has been leeched out of this branch of the practice of law.
“What possible guidance can judges give to the executive arm of government as to how the public should be consulted ? Has the courtroom become a senior common room, where gentlemen sit cosily round the table sipping port, leisurely discussing philosophy?”
Dennis Kwok, lawmaker for the legal sector, said Litton’s remark was “gross exaggeration”. The case concerning the election reform was a complex one and the judge was fully entitled by court rules to hear arguments from both sides, he said.
A senior lawyer who declined to be named said Litton’s criticisms were unfair to judges, because the court may hear the applicant’s arguments at his or her request before deciding whether to grant leave.
“Which option the judge adopts depends on what he considers in interests of justice. it’s not just one option as suggested by Litton,” the lawyer said.
http://m.scmp.com/news/hong-kong/education-community/article/1893467/johannes-chan-backers-hku-fight-use-abused
