Hong Kong’s Basic Law does not ban ideas, and universities are not for one-way learning

After pro-independence posters appeared at the Chinese University of Hong Kong last week, Joseph J.Y. Sung, acting in his capacity as Vice-Chancellor, sent an open letter to all students, staff and alumni of the university.

In this extraordinary – and therefore one must presume significant – letter that was sent whilst he was “attending an academic conference overseas,” he writes:

The idea of an independent Hong Kong is not only in breach of the Basic Law of Hong Kong but also contrary to what I personally believe. Hong Kong is an inalienable part of China; this is beyond dispute.

He then continues:

When discussing and debating political issues, our students should always do so peacefully and rationally, and conduct the discussion or debate in a respectful and patient manner.

 Our campus is a place for learning. It should not be turned into a political arena.

Let’s maintain the learning environment peaceful for our students.

There are several worrying points to be made on both the content of this letter, and in the reasons it was felt necessary to openly distribute what may be read as a statement on the university’s position on discussing the controversial issue of Hong Kong independence.

Thought crime

Firstly, the letters’ principle assertion, that the mere “idea” of an independent Hong Kong is a breach of the Basic Law, perpetuates a fallacy. Article 1 of the Basic Law states:

The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.

This does not impose a restriction on an idea. To suggest it does is to fundamentally challenge the notion of the law itself. Should it be illegal to consider an action deemed either illegal or outside of the context of the existing constitutional framework, laws would cease to evolve. Every time a law or regulation is amended, an idea that challenges the existing law is conceived and promoted.

No article of the Basic Law can or is provisioned to allow for thought crime. To suggest that it does is a serious violation of the HKSAR government’s commitments as a ratified member of the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the Universal Declaration on Human Rights, to which the HKSAR is legally bound, guarantees that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference.

Indeed, the protection of human rights is enshrined in the Basic Law and its Bill of Rights Ordinance (Cap.383), as are Hong Kong’s continuing commitments under the ICCPR. These commitments may be seen as the codification of many of Hong Kong’s core values. The People’s Republic of China has not ratified the ICCPR.

Therefore the suggestion that an idea is illegal almost certainly also constitutes a serious and clear breach of Articles 5, 11 and 27 of the Basic Law, that state respectively: (Art.5) The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years; (Art.11) [guarantee] the system for safeguarding the fundamental rights and freedoms of its residents; and (Art.27) Hong Kong residents shall have freedom of speech, of the press and of publication.

Beijing does have the right to further “interpret” existing articles within the Basic Law, as it has done in the past. In course legislation may be passed that would make the act of promoting independence illegal, but any such legislation would itself be highly controversial and potentially legally problematic. What can be said now is that no such legislation is currently in place.

Given the current standing of the laws, it is therefore all the more surprising that Professor Sung, an academic and university vice-chancellor of high standing both within the community and within the student body, would choose to be so forthright in his statement.

anti-independence posters cuhk

It is also somewhat hypocritical of Professor Sung to state so openly his own position (or belief) on what is by definition a political subject, whilst also accusing students of turning the campus into a political arena. The political, rather than legal, nature of the position is compounded by the fact that it also happens to be the exact position taken by pro-Beijing political factions. Indeed the following day Chief Executive Carrie Lam, in a carefully worded statement, weighed in on the debate by again deliberately attempting to blur the lines between the legal and political positions. She said:

“Hong Kong independence runs against ‘one country, two systems’ and the Basic Law, as well as the overall and long-term interest of society.”

“I condemn the continued appearance of such remarks on university campuses, which is in violation of our country’s sovereignty, territorial integrity and development interests.”

Both statements are on their own correct. However they do not logically follow. Note that Lam avoids categorically stating the illegality of entertaining ideas of independence — it merely “runs against” an agreed political system. Separatism by definition is a violation of sovereignty and territorial integrity. However, it does not make the idea itself illegal.

If Professor Sung and our government genuinely sought to calm down what was certainly a heated situation on campus, and a reflection of wider issues within Hong Kong, one would not have expected him to take sides so firmly, nor Carrie Lam issue such a suggestive statement. This is disappointing.

I do nevertheless applaud Professor Sung in particular for taking a no-nonsense stand in stating the obvious in regard to the behaviour of those students involved in the recent fracas. Their attitudes and actions have been unreasonable, irrational and disrespectful. However, it would have been an important addition if he had stated that both sides were equally culpable.

The scientific method

My greatest concern, though, is that Professor Sung seems to have momentarily forgotten the fundamentals of being an educator and scientist.

The basis of the scientific method is that the principles and procedures for the systematic pursuit of knowledge involve the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of hypotheses. By stating categorically that a position is beyond dispute, Professor Sung veers dangerously into dogma. What he has then done is categorically refuse to recognise that a position may be tested. Every position, no matter how established, must be open to challenge.

Likewise in academia, to critically challenge an idea is central to our learning – to understand a position, and in turn to test and further validate our own. This critical dialogue is why academic publications are peer reviewed.

Given his role at the university, Professor Sung must also be aware of the issue of “safe spaces” and “trigger warnings” that has been an issue of contention at some US universities. By declaring safe spaces, students have refused to be exposed to ideas that make them feel marginalised or demeaned. These positions relate to one’s personal identity, whether it be religious beliefs, ethnicity or sexual orientation.

This form of student action has rightly been criticised from both within and outside the academic establishment as a threat to very fundamentals of education. As then-US President Obama, in addressing the issue directly, said:

I don’t believe that when you become students at college you need to be protected from different points of view… that’s not the way we learn.

The purpose of college is not just to transmit skills, it is also to widen your horizons, to make you a better citizen, to help you to evaluate information.

Education is not schooling. Universities are not a place for one-way learning, to promote a correct perspective or to transit a known answer; it must go further, by encouraging us to understand, through questioning and testing; and to reflect on how we know what we know. We can neither be rational nor logical in a position if we are not permitted to question.

In the US, the challenge to academia comes from within the student body, and in particular what has been termed the Illiberal Left. What seems to be happening at our universities is a sustained challenge from an Illiberal and Leftist Establishment. What unites them both is that they demand one narrative to be accepted as universal. They are both fundamentally authoritarian in character.

Jonathan Haidt, the social psychologist who has studied the rise in what he terms as vindictive protectiveness, has found that the perceived need for such authoritarianism is associated with rising political polarisation. It is both symptomatic and feeds the divide.

A more sensible approach might have been to privately inform both sides – the student union leaders and the Mainland students whose intolerance of an opposing view has led them to take offence over an issue that, when considered objectively, is closer emotively to being a challenge to the identity of Hong Kong people. The letter might have focused more on what we might expect from all university students: an open mind, and a willingness to be exposed to a variety of differing positions, many of which may be opposing, some of which may be new, and all of which may be critically engaged.

(Original article posted on Hong Kong Free Press)

Respond to Hong Kong’s Basic Law does not ban ideas, and universities are not for one-way learning

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