28 October 2016
Was it right for Billy Fung (left) to shed light on the grounds for the HKU council's decision on the pro vice chancellor appointment? Photo: HKEJ
Was it right for Billy Fung (left) to shed light on the grounds for the HKU council's decision on the pro vice chancellor appointment? Photo: HKEJ

Why public right to know transcends HKU council confidentiality

Last week, the University of Hong Kong council finally vetoed the appointment of Professor Johannes Chan Man-mun as a pro vice chancellor without giving any explanation to the public.

The decision prompted a strong public outcry against the council’s confidentiality system, under which members are not allowed to disclose any details about the discussions during the council’s official meetings.

The public would probably have been kept in the dark forever about the council’s grounds for rejecting Professor Chan’s appointment had it not been for Billy Fung Jing-en, chairman of the HKU students’ union, who is a member of the council.

Fung called a news conference shortly afterward to make public the details of the discussion and the views expressed by other members during the meeting.

While some considered Fung’s decision to speak up a courageous move, other slammed him for breaching the long-established confidentiality rule that has governed the HKU council for decades.

That begs the question: how do we strike a balance between the confidentiality system in public institutions and the public’s right to know?

Should the principles of confidentiality still apply when the decisions made by these institutions involve huge public interest?

Perhaps certain overseas examples can offer us some insight into this fundamental issue.

In the landmark Australian lawsuit The Commonwealth of Australia v. John Fairfax & Sons Ltd. in 1980, the Australian government tried to file an injunction to prohibit local media from publishing highly classified information about Canberra’s secret involvement in Indonesia’s annexation of East Timor in 1975.

However, then chief justice Anthony Mason, who is now a non-permanent judge of Hong Kong’s Court of Final Appeal, ruled that the public’s right to know should override the government principle of confidentiality when it came to critical issues that involved huge public interest.

Mason said that in any democratic society, any attempt to restrict the disclosure of official information that could facilitate social discussion as well as review of public policies and enhance public oversight of the government was completely unacceptable.

The Australian court gave a very insightful and authoritative ruling on where to draw the line between the public’s right to know and the principle of confidentiality and set a benchmark for courts making decisions in similar cases in other common law regions, including our city.

According to the guidelines issued by the HKU, members of the council should always make their decisions and cast their votes in accordance with seven major principles, which include “selflessness”, “integrity”, “objectivity”, ”accountability”, “openness”, “honesty” and “leadership”.

In short, council members must not be swayed by external influence or succumb to political pressure when it comes to important decision-making such as the appointment of key personnel, and a person’s ability and academic achievements should be the only criteria for deciding whether he or she is qualified for a particular position.

More importantly, council members should explain to the public why and how their decisions have been made whenever possible, unless highly sensitive personal and commercial information is involved, under which circumstances members should then exercise their own discretion over whether to make the information public.

In conclusion, both the HKU council and its members are under an obligation to let the public know their grounds for making any particular decision that is either the focus of public attention or involves huge public interest, and the principle of confidentiality should never be used as an excuse to deny public access to information.

This article appeared in the Hong Kong Economic Journal on Oct. 06.

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party

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