Two weeks ago, the Court of Appeal dismissed the application of the Diocese for an appeal to the Court of Final Appeal on the case of the School-based Management legal requirements. From the news report below, the Diocese intended to apply directly to the Court of Final Appeal. Each time such news hit the headline, it gives a very bad impression on the Diocese that she is trying to rule her schools by autocracy, which goes against the belief of democracy or simply transparency in school management. I discussed this topic earlier in February in a blog article. The latest development led me to think that the Diocese must be facing a very big problem in the new legal requirement or there is a very serious underlying conspiracy. I therefore read again carefully the detailed judgment delivered by the Court of Appeal on the reasons advanced by the Diocese and why the court did not accept them.
The judgment gave a very clear description of the present system and the new system. In essence, it stated the objective and purpose of the Diocesan schools. In paragraph 20, it said “The regime thus established was designed to ensure unity of the Diocese in the promulgation of Catholic values in schools and it is this unity which is said effectively to be undermined by the 2004 legislation.” It means these schools are not just for education. They are for the promulgation of Catholic values. For the Diocese, it is perceived that this function cannot be ensured if the 2004 legislation is enforced and the school is governed by an incorporated management committee IMC.
The Diocese brought out seven perceived material changes to the manner in which it was previously able to operate schools. They were categorically refuted by the government. The refutation was endorsed by the court. According to paragraph 43, the perceived changes and the refutation are:
(1) The obligatory submission of constitutions and the incorporation of management bodies
There has always been a statutory power for the government to call for the submission of a written constitution for the management committee. The absolute autonomy suggested by the applicant as previously enjoyed by it is, according to the respondent, an illusion, for the applicant has always been subject to the provisions of legislation and supervision of the government.
(2) The reduction of representation in management bodies
By reason of its 60% membership majority, the applicant retains effective control over the IMC. The applicant argues for absolute control, an objective that is at odds with greater transparency and accountability, features that are reasonably required for schools that are publicly funded.
(3) Diminution in the scope of the applicant’s functions.
This complaint ignores the requirement upon the IMC to act in accordance with the sponsoring body’s vision and mission; and the 60% sponsoring body representation upon the IMC.
(4) Loss of the guarantee of priority.
This complaint is an exaggeration: the ‘guarantee’ was not a question of priority on all matters of management. The provision did not guarantee that a school management committee would stay true to the vision and mission of the sponsoring body; and the sponsoring body now has a 60% controlling representation on the IMC.
(5) Changes concerning the supervisor.
Since the sponsoring body is responsible for drafting the IMC constitution and since the supervisor must be appointed by the sponsoring body or elected by the managers of the school in accordance with the constitution, it is open to the applicant to draft a constitution accordingly. As for functions, the management committee is under the effective control of the sponsoring body and there is power in the Ordinance to delegate responsibilities to the supervisor.
(6) Changes concerning the principal.
Since the composition of the principal selection committee is determined by the constitution which in turn is drafted by the applicant, the point is without substance.
(7) Changes in the selection of teachers.
The selection of teachers remains under the control of the applicant through its majority control of the IMC and through the requirement that the IMC must act in accordance with the vision and mission set by the applicant.
Notwithstanding the point-by-point rebut, the Diocese is still not satisfied with her own power in controlling schools. It reflects a great sense of insecurity. Is the Catholic value in school governance just castle in the sand? Is it so fragile that a very small minority in the management committee with different views would undermine it? From the perceived material changes, although they might just be fabricated for the case, there will be crises in submitting a constitution, losing absolute control of the management committee, losing guarantee of priority in management, and facing difficulties in appointing supervisor, principal and teachers.
As I see it, all these will not stop the school from preaching. We can only guess, but the Diocese knows best. May be all these will eventually undermine the Catholic value in school. What if the government mandates that religion should not be included in the constitution? What if a father/sister on the committee suddenly finds conscience and joins hand with the other 40%? What if non-Catholic supervisors, principals and teachers are appointed? Could this be the end of a Catholic school? I hope not. 40 years after graduation, I am still connected with my alma mater with many of these changes implemented but still basically Catholic.
(明報)2010年6月4日 星期五 17:30
【明報專訊】天主教香港教區為確保辦學自主權，就《校本條例》提出司法覆核敗訴，上訴遭駁回，再向法院提出上訴至終審法院，但昨日上訴庭拒絕發出上訴許 可，代表教區的大律師表示不排除再向終審法院直接申請上訴。上訴庭副庭長司徒敬與另外兩名法官商議後表示，今年2月頒發的判 辭，已清楚列明教區敗訴原因，他下令教區需向政府支付昨日的訟費。
天主教香港教區主教湯漢昨日回應上訴申請被拒時說，教區尊重法庭決定，並會諮詢律師意見，再決定是否向終審法院提出最終上訴。資深大律師李柱銘昨代表天主 教教區，向上訴庭提出申請，要求將《校本條例》是否違反《基本法》第136、137及141條中，指宗教組織可按原有辦法繼續興辦院校等條文，移交終審法 院定奪。李柱銘指出，原訟庭及上訴庭雖然兩度判教區敗訴，但原因不一致，故有必要向終審法院尋求最終解釋。他又指《校本條例》從未交上終審法院審理，該議 題有廣泛 社會重要性，理應獲批申請上訴。