HRIC’s submission to the United Nations Committee on Economic, Social and Cultural Rights regarding academic freedom in Hong Kong

HONG KONG:
CIVIL SOCIETY SUBMISSION
TO THE UNITED NATIONS COMMITTEE ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS

68th SESSION, 8 March 2021 – 12 MARCH 2021, PRE-SESSIONAL
WORKING GROUP, LIST OF ISSUES PRIOR TO REVIEW

Submitted by Human Rights in China

December 18, 2020

I. Introduction: Severe rights deterioration in domestic rights environment

Note: All emphases in quoted passages have been added.

1. Human Rights in China (HRIC) makes this submission to the Committee on Economic, Social and Cultural Rights (CESCR) in advance of the adoption of the List of Issues Prior to Review (LOIPR) for China,[1] including the Hong Kong SAR.[2] Framed within an overview of the current domestic rights environment, HRIC’s submission describes overarching challenges to the right to education and academic freedom and highlights specific concerns regarding the effective implementation of the Covenant (ICESCR, art. 13) [3] and academic freedom (Committee’s General Comment No. 13: The Right to Education)[4]. HRIC also provides suggestions for the Committee’s consideration in its adoption of the List of Issues Prior to Review (LOIPR) for Central People’s Government (CPG) and HKSAR government.
    
2. In its Concluding Observations on the second periodic report of China of June 13, 2014, the Committee recommended that the HKSAR government: ensure all children have free access to education[5]; eliminate de facto discrimination against children of migrants and ethnic minorities and non-Chinese speaking students;[6] as well as incorporate ICESCR provisions in domestic legislation.[7] In its fourth periodic report of December 19, 2019, the HKSAR government asserts that its existing legislation and policies are sufficient to implement its obligations under the International Covenant on Economic, Social, and Cultural Rights (ICESCR).[8]
    
3. However, since the submission of the 2019 state party reports, key developments give rise to expanded and new challenges to the effective implementation of the ICESCR, in particular: the ongoing COVID-19 pandemic and the imposition by the CPG of the sweeping Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law or NSL).[9] The Committee has specifically addressed the wide-ranging effects of COVID-19 on the enjoyment of a broad range of economic, social, and cultural rights.[10] Since July 2020, and often invoking the necessity of COVID-19 health measures to restrict public assemblies, the CPG and HKSAR governments have severely restricted the peaceful exercise of fundamental rights and freedoms and undermined institutional safeguards, including an independent judiciary and media.[11]
    
4. The National Security Law and its implementation drew and continue to generate wide international concern, including statements issued by the UN High Commissioner for Human Rights[12] and UN special procedures[13] regarding impact on Hong Kong’s autonomy, rule of law, and the protection of fundamental rights and freedoms.[14] The NSL prohibits acts of secession, subversion, terrorism, and collusion with foreign forces and creates a set of new implementing entities, all effectively under the control of the CPG. Despite the risks of criminal and political prosecution, civil society voices have also raised concerns about the increasing encroachment on their peaceful exercise of rights and Hong Kong’s core values.[15]
    
5. However, the National Security Law may also provide an opening to promote progress. In its Concluding Observations on the second periodic report of China of June 13, 2014, the Committee recommended that “Hong Kong, China, take all appropriate measures to incorporate the provisions of the Covenant in domestic legislation and . . . guarantee their direct applicability by the domestic courts.”[16]  Despite the HKSAR government’s response in its fourth periodic report, the National Security Law has arguably incorporated the provisions of the Covenant into domestic legislation applicable to Hong Kong. Both the International Covenant on Civil and Political Rights (ICCPR) and ICESCR are specifically incorporated in the National Security Law.[17] Article 4 states:

In safeguarding national security, the Hong Kong Special Administrative Region shall respect and guarantee human rights, the rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.[18]

6. The National Security Law was unanimously passed by the Standing Committee of the National People’s Congress (NPCSC) on June 30, 2020, and added to Annex III of the Basic Law, Hong Kong’s Constitution, which contains a list of national laws relating to defense and foreign affairs that are applicable to Hong Kong.[19] 

II. Concerns regarding implementation of the right to education and undermining of academic freedom

7. The Preamble to the Covenant underscores that human rights and freedoms rights derive from the inherent dignity of the human person and that, in accordance with the Universal Declaration of Human Rights, “the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” Article 13(1) provides that States Parties agree that “education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society . . . .”
    
8. With the aim of inculcating correct thinking and ideological loyalty to the Communist Party of China (CPC),[20] the spread of the ideologically-driven model of education in mainland China to Hong Kong[21]   presents a fundamental challenge to the values set forth in the Preamble and the rights protected in the Covenant. The rights-related impacts of the imposition of this model reaches the whole education ecosystem with far reaching implications for society and future generations. Ongoing trends and developments include: curriculum reforms, including renewed efforts to introduce patriotic education[22]; reform of Liberal Studies (LS), a core subject for the upper secondary school (forms 4-6); the censorship of an increasingly wide range of topics, content, and books; and the firing, dismissals, or failure to renew contracts for teachers.

Revamping of a high school core subject—Liberal Studies—to remove any “sensitive” contents

9. In fall 2020, the Hong Kong government announced the revamping of Liberal Studies (LS), a core subject for the upper secondary school (forms 4-6) first introduced in 2009—to broaden students’ knowledge base and produce independent, critical thinkers.[23] The aim of Liberal Studies was stated clearly by Hong Kong’s educational authorities, including the Education Bureau:

It aims to broaden the students’ knowledge base and enhance their social awareness. It adopts an issue-enquiry approach, which helps liberate the minds of students by having them study a wide range of issues and encouraging them to find out information themselves and develop their own opinions. It helps students understand complex issues in contemporary society, in the nation and in the world. Students are encouraged to draw knowledge from different disciplines in the analysis of the issues, and to develop their own views, construct personal knowledge, and become critical thinkers.[24]

10. As the anti-extradition protests progressed in 2019, Liberal Studies came under increasing criticism chiefly by pro-Beijing politicians, and a sharp public debate ensued, with Hong Kong SAR Chief Executive Carrie Lam blaming the subject for fueling student activism.[25] In September 2019, the Secretary for Education, Kevin Yeung, initiated what it called “professional consultancy service” and invited LS publishers to submit their LS textbooks for review and vetting. Six major publishers of LS textbooks entered the voluntary process. The revisions, reported in the press in August 2020, included the deletion from at least two textbooks of the phrases “separation of power,”[26] contents on human rights, policing abuses, rule of law, press freedom, and civil disobedience,[27] the names of political groups advocating self-determination and/or independence,[28] a description of Chinese troops clearing Tiananmen Square of protesters in the June Fourth crackdown on the 1989 Democracy Movement, as well as an illustration of the famous scene of the “Tank Man” standing before a column of tanks during the crackdown.[29]
     
11. While progressive education groups group called the amendments “political censorship,” the Education Bureau defended it as a move to “help students develop values.” In September 2020, a government task force issued its report on a three-year review of school curriculum. Among its recommendations was that current issues not be included in Liberal Studies lessons given the complexity of controversial issues and maturity of secondary students. The report stated:

Newly emerging current issues that are still developing are not suitable for enquiry because when events are still developing, it is difficult for teachers and students to conclude without the benefit of hindsight or verify the objectivity and reliability of the data and information gathered, and to engage in impartial and evidence-based discussions. More often than not, it is hard to make rational judgements on very controversial issues without a solid understanding of the problems from multiple perspectives and an appreciation of the complexities of different considerations behind, all of which go beyond the maturity of secondary students as minors.[30]

12. In her policy address on November 25, 2020, Chief Executive Carrie Lam continued her attack, blaming Liberal Studies as a vehicle for “the infiltration of politics into school campuses,” causing students to be “drawn into political turbulence.”[31] The following day, on November 26, Education Secretary Kevin Yeung announced sweeping changes in the Liberal Studies curriculum[32] that would essentially de-emphasize critical thinking and weaken the incentive to learn. The changes include: reducing materials on current affairs; renaming the subject; changing the 1-5 grading system to pass/fail; requiring all textbooks to be vetted by the government; requiring students to make mandatory visits to mainland China; and increasing contents about mainland China.
     
13. Lam offered her rationale for reducing current affairs contents:

But critical thinking has now become a kind of debating exercise about current affairs, for which the students are easily influenced by some specific social opinion . . . . Critical thinking under the curriculum has deviated into objecting against everything about the Basic Law and the government. I don’t think this is critical thinking. For achieving critical thinking, students should discern the facts first, such as, Hong Kong is an inseparable part of China.”[33]

14. Yeung, echoed Lam and laid down a clear red line:

We don’t think [teachers] should talk about something which has just happened, simply showing students newspaper clippings and having them discuss the issue. In terms of information gathering and to know the whole truth about the event and its development, it is difficult for pupils to come up with a [holistic] analysis”; and “‌under the ‘one country, two systems’ framework, it is impossible for us to allow discussions in classrooms on Hong Kong independence.[34]

15. The reform and remarks drew fire from progressive forces in education. On December 9, 2020, the Professional Teachers’ Union released a survey that showed more than 90 percent of the 500 Hong Kong teachers polled believe that Liberal Studies “reform” was politically motivated.[35]
     
16. The reform of Liberal Studies to reduce its current affairs contents, along with the comments by the Chief Executive and the Education Secretary about the inappropriateness of those contents, run counter to the subject’s aim of encouraging independent, critical thinking among students. Censorship of information and debate undermines the core principle of the right to education, as enshrined in Article 13 of the ICESCR:  that education be directed to the full development of the human personality and strengthen respect for fundamental rights and freedoms and enable all persons to participate effectively in a free society. Enforced ideological control will dangerously weaken the capacity of young people and future generations to develop the critical capacities, skills, and diverse perspectives necessary for informed and responsible participation in society,

Censorship and disciplining of educators

17. The Committee has elaborated that education “is both a human right in itself and an indispensable means of realizing other human rights”; and that “the right to education can only be enjoyed if accompanied by the academic freedom of staff and students.”[36] Yet this right has been undermined by the authorities’ prohibition of diverse forms of peaceful expression, including group protest actions, within and outside the schools.[37]
     
18. On July 8, just days following the implementation of the NSL, Education Secretary Kevin Yeung stated that students “should not participate in class boycotts, or take part in activities such as chanting slogans, forming human chains, and posting slogans or singing songs which contain political messages at schools for expressing political stance” and that “schools are obliged to stop” these acts. Yeung further stressed, “[u]nder no circumstances should students or other persons be incited to indicate their stance on controversial and evolving political issues” and that “[o]ne of the goals of education, he asserted, is “cultivating their positive values.”[38]
     
19. The firing of a university professor for his political activism. On July 28, 2020, Benny Tai Yiu Ting, associate professor of law at the University of Hong Kong (HKU) was fired by the university’s governing council.[39] Tai was one of the key planners of 2014 Occupy Central Movement (later more generally known as the Umbrella Movement), a pro-democracy civil disobedience protest that lasted for 79 days. Tai was convicted of two public nuisance offences in August 2020 in connection with his role in the Occupy Movement but was granted bail pending appeal. The HKU governing council’s decision went against the ruling by the university senate [40] that Tai’s actions amounted to “misconduct” but did not constitute grounds for dismissal.[41] Tai believes the move was directed by the authorities other than those at the university.[42]
     
20. The contract termination of a university lecturer because of his political activism. On July 27, 2020, a day before the firing of Benny Tai, Shiu Ka-chun, a lecturer of social work at the Baptist University of Hong Kong, was told that his contract would not be renewed at expiration at the end of August. The university provided no reason for the termination.[43] Shiu is a former lawmaker who served nearly six months in prison for two public nuisance charges in connection with the 2014 Umbrella Movement. He was suspended from teaching in January 2020 but was allowed to continue working in the social work department.[44]
     
21. The deregistration of a primary school teacher for including freedom of speech and Hong Kong independence and in class work.[45] On October 5, 2020, the Education Bureau (EDB) permanently revoked the license of a teacher at the Alliance Primary School, a private school, for “spreading the idea of Hong Kong independence” in violation of the Basic Law.[46]  In a life education class—a subject that included topics on current affairs, including Islamic State in the Middle East[47]—that took place in March 2019, the teacher had shown a documentary featuring pro-independence activist Andy Chan Ho-tin and had students filled out an in-class worksheet containing questions such as “What is freedom of speech?” and “What is the reason for advocating Hong Kong independence?”[48] The deregistration decision went against an internal investigation at the school ordered by the EDB that had concluded that no staff were promoting the idea of Hong Kong independence. The principal, vice-principal, and three other teachers at the school were reprimanded and warned over lax supervision and using materials.  (The deregistration met with strong disagreement among educators.[49])
     
22. The disciplining of these educators because of their political activism or exercise of a fundamental right—the rights to freedom of thought and speech raise concerns regarding the inappropriate infringement on these rights as well as the adverse impact on the quality of education provided to students. The Committee has clearly stated that

Members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction. . . .”[50] 

Self-censorship and chilling of academic freedom

23. Numerous news reports since the implementation of the National Security Law have portrayed fear and anxiety among Hong Kong’s academic community about what can be discussed and taught. They also reveal widespread and deepening self-censorship throughout the community—among school authorities, teachers, and students alike. Specific examples from diverse disciplines including law, medicine, political philosophy, and the humanities include:
     
    • Responding to the National Security Law’s overbroad provisions on terrorism related offences, a leading legal scholar and dean of the law faculty of the University of Hong Kong, warned of self-censorship among professors, researchers, and students. (NSL, art. 27 states “A person who advocates terrorism or incites the commission of a terrorist activity shall be guilty of an offence.”) He asked: “To what extent can one talk about the morality of violence and terrorism in an academic sense?”[51]
    • As part of a lesson plan for a class about doctors’ responsibilities in society, a professor of medical humanities had included photographs depicting volunteer medics treating protestors and police but finally decided to remove them out of fear of stepping out of line.[52]
    • A professor of political philosophy told a reporter in November 2020 that he feared that conversations in a class that he had taught in previous years that explored the feasibility of secession, drawing on Quebec or Scotland, might now be forbidden.[53]
    • In July, the program director of the humanities and law faculty of a secondary school cautioned teachers in an email: “Remain neutral in your teaching and be mindful of the language you use . . . . Any behavior in eliciting further discussion on sensitive issues MUST be avoided.”[54]
       

24. These examples underscore how self-censorship strangles free speech, impedes the exercise of academic freedom, and degrades the quality of education.

III. HRIC’s suggestions for the Committee’s consideration and adoption

25. To effectively ensure that the implementation of the NSL does not impermissibly restrict or undermine rights protected under HKSAR, national, and international law, international human rights standards and norms must serve as the foundation for monitoring, assessing impact, developing effective safeguards, informing needed legislative reforms, and ensuring a safe and enabling environment for civil society. The ICESCR is now integrated into domestic law. In light of the ongoing serious restrictions on civic space and on the peaceful exercise of rights in Hong Kong, the Committee’s review offers an important opportunity to press the authorities on complying with their international obligations and taking concrete actions to effectively implement the Covenant.[55]
     
26. HRIC respectfully urges the Committee to consider the following issues and questions to advance to the Hong Kong SAR government:

On integration and implementation of ICESCR

• Please provide clarification and confirmation whether the incorporation of the ICCPR and ICESCR in Article 4 of the National Security law, a national law passed by the Standing Committee of the National People’s Congress, means that the ICCPR is also now incorporated in mainland law in addition to the incorporation of ICESCR provisions in domestic law in the Hong Kong SAR.
• Please provide information on concrete measures taken or planned to guarantee the direct applicability of ICESCR provisions by the domestic courts. Please include examples of cases in which ICESCR provisions have been cited by parties and in judicial decisions.
• Please provide information regarding concrete measures and safeguards taken to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind, including political or other opinion, as specified in Article 2(2) of the ICESCR.
• In cases where discrimination has occurred, including retaliation, dismissal, deregistration from an employment position based upon political opinions or views, please provide information on legal, administrative, and other remedies afforded the affected person.

On the ICESCR-related impacts of implementation of the National Security Law

• Please provide information regarding any concrete steps or plans being taken to address rights concerns and recommendations related to the implementation to-date of the National Security Law, including recommendations by UN experts to review and reconsider the Law.

On curriculum reforms, including the Liberal Studies subject

• Please provide information on criteria and processes that provide  guidance to schools, universities, and other education institutions to ensure that the identification, assessment, and removal/restriction of content are in compliance with the international standards and obligations of the CPG and HKSAR government. Please include specific information on the transparency and accessibility of these criteria and processes, including consultations with education experts, teachers, parents, students, and other stakeholders.

On academic freedom and self-censorship

• Please provide concrete information—or specific guidelines on and decision-making process for—what constitutes “sensitive” topics that are prohibited from discussion in an academic context? What factors are considered? Who are the decisionmakers and at what level of an educational institution? Are there any provisions for time limits or reconsideration and review of topics banned as “sensitive”?
• Please provide information on specific measures or step taken or planned to ensure that the right to work for teachers, administrators, and other workers in education institutions is exercised under “conditions safeguarding fundamental political and economic freedoms to the individual,” as specified in Article 6(2) of the ICESCR.