Hong Kong ranks ahead of the US and France for its rule of law, but will the Victor Mallet visa case affect its standing?

Wing Kay Po says Hong Kong has fared better than many jurisdictions in adhering to the rule of law. But the government’s unprecedented rejection of a journalist’s visa, following a thinly justified ban on a separatist party, does not bode well for the city

PUBLISHED : Tuesday, 09 October, 2018, 12:03pm
UPDATED : Tuesday, 09 October, 2018, 7:47pm

The Hong Kong government recently refused to renew the work visa of Financial Times journalist Victor Mallet. How does the government fare in this regard when compared with others?

Carl David Goette-Luciak is an Austrian-American reporter. Until last week, he was working in Nicaragua, covering the political upheaval and bloodshed that had arisen since April from the widespread opposition to the government of President Daniel Ortega. Last week, Goette-Luciak was arrested by law enforcement officials for allegedly attending illegal protests. He was then deported.

Just about a month earlier, a United Nations human rights mission sent to monitor the deteriorating political situation in Nicaragua was expelled after publishing a report that was critical of the pervasive repression.

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The expulsion of foreign journalists and researchers whose work displeases ruling governments is not uncommon. Other recent examples include: in May 2017, the Indonesian government deported two Swedish journalists, Vilhelm Stokstad and Axel Kronholm, after they covered a public protest in Jarkata; in the same month, Mauritania expelled two French citizens, human rights advocate Marie Foray and journalist Tiphaine Gosse, who had been researching slavery and racism in the country.

According to the World Justice Project’s latest Rule of Law Index, which gathers data and local feedback about the experience of law in 113 jurisdictions, Nicaragua ranks 99th for 2017-2018, and Indonesia, 63rd. Mauritania is not on the list.

Hong Kong ranks 16th. This is a rather strong affirmation of the institutions enforcing the rule of law in Hong Kong; we’re ahead of Western liberal democracies such as the Czech Republic (17th), France (18th) and the United States (19th).

Now, before we indulge in self-congratulation and, should we wish to do better, it is worth noting that openness of government and respect for fundamental rights, including freedoms of expression and association, are generally considered indispensable measures of the experience of law in a jurisdiction.

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Within the rubric of the right to freedom of expression, the World Justice Project considers factors including, quite naturally, the existence of an independent media, civil society organisations and political parties. The Council of Europe judges a state by criteria such as whether journalists are subjected to undue requirements before they can work, and whether they are refused entry or work visas because of potentially critical reports.

In the absence of any other plausible explanation for the Hong Kong government’s refusal to renew Mallet’s visa, the compelling inference to draw from this unprecedented decision is that he is being expelled for his earlier role in organising Andy Chan Ho-tin’s talk on behalf of the Foreign Correspondents’ Club.

Yet there has been no suggestion, nor could there be any, that the talk at the FCC – which was prior to the decision of the secretary for security to outlaw Chan’s Hong Kong National Party under the Societies Ordinance – was or could be illegal. It is more a case of: “We don’t really like you any more.”

In any event, there are serious doubts, to say the least, about whether the ban on the National Party is lawful and compatible with the basic rights of Hong Kong residents guaranteed under the Basic Law.

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According to the Siracusa Principles (where were issued by the UN Economic and Social Council and which have been accepted by Hong Kong courts as having at least persuasive authority), “National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force”.

The secretary for justice has not given any evidence of the National Party using force or carrying out a genuine threat of force, beyond citing the party’s claim that it would use all means to achieve its goal. If the ban itself is unlawful, it renders the eviction of Mallet doubly absurd.

Executive Councillor Bernard Chan is reported to have said that the Immigration Department need not explain its visa decisions. If Mallet were to lodge an objection to the decision under section 53 of the Immigration Ordinance, the Chief Executive in Council would consider the objection, confirm or vary the visa rejection. This would be time for her to give reasons for her decision, and she should.

Wing Kay Po is chairperson of the Committee for Constitutional Affairs and Human Rights at the Hong Kong Bar Association