STIRRING UP TROUBLE: THE JOHANNES CHAN INCIDENT, IDEOLOGICAL EXCLUSION AND IMMIGRATION LAW IN HONG KONG AND MACAU

By Thomas E. Kellogg
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On February 28, 2009, Johannes Chan, dean of the law faculty at Hong Kong University and a prominent scholar of constitutional, human rights and administrative law, set off on the ferry for Macau. He was scheduled to speak at the University of Macau on the generally uncontroversial but vitally important topic of the right to a fair trial. His busy schedule didn’t allow him to stay for dinner, but he was willing to make the hour-long journey from Hong Kong for the presentation.

But there was unpleasant surprise waiting as he stepped off the pier and made his way to the Macau Immigration checkpoint. After presenting his Hong Kong identity card, Professor Chan was told that he would not be allowed into Macau and must return on the next ferry. “They told me that I cannot enter Macau according to the internal security law of Macau and that they will send me back,” he said in a later interview.1 He told reporters that he believed the denial was due to his participation in the Article 23 Concern Group, formed in 2002 in response to perceived shortcomings in the SAR government’s proposals for national security legislation in Hong Kong. (Article 23 legislation refers to the Hong Kong and Macau Basic Law provisions that require both Special Administrative Regions to pass new national security laws as part of the change to mainland sovereignty.)

In some ways, the Macau government’s decision to bar Johannes Chan was difficult to understand. As a former chair of the Hong Kong Bar Association and a prolific commentator on human rights and democratization in Hong Kong, he is a leading figure in legal circles in Hong Kong and beyond. Barring him was a major embarrassment for both the Macau government and the university which had invited him.

Yet Professor Chan was not the first Hong Kong resident denied entry into Macau on apparent political grounds. Several other advocates, legislators, and activists had been kept out in previous months; for example, a group of more than 20 pan-democratic legislators and others, all traveling to observe demonstrations against Article 23 legislation in Macau, were barred in December, 2008. That group included prominent Democratic Party politicians Albert Ho, Emily Lau and Lee Wing-tat, as well as Civic Party legislators Audrey Eu, Cyd Ho and Alan Leong.2

Professor Chan’s exclusion came just days after the passage of Article 23 national security legislation in Macau. That led to speculation that his case was linked to the new law, though Macau authorities denied any such connection.

Stanley Ho Is Indelicate

Prior exclusions had drawn protests and some media attention, but didn’t generate any real response from Macau or Hong Kong authorities. But with the barring of Professor Chan, the Macau government seemed to have crossed a line. Given his impeccable establishment credentials and the fact that he had traveled for an academic talk, the Macau government was hard-pressed to justify its decision. Its attempts were not helped by the indelicate comments of Macau casino mogul Stanley Ho, who used a Cantonese obscenity in reference to those who had been excluded. “These people are all troublemakers,” Ho told reporters at a meeting of the Chinese People’s Political Consultative Congress in Beijing in March. “They have stirred up (expletive) in Macau before and there is evidence…. How can we let them in?”3

But the action was met with near-universal condemnation in Hong Kong political circles. Pro-Beijing legislators joined their democratic colleagues in calling for Chief Executive Donald Tsang to raise the issue with Macau. During a Legco session convened to discuss the issue, legislator Regina Ip was openly dismissive of the Macau government’s actions. “This is a question of human rights,” she said. “The Macau authorities are tightening our freedom.”4

To its credit, the SAR government did act. On March 5, Donald Tsang, in Beijing for annual consultations, raised the issue with his counterpart, Macau SAR Chief Executive Edmund Ho. However, Ho told reporters that he was unaware of the specifics of the controversy and stuck to bland statements about adherence to local laws and procedures. His response may have left some observers questioning whether Tsang’s intervention had any real impact.

It was up to pan-democrats who had been barred earlier to put the matter to the test. On March 15, a group of more than 30 political activists and 15 pan-democratic legislators boarded the ferry to Macau. Most were admitted, but five, including controversial lawmakers Leung Kwok-hung (also known as Long Hair) and Lee Cheuk-yan, were denied entry.

The continuing blacklisting of Leung and Lee, who called the ban “political discrimination,” was regrettable. Yet the entry of most of the group, including many who had been turned away previously, was a step forward. This shift by the Macau government was a testament to the diligence of civil society activists and pan-democratic legislators who kept the issue alive over a period of several months. The Hong Kong press also did its part to ensure that the matter remained in the public eye, and not easily brushed aside by either Tsang or Ho. Had not Hong Kong activists, legislators and journalists kept the issue alive, the injustice would not have been remedied.

State Sovereignty and “Ideological Exclusion”

It is important to note that the issue was not resolved in court or by legislative action, but by the diplomatic intervention of Chief Executive Tsang. In other words, Macau eased its entry restrictions for some politically active Hong Kong residents, but could revert to its prior policy at any time. As yet, no legal barriers have been erected to prevent the political use of immigration law by Macau.

Most analyses of right of entry cases highlight the high degree of discretion that governments have in granting or refusing entry to those seeking to enter their territory. The U.S. government, perhaps with an eye on its own immigration policies, emphasized state autonomy in its own comments on the matter. “While such decisions are within the scope of authority of all governments, we view any attempt to restrict the free flow of information and exchange of ideas with concern,” said Dale Kreiser, a spokesman for the U.S. Consulate in Hong Kong.5

It is true that there is no absolute right of entry into a jurisdiction under international law.6 One standard treatise refers to the “received maxim of International law, that the government of a state may prohibit the entrance of strangers into the country.”7 While this international norm has been challenged by some scholars,8 it remains virtually universal state practice.

The authority of the Macau government is therefore central yet is not without limits. First and foremost, Macau is obliged to follow its own laws and regulations. In the absence of any statement from Macau authorities as to the legal basis and reasons for denying entry for those who were blocked, it is difficult to discern whether or not Macau has adhered to its own laws. If denials were issued on national security grounds, then serious concerns arise about its possible misuse of national security law.

If it used national security to justify politically-motivated actions, the Macau government is not alone. The United States, to cite but one example, has a long history of using immigration law to exclude individuals for expressing ideas considered objectionable. Under the so-called ideological exclusion provisions of the 1952 McCarran-Walter Act, the U.S. government was empowered to bar the entry of would-be foreign visitors on the basis of their political beliefs, affiliations or speech.9

Over the nearly four decades of the Act’s life, the U.S. government excluded several literary and cultural luminaries, including Chilean poet and Nobel laureate Pablo Neruda, Colombian novelist and Nobel laureate Gabriel Garcia Marquez and Palestinian poet Mahmoud Darwish.10 Others deemed excludable under the McCarran-Walter Act’s provisions included British novelists Graham Greene and Doris Lessing, Mexican novelist and Nobelist Carlos Fuentes and Japanese novelist and playwright Kobo Abe.11

Actions and Beliefs Are Not the Same

U.S. government use of the McCarran Act became even more controversial and heavily politicized under the Reagan administration in the 1980s. Many alleged that the Reagan White House looked to exclude not only those with ties to socialism but also its harshest critics, particularly in the areas of U.S. Latin America policy and U.S. nuclear weapons policy.12 When the U.S. Congress revised American immigration law in 1990, the ideological exclusion provisions were more or less eliminated, and grounds for exclusion shifted from the individual’s beliefs to the likelihood that he would commit certain acts while in the United States, including espionage, sabotage or other unlawful activity.13

Perhaps inevitably, concerns over ideological exclusion by the U.S. government have re-emerged since September 11, 2001. After the September 11 attacks, American immigration policies were significantly tightened14 and obtaining visas become much more difficult for foreign scholars and students. While most denials were seen as apolitical, a few prominent cases raised concerns that the U.S. government was seeking to exclude some individuals because of their views.15

When viewed in light of the American experience, the actions of the Macau SAR government become much more problematic. It seems clear that the Macau government was engaged in a broad-based practice of keeping out those whose political views it disfavored; it has yet to provide any meaningful evidence that Professor Chan or the barred Hong Kong legislators and activists posed a security threat

Given the timing of the incidents of refusal of entry – before, during and in the immediate aftermath of the passage of Article 23 legislation in Macau – some observers in Hong Kong have speculated that the Macau government had a further political motive: specifically, looking to exclude those who might peacefully persuade Macau residents that national security legislation was not in fact necessary or, at the very least, should be constructed to minimize its potential use as a tool to infringe on free expression, association and assembly.

If so, there is some irony to the Macau government’s decision to make use of this particular tool. By virtually all accounts, the passage of Article 23 was never much in doubt. Compared to Hong Kong, Macau has a docile political and social environment. Macau democrats, with some reservations, have supported the government’s draft law, and a number of civil society groups – many of which have enjoyed close ties to Beijing since well before the 1999 handover – also threw their weight behind the government draft.16 Public opinion polls indicated strong public support for the legislation, and the few protests against the bill yielded a relatively low turnout.17 

Local political commentator Larry So Man-yum summed up the consensus at the beginning of the Article 23 process in October 2008, predicting the law would sail through without incident. “There will be absolutely no problem,” So said. “Compared to Hongkongers, Macau people have high levels of acceptance for the central government.”18 Law Yuk-kai, the director of the Hong Kong Human Rights Monitor, a local watchdog group, suggested that the Macau government may be thinking more long term. “The Macau authorities think that Hong Kong civil society is very strong. They think the Hong Kong democrats are very strong,” Law said. “They do not want to see this imported.”19

Whether intended or not, the Macau government’s 2008 exclusion of various Hong Kong activists had a chilling effect: activists and others recruited that fall by Hong Kong civil society groups to visit Macau during demonstrations expressed concern about losing their access. Some declined to go, worried that they might be cut of from Macau friends if they took part in any political activity there.20

Some key questions remain unanswered: when was the ban instituted? How was the list of unwelcome persons created? What was Beijing’s role? How closely was the list tied to then-pending Article 23 legislation? To what extent were other political events, including the upcoming election of Edmund Ho’s replacement as Chief Executive, factors in the decision? What safeguards are needed to ensure, when the next sensitive item lands on the Macau legislative agenda, that the government won’t resort to a similar approach?

Hong Kong has similar questions to answer. It, too, seems to have used immigration law to deny entry to individuals who could not be said to pose any sort of security threat but who possess a “sensitive” political profile. Several activists, artists and others were denied entry to Hong in the run-up to the Beijing Olympics. More recently, it denied entry to various individuals seeking to take part in activities commemorating the 20th anniversary of the June 4, 1989 incident in Beijing, including former student protestor Xiang Xiaoji and Danish sculptor Jens Galschiot.21

The fact that the Hong Kong government, with its own unclean hands, felt obliged to reach out to Macau about abuse of immigration law was an irony not lost on some who had been barred. “The absurdity is that the Hong Kong government is doing the same thing to others,” said Democratic Party leader Albert Ho, who had been excluded from Macau in December 2008.22

Free Expression and the Right to Receive Information

In some cases, the rights of Macau residents may also come into play. In blocking Professor Chan, the Macau government also prevented his university audience from hearing him. Government decisions often impact not only speakers but, by extension, would-be listeners. Therefore some jurists have interpreted freedom of expression to include the right of individuals to receive information. American constitutional law has consistently recognized the core importance of that right as key to free expression. In essence, the right to speak freely is nullified if no one is allowed to listen. As Supreme Court Justice William Brennan wrote in a 1965 concurring opinion, “the dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”23

The right to receive information recently was recognized for the first time as a part of free expression under international human rights law. In March 2009, just as the events in Hong Kong and Macau were unfolding, the UN Human Rights Committee issued its decision in the case of Mavlonov and Sa’di v. Uzbekistan. In that case, which involved the shutting down of an Uzbek newspaper by the government, the Committee recognized that the rights of the readers of the closed newspaper had been affected. Specifically, the Committee held that:

The right to freedom of expression under Article 19 of the Covenant…. Mr. Sa’di’s right to receive information and ideas in print… has been violated. The Committee notes that the public has a right to receive information as a corollary of the specific function of a journalist and/or editor to impart information. It considers that Mr. Sa’di’s (a regular reader of the newspaper in question) right to receive information as an “Oina” reader was violated by its non-registration.24

Although the Committee’s decision refers to closing a newspaper, similar dynamics are present if excluding individual speakers for political reasons. Given that the ICCPR is binding on Macau,25 the Macau SAR government should take note of the Committee’s decision in the Mavlonov case, and revise its immigration laws and procedures in light of that decision.

Macau first, Hong Kong next?

On February 25, the Macau legislature passed the government’s Article 23 bill more or less intact, with few changes to the initial draft. The law as passed contained several key weaknesses, including vague and overbroad provisions that could be used to capture peaceful political activity. In particular, the provisions regarding subversion, sedition and theft of state secrets raised concerns among human rights activists about potential misuse or abuse.26

The passage of Article 23 legislation in Macau has led to some speculation that Article 23 is back on Hong Kong’s agenda. The Hong Kong government has denied this, repeatedly responding to enquiries with rote denials and claims to be fully focused on the economy.

Rationally speaking, does Hong Kong need new national security laws? “I don’t think it is a rational process. I think it is a political matter,” said Margaret Ng, legislative councilor representing the legal sector. She suggested that if the administration sees an opening to get a bill through with minimal political cost, it will take it. And it might move fast. “They will stick with the ‘we are in no hurry’ rhetoric. They will maintain this until the day before. This is what they did the last time,” Ng said. “I don’t think we should let our guard down.”27

Other democrats suggested that the government might well want to hold off. “Under the circumstances, I don’t think the administration will want to do it,” said democratic legislator Emily Lau. “If they have a choice, they would want to avoid that battle.”28

One might think that Chief Executive Tsang would agree, and leave Article 23 to his successor. Unfortunately, the decision may not be his alone to make: Beijing may well be whispering in his ear, urging action.29 Better to have the outgoing Chief take the political hit, so the theory goes, and let the new man enter office with a clean slate. Tsang’s reputation would suffer, to be sure, but he would be suitably rewarded by Beijing for his sacrifice. If Tsang is to move, he likely should do so relatively soon to allow enough time for consultation, amendment and final passage before leaving office. Some observers estimate the process would have to begin in 2010 to be completed before 2012, which means that a second try at Article 23 could be less than a year away.

Some even question whether the risks of introducing new legislation would be particularly great. The people of Hong Kong may now be less worried about such matters, and could respond to a draft bill with more apathy and indifference than concern. “If we have the same legislation now, there is more likely to be a complacent reaction from the community,” said Law Yuk-kai of the Human Rights Monitor.30

Others point to the effects of years of government stonewalling on universal suffrage as a potential factor. “The democrats fought for years for democracy, and we didn’t get it. People are now very disenchanted with the democrats,” said one pan-democratic legislator. “People are very disenchanted with politics. They don’t think much of the government, and they don’t think much of the democrats.”31

The government also would no doubt learn from its mistakes. In 2002-2003, many of its wounds were self-inflicted. Officials took a bare-knuckle approach to critics, and ended up scaring the public in the process. The second time round, the government likely will speak softly, act diplomatically and express willingness to make cosmetic changes to appear more reasonable. It will avoid controversy while seeking to preserve the bill’s core elements.32

However, public reaction to Article 23 legislation is difficult to predict. The introduction of Article 23 legislation means moving onto traditional democratic turf, real estate that in the past has proved politically damaging to both the SAR government and pro-Beijing political parties. Public reaction to new legislation may well be muted, and the negative impact on the government and Tsang himself limited. But there is no way to know for sure whether the public will remain passive or decide to sit up and take notice. The risks for Tsang are especially high if, as was the case in 2002, the government’s proposals are insufficiently protective of basic human rights. 

The past month has provided at least one sign that the government should proceed with caution: the annual June 4 vigil in Victoria Park. Attendance at the event this year was extremely high. Organizers put the turnout at 150,000, while the official government estimate was 62,800.33 Attendance was the highest in years, comparable only to the years immediately following 1989 and 2004, the year after the government’s initial attempt at Article 23 legislation was defeated.

One way to avoid political complications is to delay any action until universal suffrage is fully introduced for both the legislature and Chief Executive. If both Legco and the Chief Executive need an electoral mandate, then the political difficulties presented by Article 23 would be much reduced. The people of Hong Kong could punish or reward politicians for their votes on the legislation and, in doing so, ensure that their voices are heard, and respected, in the debate over national security law.

Thomas E. Kellogg is advisor to the president at Open Society Institute in New York and adjunct professor of law at Fordham University Law School.

07/01/2009