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FM AMCONSUL HONG KONG
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INFO RUEHOO/CHINA POSTS COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 002109 
 
SIPDIS 
 
DEPT FOR EAP/CM AND DRL 
 
E.O. 12958: DECL: 11/17/2018 
TAGS: PGOV PHUM MC
SUBJECT: MACAU ARTICLE 23 LEGISLATION: A DISTURBING 
VAGUENESS 
 
REF: OSC CPP20081031701002 
 
Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) 
 
¶1. (C) Summary and comment: To meet the requirement of 
Article 23 of its Basic Law, the Macau Special Administrative 
Region Government put forth a draft "Law for Safeguarding 
National Security" in a consultation document released 
October 22.  Macau observers see three deficiencies in the 
government's draft bill for Basic Law Article 23 legislation: 
a murky process of declaring information a state secret, no 
explicit "public interest" consideration for journalists 
revealing secret information, and a vague definition of 
"preparatory acts" for crimes identified by the law.  Other 
concerns include the applicability of the law to Macau 
citizens outside Macau and the criminalization of spreading 
"false or clearly warped" information on behalf of foreign 
individuals or organizations.  The bill, as currently 
drafted, appears to create legal grounds to threaten 
investigative journalism and some political activities under 
a state secrets rubric.  End summary and comment. 
 
¶2. (C) Macau's Basic Law contains the same Article 23 as Hong 
Kong's, which requires each region to "enact laws, on its 
own, to prohibit any act of treason, secession, sedition, 
subversion against the Central People's Government, or theft 
of state secrets, to prohibit foreign political organizations 
or bodies from conducting political activities in the Region, 
and to prohibit political organizations or bodies of the 
Region from establishing ties with foreign political 
organizations or bodies."  The bill text was included in a 
consultation paper released by the Macau Special 
Administrative Region Government (MSARG) October 22 for a 
forty-day consultation ending November 30 (an informal USG 
translation of the bill text is available from Open Source 
Center).  We discussed the legal issues relevant to the draft 
bill with a range of scholars, law professors and 
journalists, and attended a seminar at which legislators, 
lawyers and journalists discussed the draft.  We have also 
reviewed relevant Macau laws and scholarly assessments of the 
draft bill. 
 
------------------- 
What is a "Secret"? 
------------------- 
 
¶3. (C) The draft bill defines "state secrets" as "documents, 
information or items on matters that should be kept 
confidential (ying yuyi baomi) because they involve national 
defense, diplomacy or other affairs which, as stipulated in 
the Basic Law, touch on relations between the central 
government and the MSAR."  Macau lawyers tell us Macau has no 
existing law on state secrets or national security, as the 
Portuguese law addressing these matters lost force at the 
time of the handover in 1999.  The Macau Criminal Code of 
1995 addresses protected information in terms of internal 
Macau government-level matters handled by civil servants 
(Art. 348) and protection of mail and telecommunications from 
unauthorized disclosures (Art. 349).  Thus, should the bill 
become law, the only governing authority for state secrets in 
Macau would be the "certifications" of specific documents 
issued by the Chief Executive after consultation with the 
Central Government, per Article 6, Section V of the draft. 
These determinations would be fixed and final for purposes of 
a criminal case. 
 
¶4. (C) Our interlocutors regard this provision as vague and 
open-ended in several respects.  First, the act of obtaining 
a certification for purposes of a criminal case into illegal 
revelation of state secrets implies the document in question 
was not already marked as secret.  On that basis, some 
observers believe the bill might grant the central government 
the right retroactively to declare almost anything a secret. 
One legal scholar, University of Macau Law Professor Jorge 
Godinho, contends that the draft only criminalizes revealing 
secrets related to foreign affairs, national defense, and 
central government-Macau communications.  He therefore 
concludes that the courts and the government should not be 
able to seek a certification about a matter outside these 
areas.  For example, Godinho argues, financial matters should 
not be declared secrets for which disclosure would constitute 
a crime. 
 
¶5. (C) Second, both Godinho and Macau lawyer Nuno Lima Bastos 
note that the scope of "relations between the central 
government and the MSAR" covers a range of issues that goes 
far beyond foreign and defense matters.  A strict reading of 
the Macau Basic Law indicates that, in addition to its 
purview over foreign and security affairs, the central 
government has either an explicit role in, or is reported to 
 
HONG KONG 00002109  002 OF 003 
 
 
concerning: 
 
--  Interpretation of the Basic Law and the work of the Macau 
Basic Law Committee; 
 
--  The appointment of the Chief Executive and principal 
officials, including the Procurator General and judges; 
 
--  All legislation passed by the Legislative Assembly; 
 
--  Applicability of national laws to Macau; 
 
--  Court cases which may touch on areas of national 
significance; 
 
--  Emigration to Macau, Macau's negotiation of visa-free 
travel regimes with other countries/territories, and the 
issuance of passports; 
 
--  Civil aviation arrangements; 
 
--  Macau's continued autonomy in external agreements and 
organizations, as well as the validity of contracts, from 
prior to the handover; and 
 
--  Macau's establishment of trade missions overseas. 
 
As noted above, there are no criteria in either the draft or 
any other law cited by our contacts that defines the basis 
for declaring communications in any of these areas as secret. 
 
-------------------------------- 
Who Defines the Public Interest? 
-------------------------------- 
 
6.(C) The draft states "if a person steals, pries into, or 
buys state secrets", he commits an offense unishable by two 
to eight years' imprisonment.  he terms for"buying" 
(shoumai) or "stealing" (qequ) are straightforward, making 
use of unambiguus terms in Chinese.  "Prying into" (citan) 
is a uch less precise term, the meaning of which could 
include approaching confidential sources.  The draft includes 
no public interest defense for journalists revealing secret 
information.  The Macau Law on Publications provides 
extensive rights to journalists to cover issues, to approach 
a range of sources for information, and to report critically 
on actions of the government.  However, the Law on 
Publications specifically forbids approaching sources for 
information deemed secret in a judicial proceeding, state 
secrets of relevant government entities (undefined), 
materials deemed secret by law (also undefined), or matters 
related to personal privacy. 
 
¶7. (C) Article 30 of the 1995 Macau Criminal Code does define 
"justified defense" (zhengdang fangwei) as a general legal 
excuse from prosecution, but none of our contacts felt it 
would automatically allow a "public interest" defense for 
journalists under the draft bill.  Even the question of who 
might rule that there was a "public interest" in the 
revelation of a particular secret is unclear.  Macau 
University Law Professor Luo Weijian told us confidently that 
the judge would have discretion at least to rule on the 
"damage" done to national interests by revelation of a 
secret; to date no one else to whom we have spoken concurs in 
this interpretation.  In any event, our contacts have little 
faith in the largely Mainland-trained Macau judiciary's 
breadth of legal perspectives or resistance to political 
pressure. 
 
------------------------------------- 
What Constitutes a "Preparatory Act"? 
------------------------------------- 
 
¶9. (C) Article 9 of the draft declares that "preparatory 
acts" for any of the criminalized behaviors of treason or 
revealing state secrets are punishable by three years' 
imprisonment.  The consultation paper offers no further 
details beyond indicating such preparatory acts need to be 
punished but, since no serious crime would have been 
committed at the time of apprehension, the penalty should be 
"comparatively light"; i.e. three years in jail.  While the 
vagueness of the definitions on secrecy is discussed above, 
the treason and sedition clauses at least carry a fairly 
specific condition of use of violence or incitement to others 
to use violence.  However, Article 9 in no way makes explicit 
how an act is determined to be preparatory to commit such an 
offense.  Intentionality is not considered in the text, nor 
is any specific threshold (gathering weapons, establishing 
illegal funding sources, formation of an organization for the 
purpose of committing a criminal act, etc.) 
 
HONG KONG 00002109  003 OF 003 
 
 
 
---------------------- 
Other Areas of Concern 
---------------------- 
 
¶10. (C) Macau contacts are concerned about the applicability 
of the law to acts committed outside Macau.  Article 12 
Section II states "the present law also applies to MSAR 
residents who commit acts stipulated in Articles 2, 3, 4, 5, 
and 9 outside of the MSAR."  A concern not mentioned by our 
contacts as yet is Article 8/II/(II)/1's ban on working with 
foreign organizations or individuals in "collecting, 
preparing, or openly spreading false (xujia) or obviously 
warped information (mingxian yousuo waiqude xiaoxi)."  The 
consultation document offers nothing further defining 
standards of falsehood or "warpedness".  The question would 
be whether this standard of law could be used against those 
reporting on scandals or making critical evaluations of 
government performance (alleging their information is 
"false") or against groups like Falun Gong (alleging their 
information is "obviously warped".) 
DONOVAN