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DE RUEHHK #2258/01 3521020
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R 171020Z DEC 08
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC 6467
INFO RUEHOO/CHINA POSTS COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002258 
 
SIPDIS 
 
DEPT FOR EAP/CM; ALSO FOR DRL 
 
E.O. 12958: DECL: 12/17/2018 
TAGS: PGOV PHUM MC CH
SUBJECT: MSARG SUBMITS REVISED ARTICLE 23 BILL TEXT TO 
LEGISLATIVE ASSEMBLY 
 
REF: HONG KONG 2109 
 
Classified By: Acting Consul General Christopher J. Marut for reasons 1 
.4(b) and (d) 
 
¶1. (C) Summary and comment: After reviewing public comments 
regarding the Basic Law Article 23 draft text issued in 
October, the Macau Special Administrative Region Government 
(MSARG) formally tabled a revised bill with the Legislative 
Assembly (LA) December 17.  The LA will begin consideration 
of the bill December 19, followed by a committee markup.  An 
Executive Councilor suggested to us that, given Chinese New 
Year and the National People's Congress and Chinese People's 
Political Consultative Conference meetings in Beijing (at 
which many Macau officials will participate), a final vote is 
not likely before mid-April.  The revised text appears to 
limit the ability of the government to retroactively declare 
materials secret and has removed some "preparatory acts" as 
crimes.  Other improvements to the text claimed by government 
officials, however, are open to interpretation.  As before, 
the government has the votes to get what it wants, but it has 
also demonstrated it is responsive to public comment, so we 
do not rule out further modification to the bill.  End 
summary and comment. 
 
------------------- 
Legislative Process 
------------------- 
 
¶2. (SBU) The consultation period for the initial draft Basic 
Law Article 23 bill (BL 23) concluded November 30.  The Macau 
Special Administrative Region Government (MSARG) reported 
receipt of 784 comments: 693 supporting the bill, 20 
opposing, and 71 neutral. The MSARG then revised the text and 
submitted its new version of the bill to the Legislative 
Assembly (LA) December 17. 
 
¶3. (SBU) Mechanically, the next steps are as follows: 
 
--  An initial LA vote to receive or reject the bill.  The LA 
has scheduled initial discussions for December 19, and it is 
likely they will vote to receive the bill that day. 
 
--  Referral of the bill to one of the three committees 
(unlike the Hong Kong LegCo, the LA does not have topic-based 
committees; committees are assigned bills based on workload.) 
 (Note: Each committee has one member recognized as a 
democrat.  End note.)  The committee will review the text 
line-by-line and can propose amendments by majority vote, 
which are referred to the MSARG.  Members not on the 
committee are also able to propose amendments. 
 
--  If the MSARG accepts an amendment, it will itself draft 
the revised language.  The full LA does not vote on committee 
amendments. 
 
(Note: Secretary for Administration and Justice (SAJ) 
Florinda Chan stated that the government would continue to 
accept proposals from the general public, which it could then 
pass to the LA as revisions.  End note.) 
 
--  The committee will refer its text, as amended, for a 
final vote by the LA.  Unlike the Hong Kong LegCo, the LA 
votes article-by-article on the bill.  While articles can be 
rejected individually, the full LA does not have the power to 
amend the text. 
 
¶4. (C) The relatively rapid issuance of the revised text is 
most likely due to Chief Executive (CE) Edmund Ho's "duty 
visit" to Beijing, for which he is scheduled to depart 
December 18.  In a conversation with us December 15, LA and 
Executive Council member Leonel Alves (protect) said that 
Chinese New Year (January 26) plus the National People's 
Congress and Chinese People's Political Consultative Congress 
meetings (March, date TBD) meant that the final LA vote might 
not occur until mid-April. 
 
------------- 
State Secrets 
------------- 
 
¶5. (C) Under Article V, "Theft of State Secrets" (Article VI 
in the initial draft), the original language required the 
court to seek a ruling from the CE on whether materials or 
information contained state secrets.  The CE, after 
consulting with the central government, would issue a 
legally-binding certification for such secrets.  The revised 
text states: "If necessary, judicial organs may (vice 
"should") obtain certification from either the Chief 
Executive, or from the central government via the Chief 
 
HONG KONG 00002258  002 OF 002 
 
 
Executive, as to whether the aforementioned document, 
information or material is or is not already defined as a 
state secret." 
 
¶6. (C) These changes appear to grant the courts discretion in 
considering whether materials could contain secrets, 
potentially thus circumventing the broad definitions of state 
secrets in use in Mainland China.  Moreover, the language 
specifying that the question to be answered is whether the 
material in question is "already defined" as secret may offer 
some protection against retroactive classification.  There is 
still no specific definition of the criteria for 
classification.  The previous broad categories of potentially 
secret material -- national defense, foreign affairs, and the 
vague "matters regarding relations between the central 
government and Macau SAR government under the Basic Law" -- 
remain unchanged. 
 
---------------- 
Preparatory Acts 
---------------- 
 
¶7. (C) The revised text no longer criminalizes acts in 
preparation either to illegally acquire state secrets or to 
incite rebellion or mutiny by the PLA garrison.  Acts in 
preparation to commit treason, secession, or subversion 
(specified as overthrow of the government or some form of 
violent coercion) remain punishable by a maximum of three 
years' imprisonment.  SAJ Chan claimed in a press conference, 
and the government repeated in its official release, that the 
revised text had removed as a crime acts in preparation to 
commit sedition.  However, the text released by the 
government still contains language criminalizing preparation 
for sedition.  Like the original draft, the text does not 
specify what constitutes a preparatory act. 
 
----------------------- 
Public Interest Defense 
----------------------- 
 
¶8. (C) SAJ Chan contends that, since only public officials 
may be charged with illegal disclosure of state secrets , 
reporters are protected from prosecution.  This is correct 
with regard to the text of Article V (formerly Article VI) 
Section 3.  However, as "prying into (ci tan)" state secrets 
is still undefined as a term but clearly defined as a crime 
(Article V/Section 1), while a reporter might not be at risk 
of prosecution for disclosure of a secret, s/he might well be 
prosecuted for acquiring the secret in the first place. 
MARUT