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FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6795
INFO RUEHOO/CHINA POSTS COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 000193 
 
SIPDIS 
 
DEPT FOR EAP/CM; ALSO FOR DRL 
 
E.O. 12958: DECL: 01/22/2019 
TAGS: PGOV PHUM MC
SUBJECT: MACAU ARTICLE 23: THE BAD NEWS IS, IT'S IN THE 
HANDS OF THE COURTS 
 
REF: (A) 08 HONG KONG 2258 (B) 08 HONG KONG 2126 (C) 
     08 HONG KONG 2109 
 
Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) 
 
¶1. (C) Summary:  As one of our contacts put it, "as long as 
the quality of judges does not get any worse than now", 
Macau's Article 23 national security legislation should not 
be a threat to the rights of Macau citizens.  The  question 
informed observers ask, however, is whether the Macau 
judiciary will continue to meet that standard.  While Macau 
judges are still subject to a fairly rigorous, 
Portuguese-influenced training system, Macau's unmet need for 
more judges means graduates with no actual work experience 
could end up on higher court benches.  Three Portuguese 
lawyers told us they fear that locally-trained judges may 
also fall victim to political pressure.  A solution supported 
by many Portuguese legal professionals, but apparently 
resisted by the Macau government, would be to bring in 
experienced Portuguese judges to fill the gaps.  As a more 
immediate measure, one Macau legal scholar believes Macau's 
Article 23 bill must more explicitly protect journalists from 
prosecution for unknowingly revealing secrets and provide an 
explicit defense for revealing them in the name of public 
interest.  End summary 
 
¶2. (C) Comment: Given our expectation that the final Article 
23 legislation will not differ significantly from the text 
submitted to the Legislative Assembly (ref A), the USG and 
like-minded countries/organizations might do best to direct 
their efforts at programs which support the professional 
development and independence of the Macau judiciary.  End 
comment. 
 
¶3. (C) We spoke recently with three Portuguese lawyers who 
have spoken publicly for and against Macau's draft Article 23 
national security legislation.  Macau Lawyer's Association 
President Jorge Valente supports the bill, although he is 
concerned about the quality of Macau's judges.  Nuno Lima 
Bastos, a legal adviser to the Macau Post Office, spoke out 
against the bill at a public seminar (see ref B), but sees 
some improvement in the revised draft submitted to the 
Legislative Assembly (ref A).  Macau University Law Professor 
Jorge Godinho, who wrote the only comprehensive independent 
legal analysis of the initial draft, believes more clarity is 
needed to protect investigative journalists. 
 
------------------------- 
Becoming a Judge in Macau 
------------------------- 
 
¶4. (SBU) Despite reports from contacts that judges trained on 
the Mainland have taken the bench in Macau, Valente explained 
the process of training judges is still very Macau-specific. 
First, the candidate must have an LLB (undergraduate law) 
degree either from the University of Macau or a Portuguese 
university.  Valente conceded a student with a degree from a 
Mainland law institution such as the China University of 
Politics and Law might be able to pass the qualifying exam in 
the area of law.  However, such a candidate could almost 
certainly not meet the second criteria, which is spoken and 
written competence in both Chinese and Portuguese. 
 
¶5. (SBU) Candidates take a series of three exams: legal 
knowledge, language proficiency, and a psychological profile. 
 Of those who take the exams, which are offered every two 
years, only 5-10 percent will pass.  Successful applicants 
attend a three-year training course taught by lawyers, judges 
and academics.  They then face a second battery of 
examinations and evaluations.  Those who clear the second 
hurdle tend to be divided evenly between those who become 
judges and those who become public attorneys.  Valente told 
us there are supposed to be additional post-graduate 
evaluations, but in practice these do not occur. 
 
¶6. (C) While Valente regards this process as generally sound, 
he feels that some successful candidates are nonetheless not 
very talented, and that in any case new graduates should not 
be taking senior judicial positions like appeals courts.  His 
solution (which other Portuguese legal professionals have 
mentioned to us) is that more judges be invited from 
Portugal.  Such judges, as Valente explained it, have two 
advantages.  First, they will have a minimum of eleven years' 
experience on the bench in Portugal.  Second, they are 
engaged for two-year contracts, meaning those who are not 
competent can be gotten rid of (as opposed to local judges, 
who would need to be impeached by a tribunal of judges and 
removed by the Chief Executive.)  Valente believes, however, 
the government is not interested in this option.  He admits 
these judges are not required to show competence in Chinese, 
 
HONG KONG 00000193  002 OF 002 
 
 
which we believe may be an issue given Macau's interest in 
migrating the language of law to hinese. 
 
-------------- 
Under Pressure 
------------- 
 
¶7. (C) In general, Valente, Bastos andGodinho all treated 
the relative vagueness of soe provisions of the Article 23 
bill as within th norm for civil law jurisdictions 
(reftels).  Howver, all also believe local judges are 
vulnerabl to political pressure, making their adjudication 
of cases under Article 23 problematic.  Valente finds that 
some judges also respond to public outcry, which may lead 
them to deal more severely with defendants who are vilified 
in the court of public opinion.  Owing to these concerns, 
Godinho told us he intends to push, perhaps in a new journal 
article, for the current Article 23 text to state two points 
explicitly in order to protect the rights of journalists. 
First, he wants to require that a journalist accused of any 
secrecy offense must be shown to have been fully aware that 
the material in question was classified when committing the 
act found to be illegal.  Second, he wants the text to 
include an explicit public interest defense for such 
disclosures. 
DONOVAN