VZCZCXYZ0000
PP RUEHWEB

DE RUEHHK #0606/01 0910825
ZNY CCCCC ZZH
P 010825Z APR 09
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC PRIORITY 7302
INFO RUEHBJ/AMEMBASSY BEIJING 3051

C O N F I D E N T I A L HONG KONG 000606 
 
SIPDIS 
 
DEPT FOR EAP/CM AND INR/EAP 
 
E.O. 12958: DECL: 03/30/2019 
TAGS: PINR PGOV PHUM CH HK MC
SUBJECT: IMPACT OF MACAU LAW ON HONG KONG ARTICLE 23 DEBATE 
(C-AL9-00693) 
 
REF: STATE 29662 
 
Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) 
 
¶1. (C) Per reftel, post offers the following comments in 
response to reftel queries. 
 
¶2. (C) WHO ARE THE KEY BEIJING AND HONG KONG OFFICIALS 
INVOLVED IN HONG KONG'S ARTICLE 23 POLICY PROCESS, AND WHAT 
DIFFERENCES EXIST BETWEEN THESE INDIVIDUALS IN REGARDS TO THE 
TIMING, SCOPE, ENFORCEMENT, AND ANY OTHER IMPLICATIONS OF ANY 
NATIONAL SECURITY LAW IN HONG KONG?  Vice President Xi 
Jinping is the titular head of Hong Kong and Macau policy, 
but came to the position without significant background in 
either SAR.  The locus of policy expertise, at least 
according to Hong Kong contacts, is in the State Council Hong 
Kong and Macau Affairs Office (HKMAO) and, to a lesser 
extent, in the Central Government Liaison Office (CGLO) in 
Hong Kong, a HKMAO subsidiary. 
 
¶3. (C) The Hong Kong government has said on more than one 
occasion it is not considering revisiting Article 23 at this 
time, and the CGLO has publicly concurred that Hong Kong's 
focus at present should be on its economy.  Resuming 
consideration of Article 23 at any time would be politically 
costly; given the economic crisis and the decision to delay 
discussion of political reform, taking up Article 23 now 
would be a political disaster. 
 
¶4. (C) Regarding scope and enforcement, we would not 
anticipate a new bill going beyond the parameters of the 
2002-3 bill.  A new bill would likely proceed from the 
substantially amended version last on the table before the 
former draft's withdrawal in 2003.  We expect the central 
government would leave the specifics of drafting the bill to 
Hong Kong, although it might offer some general guidance. 
 
¶5. (C) WHAT DOES BEIJING VIEW AS THE BENEFITS FROM PASSING 
NATIONAL SECURITY LEGISLATION IN HONG KONG?  To the extent 
that Beijing's proxies in Hong Kong have been quoted on this 
issue, the emphasis is inevitably on fulfilling Hong Kong's 
responsibility under the Basic Law to pass a law on national 
security.  While Article 23 opponents have been most 
concerned by the danger to human rights, particularly freedom 
of speech, publication, and association, there has not been 
recent discussion of a particular "use" to which the Mainland 
would put Article 23.  The exception might be Falun Gong, a 
legally registered entity in Hong Kong whose status might be 
put in jeopardy under an Article 23 law. 
 
¶6. (C) WHAT HONG KONG OR CENTRAL GOVERNMENT AGENCIES, OR 
AFFILIATED ORGANIZATIONS, ARE INVOLVED IN THE POLICY PROCESS 
RELATED TO ARTICLE 23 LEGISLATION?  WHAT IS THE RELATIONSHIP 
BETWEEN THESE ENTITIES IN HONG KONG AND THEIR COUNTERPARTS IN 
MACAU?  As noted above, while the central government might 
direct the Hong Kong government to resume work on Article 23 
and might make general suggestions with regard to content, 
the actual drafting would be done, per standard practice, by 
the office of the Solicitor General under the Department of 
Justice.  (The Solicitor General's Office drafted the 2002-3 
bill, and then-Solicitor General Robert Allcock took the lead 
in responding to the various challenges to the legal merits 
of the bill posed by lawyers in the pan-democratic camp.) 
Many of the elements of the 2003 bill were drawn from 
existing Hong Kong legislation, and SAR officials made 
frequent reference at that time to related common law 
legislation such as the UK Official Secrets Act. 
 
¶7. (C) Since Macau is not a common law jurisdiction (it 
follows the civil legal tradition of Portugal and many other 
EU countries), we expect little coordination between Macau 
and Hong Kong government agencies in drafting.  Beijing runs 
the two SARs separately on matters excepting regional 
coordination, and would not normally suggest Macau guide Hong 
Kong.  For its part, Hong Kong would judge its legislative 
and legal institutions to be well in advance of Macau's 
(correctly, in our view), making Macau's example of little 
use. 
 
¶8. (C) WHAT IMPACT HAS MACAU'S PASSAGE OF ITS NEW NATIONAL 
SECURITY LAW HAD ON THE GOVERNMENT, PEOPLE, POLITICAL 
PARTIES, AND POLITICAL ACTIVISTS IN HONG KONG? 
Operationally, none.  Perception-wise, a great deal.  Hong 
Kong activists previously have not concerned themselves with 
developments in Macau.  They would not be doing so now if not 
for the fact that some of them fear passage of Macau's 
Article 23 legislation will prompt Beijing to push Hong Kong 
to do the same.  Others may not think the SAR government will 
try to pass Article 23 soon, but want to put down a marker 
about just how great the opposition to Article 23 would be. 
 
 
¶9. (C) The law under which Macau has recently denied entry to 
Hong Kong pan-democratic legislators and activists pre-dates 
Article 23.  However, Macau's action has been a great help in 
the pan-democrats' "negative advertising" campaign against 
Article 23.  Ironically, the conventional wisdom among many 
observers had been that, since Macau poses far fewer 
political challenges to the Mainland than Hong Kong, the 
implementation of Macau's law, at least in the initial 
stages, would be particularly lenient, so as to illustrate 
that Hong Kong's fears over Article 23 were misplaced.  If 
indeed that was the goal, the travel ban has done much to 
undermine that effort. 
 
¶10. (C) WHAT APPROACH IS THE TSANG ADMINISTRATION TAKING TO 
ITS CONSTITUTIONAL REQUIREMENT TO PASS NATIONAL SECURITY 
LEGISLATION?  TO THE EXTENT BEIJING IS ATTEMPTING TO 
INFLUENCE THE HONG KONG POLICY DEBATE OVER ARTICLE 23, WHAT 
LEVERAGE DOES THE HKSARG HAVE OVER BEIJING IN DETERMINING THE 
WAY FORWARD?  As of this moment, the SAR government has shown 
zero interest in resuming discussion over Article 23.  We 
believe they recognize there is no political gain to be made 
by re-introducing the bill at this time.  For now, the CGLO 
has publicly backed the SAR government in not re-opening the 
Article 23 debate in the near term, and none of our contacts 
have suggested there is any push from Beijing to do 
otherwise.  That said, if Beijing issued an order, we would 
expect the SAR government to comply without serious 
opposition.  The only effective "loyalist" opposition would 
come from pro-Beijing politicians with sufficient political 
will and influence to make the case to Beijing that Article 
23 is an electoral liability for pro-Beijing parties.  Even 
so, if Beijing is dead-set on passing the bill, we do not see 
anyone in Hong Kong so influential that they could walk 
Beijing back. 
 
¶11. (C) On the assumption Beijing still wants Article 23 
passed in Hong Kong sooner rather than later, two scenarios 
are being discussed here.  The more pessimistic scenario 
holds that, assuming the economy more or less recovers in the 
near future, Beijing will ask the lame-duck Tsang 
administration to pass the bill before leaving office.  In 
this thesis, the Tsang administration at that point would 
have no further need of political capital, and its sacrifice 
would allow the next administration to start with a clean 
slate.  While plausible, the flaw in this scenario is the 
gift it would represent to the pan-democratic camp in the 
2011 District Council and 2012 Legislative Council elections, 
with concurrent harm done to the electoral prospects of the 
pro-Beijing camp.  Another scenario holds that the 
newly-elected Chief Executive in 2012 would quickly push 
through Article 23 in the hope that, since further democratic 
reform should occur on his or her watch, s/he could undo the 
political damage. 
 
¶12. (C) For their part, mainstream pan-democrats have never 
disputed that Hong Kong must pass an Article 23 bill.  Their 
concerns have centered on the content and timing.  Given 
their druthers, they would argue only a Chief Executive and 
Legislative Council elected by universal suffrage (expected 
in 2020 at the earliest) would have the mandate to complete 
this work.  Other observers have suggested Beijing might 
expect a completed Article 23 law as a prerequisite for 
elections by universal suffrage. 
 
¶13. (C) WHAT WOULD PROMPT BEIJING TO INSIST HONG KONG HASTILY 
PASS A NATIONAL SECURITY LAW?  Nothing which we see from the 
Hong Kong perspective at this time.  If anything, the 
electoral performance of pro-Beijing parties even in direct 
elections has improved over time, which may have reduced 
Beijing's fears it might face an opposition-controlled 
legislature.  While we don't doubt Beijing has the will to 
force passage through should it decide it must, a decision 
taken in haste would involve tremendous collateral damage for 
its allies in Hong Kong. 
 
¶14. (C) WHAT EXISTING HONG KONG LAWS ADDRESS CONCERNS 
ASSOCIATED WITH THOSE IN ARTICLE 23 OF THE BASIC LAW?  IN 
PARTICULAR, HOW WILL NATIONAL SECURITY LEGISLATION IMPACT 
FOREIGN GOVERNMENTS' INTERACTION WITH THE HONG KONG 
GOVERNMENT OR THEIR ACTIVITIES IN THE HKSAR?  Other than 
noting that the vast majority of the provisions of the 2002-3 
bill were based on pre-existing laws in Hong Kong, it is 
difficult to answer this question absent a new text to 
examine.  Given the controversy attached to the last attempt 
to pass the bill, at a minimum some level of cosmetic change 
to the 2002-3 bill would be politically obligatory for the 
government.  Otherwise, the pan-democrats would be able to 
brand the government's new proposal as a dusted-off version 
of the bill which brought out half a million people into the 
 
streets in 2003. 
DONOVAN