[Hong Kong version of National Security Law. Depth] How does Macau complete Article 23 of the Basic Law?

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Written by: Chen Yunlin

2020-05-29 19:00

The National People's Congress yesterday (May 28) voted to authorize the Standing Committee of the National People's Congress to promulgate and implement the "Law District Maintenance National Security Law" directly in Hong Kong, including the four major divisions of the country, subversion of state power, organization of terrorist activities, and external force intervention. The scope is to block the "national security loophole" caused by the SAR Government's delay in completing the legislative work of Article 23 of the Basic Law. In contrast, Macau, across the water, implemented Article 23 of the Basic Law and passed the National Security Law as early as 2009, and no one has violated the law in the past 11 years. Both belong to "one country, two systems". Why is Macau able to legislate smoothly? With regard to local law enforcement experience, what other places are worth learning from Hong Kong?

When the Hong Kong government promoted the legislation of Article 23 of the Basic Law in 2003, it caused an uproar, which not only triggered 500,000 people to take to the streets, but also caused the authorities not to have enough votes because of the Liberal Party's "rebellion". In the end, the draft could only be withdrawn. In 2009, the Macao Legislative Council passed the "National Security Law" (hereinafter referred to as the "National Security Law"), 15 civilized articles prohibiting seven types of acts that endanger national security-treason, split the country, incite rebellion, subvert the Central People's Government, steal State secrets, establishing contacts with foreign political organizations or groups to commit acts that endanger national security, the offenders can be imprisoned for a maximum of 25 years, and 30 years for multiple offences. This is also the highest penalty in Macau.

In 2003, 500,000 people from Hong Kong took to the streets to protest against the legislation of Article 23 of the Basic Law. (AFP)

The Macao government initially planned to enact legislation in 2003, but the rebound of public opinion in Hong Kong has made the authorities vigilant, and there are local opinions that Macau ’s livelihood and administrative laws have already lagged behind. If legislation is enacted for Article 23 of the Basic Law, the original legal reform is inevitable More tossing will also cause social disputes. The legislation was silent for a while. Until 2006, Xu Chongde, a member of the Macau Basic Law Drafting Committee, attended the 7th anniversary of the establishment of the Macao SAR and stated that the SAR should legislate as soon as possible to protect national security and fully implement and implement the Basic Law; a member of the Macao Basic Law Committee Wang Zhenmin, deputy dean of the Tsinghua University School of Law in Beijing, also said that the authorities can formulate national security laws suitable for Macau based on actual conditions and with reference to international experience. In addition, Macao Chief Executive Ho Hau Wah's two consecutive terms will soon expire in three years, so there are also views that He Hau Wah, as the first Chief Executive, should fulfill the constitutional responsibilities and campaign commitments.

In June 2007, the Macao Government announced the Roadmap for the Public Administration Reform of the Macao Special Administrative Region from 2007 to 2009, proposing legal reforms on the needs of social development and people's livelihood, including the implementation of Article 23 of the Basic Law. Looking through the news at that time, there was general support from the community, and even democrats such as the "New Macao Academy" issued a statement, stating that they did not oppose the legislation of Article 23 of the Basic Law, but hoped that the legislation would also need to protect citizens' rights and freedoms, and consult Macao residents and Improve legislative transparency. Such a foundation of popular feelings and social atmosphere is completely different from that of Hong Kong, and the legislative process has gone smoothly. The authorities announced the consultation text of Article 23 of the Macao Basic Law on October 21, 2008. A 40-day consultation on legal principles and contents such as criminal boundaries was launched, including five briefings and consultation sessions for different social sectors, and A public consultation also set up different channels such as the National Security Law website for the public to check and express their opinions.

How to resolve disputes?

Although compared with Hong Kong, Macao has better social conditions for enacting Article 23 of the Basic Law, it does not mean that there is no doubt. As soon as the consultation came out, society mainly focused on how to find a balance between national security and the individual rights of residents, worrying that the legislation would hinder freedom of expression. In addition, Wu Guochang, a member of the Democratic Legislative Council of Macao, believes that the consultation period for the draft is too short, and the consultation document proposes that "preparation for separatist activities" can be sentenced, but the definition of "preparatory conduct" is not clearly defined, and the document does not include the public. Benefits are regarded as reasons for defense and will affect the public's right to know. At the time, Tan Zhiqiang, an assistant professor in the Department of Communication at the University of Macau, was worried that the legislation made the media dare not report the first official news, and the unsecured trial of stealing state secrets made people question whether it was fair.

Compared with Hong Kong, Macao has better social conditions for enacting Article 23 of the Basic Law, but this does not mean that there is no doubt. (Profile picture)

He Houhua repeatedly reiterated his concern about crimes with words. Legislation is to fill the legal vacuum that has been returned for many years in accordance with the provisions of the Basic Law, and the provisions will only regulate serious crimes, and will not weaken the rights of speech, thought and criticism. . He also promised: "Call some slogans or write one or two articles to criticize the central government and the SAR government. I believe this will not be controlled by this law at all."

After the public consultation, the Chinese New Youth Association of Macao conducted a street survey during the consultation period, which effectively collected the opinions of 1,726 Macao residents over the age of 18. The survey showed that 55.3% of the respondents did not understand Article 23 of the Basic Law, but 91.3% of the respondents agree that the Macao SAR has the responsibility to maintain national security, and 70% of the respondents support Macao ’s own formulation of the National Security Law. Some respondents may express support for the legislation without understanding the situation. They agree with the Macao SAR It is responsible for maintaining national security, but there is still much room for improvement in the promotion and education of the Basic Law. At that time, there were also sporadic group petitions and parades in Macao. For example, in November 2008, the "Daily Democracy Parade" launched by the civil society "Democracy Startup", about 100 people participated in the parade. Members of the 4th Five-Year Operation and the Social and Civil Society also went to Macau to participate.

"The Chief Executive made it clear to the public from the beginning: We ask for advice, not to ask everyone whether we want it or not. There is nothing to discuss about it, and the Basic Law is also written. This is our responsibility, but how can legislation be done? Discuss and find a plan that everyone can accept, "said Luo Weijian, a director of the National Hong Kong and Macao Research Association and a professor at the Law School of the University of Macau. He observed that the voice of social support became mainstream, but many citizens did not understand the law in the process, worrying about the two aspects of "freedom of speech" and "press freedom", "How to define freedom of speech? What can be said? What is not? It can be said? After that, it becomes incitement to rebellion? What is state secret? Will the report involve state secret issues? "He said that these are the problems that society faces more often in daily life.

The then Chief Executive of Macau, Ho Hau Wah, promised: "Call some slogans or write one or two articles to criticize the central government and the SAR government. I believe this will not be regulated by this law at all." (Xinhua News Agency)

So how does Macau clarify? Luo Weijian refers to Macau's practice of referring to the national security laws of many places, and believes that "it can be solved by writing clearly, after all, there is a boundary". At that time, the Macao government set up two conditions for inciting rebellion-"open" and "direct". Luo Weijian explained that open, clear and unambiguous remarks affect others before they cause harm to society; while "stealing", "snooping" or "buying up" state secrets is a violation of national security laws. For example, public officials did not properly collect documents related to state secrets before being interviewed by reporters, but reporters accidentally saw the documents and wrote them into reports. Only civil servants should be held criminally responsible. Luo Weijian added: "Some people asked whether it was a mystery? No one did it. There have been no problems in the past decade or someone has broken the law. No one committed a crime, reflecting that we can fix the law and the law can play a preventive role."

Article 4 of the National Security Law (excerpt)

(1) Blatantly and directly inciting others to commit the offenders stipulated in Articles 1, 2 or 3 of this Law shall be punished by imprisonment for one to eight years.

Article 5 of the National Security Law (excerpt)

(1) Those who steal, spy, or buy state secrets, endanger or damage the independence, unity, integrity, or internal or external security interests of the country shall be sentenced to two to eight years in prison.

(2) Accepting instructions, instructions, money or valuables from governments, organizations, groups or their personnel outside the Macao Special Administrative Region to conduct espionage activities that steal, spy on or buy state secrets, or know that such entities or their personnel engage in such activities Those who are still recruiting personnel, providing assistance or facilitating in any way will be sentenced to three to ten years ’imprisonment.

In addition, the provisions on "preparatory acts" in the "National Security Law" of Macao have also caused controversy. There are voices referring to the existence of gray areas, requiring clear definition of "preparatory acts". Luo Weijian pointed out that subjective and objective conditions are required to constitute a preparatory crime. However, treason and secession are serious crimes and cannot be laid to rest until the incident occurs. Therefore, "preparatory actions" must appear in the provisions.

During the consultation period, the Macao Government received 784 submissions, of which 693 were in favor of legislation, 20 were against legislation, and 71 were not expressed. The Department of Administration and Legal Affairs issued a consultative summary report on the draft, stating that the society is more concerned about "incitement to rebellion", "stealing of state secrets", "preparatory acts" and other articles, the government proposes to delete the penalties for incitement to rebellion and preparatory acts to steal state secrets And reserve the punishment for preparatory acts of treason, secession and subversion of the Central People ’s Government, and refer to the provisions of the Criminal Code to add a penalty reduction mechanism; and state that “state secrets” cannot be recognized afterwards.

How to enforce the law after legislation?

In 2009, the National Security Law in the Legislative Council successively approved the adoption of principle and the final approval. In recent years, the Macao government has been strengthening the implementation of the National Security Law. In September 2018, the Macao government established the "National Security Committee" chaired by the chief executive. Its members include the director of the Macao Security Department, the police chief, and the judicial police chief. Waiting for Macao officials to take charge of coordinating and coordinating Macao's national security work. The total manpower is planned to increase from about 1,300 at present to 1,600 in seven years. In February last year, the Macao Legislative Council passed the amendment to the "Judicial Organization Outline Law" Prosecutors and judges involved in national security related cases need to be appointed from Chinese nationals; the "Network Security Law" will take effect in December, and the use of mobile phone prepaid cards will require real name registration.

Wang Chen, deputy chairman of the Standing Committee of the National People's Congress, explained in the drafting of the "National Security Law of the Port Area" that one country, two systems encountered new situations, new risks and new challenges in the practice of Hong Kong. (Xinhua News Agency)

Law enforcement requires law enforcement agencies and personnel. The Macao Judicial Police set up a number of departments such as national security intelligence collection, crime investigation, policy research, and comprehensive affairs last year. As of January this year, the Macao Legislative Council passed the "Judicial Police" law revision and the establishment of " The Judicial Police Department ’s Special Duty System also expands the powers of the Judicial Police Department responsible for criminal investigations, and exempts the disclosure of certain police identities under certain circumstances.

Various measures are not difficult to be seen as tightening free space. If there is a Legislative Council member criticizing it, the government abuses "universal keys" such as "security and stability", "preventing danger", "safeguarding danger", launching the "Civil Defense Outline Law" and expanding police Powers such as expanding the scope of police interception of communications, introducing laws and policies similar to "secret police". Faced with these doubts, Luo Weijian had another interpretation. He proposed that the first step of the principle of rule of law is legislation, and setting standards requires law enforcement, and then trial procedures, and these changes in Macau are making the legislation better, he said, "Law enforcement requires law enforcement teams and institutions. The police can divide more specialized departments according to requirements and legal knowledge levels. "Luo believes that these are all procedures required after legislation.

All along, based on the different sentiments between Macao and Hong Kong, the various measures taken by Macao against national security, from the legislation 10 years ago to the strengthening of law enforcement today, have been referred to as Hong Kong demonstrations, with political implications higher than application value. However, Luo Weijian countered that Macao had been facing the vacuum of national security laws for ten years from 1999 to 2009. For example, before the handover, the national security laws of the Portuguese Criminal Code were still used. After the establishment of the Macao Special Administrative Region in Japan, it is invalid after the establishment of Hong Kong, and at least there are similar laws such as the Public Security Ordinance corresponding to Article 23 of the Basic Law, but there is no similar provision in the Criminal Code of Macau, so Article 23 of the Basic Law is required to fill the loopholes.

So why not legislate immediately after the return? He made it clear that the timing is very important. At that time, Macao was facing two big mountains of social security and economy. The government needed to stabilize the people ’s hearts, and the citizens also considered their own interests first, so legislation was not the first consideration. Wang Chen, deputy chairman of the Standing Committee of the National People ’s Congress, explained on Friday (May 22) that the draft of the "National Security Law for the Port Area" mentioned that one country, two systems encountered new situations, new risks, and new challenges in the practice of Hong Kong. National security risks are becoming increasingly prominent. Locke added that the current situation in Hong Kong is urgent and only uses Annex III legislation. However, Hong Kong still needs to complete the legislative work of Article 23 of the Basic Law. "After all, legislation at the national level is principled legislation. Locally, the pursuit of details is more specific. These two laws are the whole. There is no contradiction between the national level and the local level. "

"If Hong Kong may face these disputes in the future, it can actually be discussed. As long as everyone accepts that it is necessary to maintain national security, don't oppose it. Try to make the incident more scientific and more reasonable. of."

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