[Hong Kong version of National Security Law. Depth] How to enforce the "Macao Model"?

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Written by: Cheng Xue

2020-06-20 18:26

The three-day National People's Congress Standing Committee meeting closed on Saturday (June 20), Xinhua News Agency reported that the head of the Legal Work Committee of the National People's Congress gave an explanation of the "Law of the People's Republic of China on the Maintenance of National Security (Draft)". The National Security Council will be established in Hong Kong, with the special first chairman. In an interview with the media a few days ago (June 15), the Director of the Security Bureau, Li Jiachao, said that he hopes to complete Article 23 of the Basic Law in Macao this week and as early as 2009, and refers to the "National Security Committee" led by the Chief Executive of Macau. practice. As Li Jiachao said, the nature of national security issues in the two places is the same and different. So, what are the experiences of the committee that Hong Kong can learn from?

Hong Kong should keep up with the five major functions?

When Deng Zhonghua, deputy director of the Hong Kong and Macao Affairs Office of the State Council, attended the Basic Law Seminar hosted by the National Hong Kong and Macao Research Association on Monday (June 15), he mentioned that the "Hong Kong version of the National Security Law" contains three legal content features, including substantive law, procedural law and organizational law. Comprehensive laws; however, the Law on the Maintenance of National Security formulated and adopted by Macau itself in 2009 is only a “substantive law”, that is, only relevant rights and obligations were regulated at that time, which turned treason, split the country, incited rebellion, and subverted the Central People’s Government. 2. Theft of state secrets, foreign political organizations carrying out political activities, Macao political organizations establishing contacts with foreign countries and other acts that endanger national security are classified as criminal offences, but they do not cover the content of the "Procedural Law" or "Organizational Law."

Deng Zhonghua, deputy director of the Hong Kong and Macao Affairs Office of the State Council, stated earlier that the "Hong Kong version of the National Security Law" is a comprehensive law that includes three types of legal content, including substantive law, procedural law and organizational law. (Picture of National Hong Kong and Macao Research Association)

Luo Weijian, vice chairman of the National Hong Kong and Macao Studies Association and director of the Constitution and Basic Law Research Center of the University of Macao, pointed out that the “Law on the Maintenance of National Security” adopted by Macao in 2009 initially followed the existing law enforcement procedures, namely The police bureau investigates, the prosecutor prosecutes, and the court tries, but there are no special regulations for "investigation" and no relevant specialized organizations. Therefore, in the past 11 years, the Macao authorities have successively revised and filled in the supporting bills, gradually improving the law enforcement and trial contents that are missing from the "National Security Maintenance Law." The most important step is the establishment of the "Macao National Security Committee" in September 2018 to manage and maintain national security with a special organization.

The Macao National Security Commission has five main functions. The primary function is to coordinate and coordinate Macao's work to safeguard national sovereignty, security and development interests, and to study how to implement relevant deployment and chief executive directives. Luo Weijian explained that the entire SAR government is responsible for maintaining national security, so it is necessary to set up a special agency to lead and coordinate the coordination of various departments. The Chief Executive is the chairman of the committee, and the Director of the Security Department is the vice chairman. Other members include administrative law The Director of the Division, the Director of the Legal Affairs Bureau, the Director of the General Police Department, the Director of the Judicial Police Department, as well as the office directors or consultants of the relevant departments.

The second function is to analyze and judge the national security situation in Macao, that is, follow up and observe to understand the security situation in Macao, analyze the loopholes and dangers, and make recommendations to improve it. The third is to assist the Macao SAR to formulate policies to maintain national security. Luo Weijian said that the important significance of this work is to put forward specific measures. For example, in February 2019, the Macao Legislative Council passed an amendment to the "Judicial Organization Outline Law", which stipulates that only judges belonging to Chinese citizens and judicial officers of the Procuratorate can be assigned to handle cases involving the "National Security Law" because foreign judges are trying There may be a conflict of interest.

The primary function of the Macao National Security Council is to coordinate and coordinate the work of Macao in safeguarding national sovereignty, security, and development interests, and to study how to implement relevant deployment and chief executive directives. (Getty Images)

The fourth function of the committee is to coordinate the promotion of the construction of the Macao SAR's national security and legal system. Luo Weijian emphasized that the responsibility of the committee is only to establish bills. As for whether it can be implemented on the ground, local legislative procedures must be passed. In addition, the committee will also deal with other related matters, but there is no specific information to disclose what is the matter. Luo Weijian reminded that no matter what form Hong Kong sets up to maintain national security, it is necessary to handle the relevant work of the Macao National Security Council.

Under the secrecy order, bypass the Legislative Council?

Article 16 of the "Administrative Regulations of the Macao Special Administrative Region for the Maintenance of the National Security Council" states that "the agenda, content, minutes and related supporting documents of the committee meetings, and the work of the office shall be confidential"; in other words, only the chairman of the committee shall release the confidentiality command. In addition, Jin Xin, a member of the Democratic Legislative Council of Macao, said in a recent media inquiry that the committee’s functions are relatively “empty and abstract”, and that there have been no incidents that threatened national security in Macao in recent years, so the committee did not explain the work details to the Legislative Council. . All of these are worrying to a certain extent-if Hong Kong follows the example of Macau to establish the National Security Council, then will the relevant agencies only need to be accountable to the central government and not subject to the legislative council’s supervision?

In this regard, Luo Weijian responded that he must first understand the relationship between the executive and the legislature based on the Basic Law. Both the Macao Basic Law (Article 50, paragraph 15) and the Hong Kong Basic Law (Article 48, paragraph 11) clearly state that the Chief Executive decides whether government officials or Whether other officials responsible for government affairs testify and provide evidence to the Legislative Council or its committees. In other words, under the principle of "administrative guidance", major national security and public interest issues will prevail over everything. Furthermore, even the Basic Law stipulates that the SAR government needs to be accountable to the legislature, such as implementing laws passed by the Legislative Council, regularly accepting inquiries from members of the Legislative Council, etc. However, Luo Weijian pointed out that Members’ right to question is not unlimited, such as Do not question questions involving state secrets.

If Hong Kong follows the example of Macau to establish the National Security Council, will relevant agencies only have to hold the central government accountable and not subject to the supervision of the Legislative Council? (Profile picture)

Nonetheless, Luo Weijian did not believe that the committee was only accountable to the central government. For example, the committee does not have the power to decide what is a crime, or to determine whether anyone has touched the law, because the "legislative power" lies in the Legislative Council, and the formulation work is fair and transparent, and the "trial power" lies in the local courts, which does not involve the country. Confidential trials are often public and facilitate public supervision. He added that although the "Australian version of the National Security Law" has been patched since it was passed, he believes that law enforcement procedures will continue to be improved in the future.

Luo Weijian reminded: "We must realize that crimes that endanger national security are completely different from ordinary criminal crimes." The difference is first of all that crimes that endanger national security are often organized crimes, that is, a group, Hierarchical organization, gathering criminals to carry out illegal crime of division of labor; completely different from the criminal acts of individuals such as theft and murder. In addition, the crime of endangering national security must be subjective and intentional, and will cause a certain social impact; so personal crimes rarely occur, often organized or even external political organizations, groups, governments and other backgrounds. Secondly, Guoan’s criminal methods are also different from ordinary criminal offences. For example, many spies have been specially trained and have strong anti-reconnaissance capabilities.

Therefore, Luo Weijian believes that it is necessary to set up a professional team to specifically combat crimes that endanger national security, because "the crime of endangering national security is very different from ordinary ordinary criminal crimes in terms of severity and concealment. The general police cannot do this job. ......This is the same in the whole world. The Constitution of our country also stipulates that the Ministry of Public Security is responsible for ordinary social security, and that the Ministry of Security is responsible for the special task of maintaining national security. So is the United States, and so is the United Kingdom."

Luo Weijian believes that it is necessary to set up a professional team to specifically combat criminal acts that endanger national security. (Profile picture / Photograph by Zheng Zifeng)

Luo Weijian added that it is also necessary to implement organizational regulations and procedures for the special training team. At present, the Macau police generally follow the previous procedures for handling national security cases, but this is obviously outdated. "Some personnel with reconnaissance tasks, in accordance with the existing procedures, require the consent of the judge to obtain a search order and an interception order. Will there be any changes in the future? What? I think there will definitely be different approaches. For example, in Macau, individual special cases can be searched only with the approval of the prosecutor." He emphasized that these issues are still under discussion and how to balance the citizens with this special method right.

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