Macau law is local and tailored, not an imposition like in Hong Kong

Chang Cheong

Macau’s law on national security is a specific law produced locally and takies into account the reality and distinctiveness of the territory, the Secretary for Security, Wong Sio Chak, said yesterday morning during a press conference to launch the Public Consultation on the new regime.

In a reply to a media inquiry, Wong noted that the local law on national security, although it has been inspired by both national and Hong Kong regional legislation, is a different law when compared to those and, contrary to the one in force in the neighboring Special Administrative Region (SAR), is a specific law produced and tailored by the Macau Special Administrative Regions and not a law stipulated by the State.

Wong Sio Chak

“The national laws from the country and the HKSAR law [on the matter] were important references but, in Macau, we are framing our own law and taking into account our particularities as well as our legal framework. There are many differences in several aspects like in the typification of crimes but the most important difference is that this is our law while in Hong Kong the law has been stipulated by the State,” Wong said. “Our law is a basic law, the main law [that interlinks all the others legal regimes] and this is also a very significant difference as it is not a detached law,” he said

Earlier, an advisor to the Office of the Secretary for Security, Chang Cheong had explained that the government had taken into account five main guiding aspects for the law revision, including the clarification of the importance of this law in the hierarchy of the laws of Macau; perfecting crimes typification; establishing a new and separate procedural system; increasing protection against external interventions; and ensuring the legitimate rights and interests of the population.

Chang reaffirmed that these guidelines aim at implementing the general concept of national security, increasing the constitutional responsibility in defense of the State, preventing and punishing globally crimes against the State, as well as preventing and repressing external interventions to defend the sovereignty, security, and interests of the State and, consequently, the prosperity and stability of Macau.

Amendments with Taiwan and HK in mind

The social instability observed in the neighboring region of Hong Kong in the last few years and the recent visit of the speaker of the United States House of Representatives, Nancy Pelosi, to Taiwan, was not only mentioned during the press conference by several officials, including the Secretary for Security as “examples of situations to prevent in Macau,” but are also well embedded in the spirit of the legal intention of the amendments to be made.

Nonetheless, officials made clear, citing several examples, that there are many countries in the world and particularly in Europe, possessing similar regulations and legal provisions as the ones the local government wishes to promote.

Among the most highlighted changes are the amendments to several crime definitions to expand their scope.

Changes are proposed for the amendment of the crime of secession that would include not only the use of “violent or illicit methods” but also include all others, even if not violent that aim at the “destruction of State unification.”

Almost paraphrasing recent statements from Liu Xianfa, Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in Macau, Wong said, “To exist, the ‘one country, two systems’ principle, the ‘one country’ needs to exist first,” noting that such principle on unification and the defense of that unification has priority over any other law or rule.

Another important change proposed has to do with the crime of subversion, which is proposed in the new text to move from “Subversion against the central popular government” to “Subversion against the political power of the State.”

As explained, the goal is to include all the bodies of the central political power. As in the crime of secession, the new definition of the crime of subversion also includes non-violent illicit methods. When questioned on the matter, Chang explained that these can include the instigation of protests as well as other actions that fall under the provisions related to cybersecurity, that is, via the internet.

The same applies to the crime of sedition which is also proposed to include the crime of inciting others to the practice of acts of rebellion.

The violation of State secrets is also a crime with a broader scope, with a proposed aggravation of the crime for the act itself and then for a second crime that relates to the damages potentially caused. On this crime, it is also proposed that the application should not be limited to those revealing confidential information due to their rank and position but to anyone who may potentially become aware of this secret information.

On this topic, the Secretary was also questioned as to how a person could know if a piece of information is a state secret, if the concept of what is a state secret is not defined in the law.

To the question, Wong replied that such a definition will be clarified at a later stage in a future law solely dedicated to “Secrecy.”

Restriction on leaving Macau for a maximum of 5 days

Another novelty of the law is the potential application of a restriction measure applying in Macau to anyone who might be considered a suspect in a case involving national security matters.

As the Secretary explained, the measure is temporary and aims to prevent the suspect from leaving Macau and ensuring that he cooperates with the investigation of evidence collection.

Wong noted that the proposal is that this temporary restriction has a validity of three days that could be extended for another two, to a maximum of five, while noting that other countries and regions have restrictions of the same kind that can extend to over one year.

“This is to prevent a person from leaving before a judge can analyze the case and decide on the preventive measures to apply to this person. Other places use this system, such as Singapore. This is just to give enough time so the police and judiciary authorities can carry out their work,” Wong said advancing that in Hong Kong, this restriction could reach a maximum of nine months, while in the UK or Australia it could extend up to one year.

Information disclosure from organizations, people

The new law proposal also provides that by order of the Secretary for Security, organizations and individual people may have to disclose personal information related to “suspected activities and assets,” a provision that, as Chang mentioned, does not apply to those entities that enjoy some privileged status or diplomatic immunity.

Questioned on the topic, the officials explained that once again the measures are in line with international practices, and aim to prevent intervention by external forces.

“Under current law, we also have some provisions on this matter. So, it is not completely new. What we are doing now is to try to clarify this topic a little better,” Wong said, adding, “If the entities or people involved do not cooperate, they incur the crime of disobedience or aggravated disobedience.”

On the same topic, Chang further explained that it is the Judiciary Police which has the competence to request the information after an order from the Secretary.

Wong also said that such power is held by the Secretary for Security and not a judge, and that in Hong Kong the Security chief has a similar duty; similarly in the USA or Australia the Ministry of Defense has such competence.

Wong Sio Chak hopes no need to prosecute under the law

Secretary for Security Wong Sio Chak hopes that there is no need to make use of the provision of the national security law to prosecute anyone in Macau, he replied to media inquiries.

Wong said that he hopes that this law will have a “deterrent effect” and that after the approval and enforcement no one will be prosecuted for breaching its provisions, he said.

“We have seen that in Hong Kong, after the implementation of the law, there was a return to stability. This is why we believe that this law is important for progress and not to prevent development,” Wong said, adding, “Ideally, we would prefer not to apply [prosecute under] this law but because no illegalities are happening and not due to the non-operationality of the law,” he said. He hinted that in the past, there were breaches to the law but it was not possible to prosecute them adequately.