The Committee for Safeguarding National Security has the authority to assess matters relating to the interests of national security

The Bill “Committee for Safeguarding National Security of the Macao Special Administrative Region” was deliberated and unanimously passed by the Legislative Assembly on 19 March. Compared to the proposed text presented on February 10 for general examination, the significant change of the revised text consists of the addition of a provision, i.e. the Committee for Safeguarding National Security of the Macao Special Administrative Region (hereinafter referred to as the Committee) is responsible for confirming whether the publication of certain procedural acts may harm the interests of national security, as well as deciding whether there is the need to protect such interests during the course of the proceedings. An analysis of the underlying legislative intent is of great importance for the complete and accurate understanding of the system and mechanisms for safeguarding national security in Macao.

1. The Committee is the legally competent organisation to assess matters relating to national security interests

Security is the premise for a nation’s survival and development, and national security is a crucial component of a nation’s core interests. When it comes to safeguarding national security interests, any government will remain resolute, intolerant of controversy, compromise, or interference. National security interests are highly political, complex, and dynamic, encompassing political, economic, military, scientific and technological domains. For this reason, in judicial practice, determining whether a given process or procedural act involves national security interests goes beyond the traditional scope of assessing legal facts. This requires an integrated evaluation of the macro internal and external situation, highly confidential information, and the country’s overall security strategy – capabilities that ordinary judicial bodies can hardly exercise autonomously, either due to limited access to information or insufficient specialised technical expertise.

Therefore, the legislative intent of the “Law on Committee for Safeguarding National Security of the Macao Special Administrative Region” is quite clear: the assessment of issues involving national security interests should only be carried out by the Committee. As the top unit for shouldering the main responsibility of safeguarding national security in the Macao SAR, the Committee possesses the most complete and essential security information and is the most authoritative body with the necessary conditions and capabilities to make judgements on whether national security interests are involved. Therefore, it is absolutely reasonable and necessary for the “Law on Committee for Safeguarding National Security of the Macao Special Administrative Region” to stipulate that the Committee is the specialised unit endowed with the corresponding legal competences to make such judgements. Through the amendment of the “Judicial Organisation Framework Law”, the Law expressly establishes that, when a judge decides not to make certain procedural acts public because he considers that their publicity may harm national security interests, he must obtain confirmation from the Committee. Furthermore, with regard to granting special authorisation to legal representatives to intervene in procedural acts concerning national security interests, the judge must communicate the information of the case to the Committee, “so that it can decide on the need to protect the interests of national security”. This gives the Committee, a unit endowed with the highest authority and expertise, the power of substantive assessment over the concept of “national security interests”, ensuring the accuracy of verification in matters of national security and effectively avoiding any risks arising from limitations of understanding on the part of the judicial authorities.

2. Rigorous legal provisions and a well-established system

Article 3, paragraph 2 of the “Law on Committee for Safeguarding National Security of the Macao Special Administrative Region” clearly and unequivocally establishes the fundamental competence of the Committee: “the Committee is responsible for assessing whether certain matters involve national security interests and issuing decisions with enforceable force”. In the absence of provisions regarding specific procedures that ensure its practical application, this fundamental competence may generate ambiguities in its application in specific judicial proceedings.

In the initial text submitted for general examination by the Legislative Assembly, the proposed amendments to the “Judicial Organisation Framework Law” were mainly based on the autonomous assessment by a “competent judge” or “competent judicial authority” regarding the need to safeguard national security interests. This formulation could generate a logical contradiction with the provisions of paragraph 2 of Article 3: if the Committee has exclusive competence to assess matters relating to national security interests, why then, in judicial proceedings, would only the judge be responsible for carrying out the substantive assessment?

The revised text of the Bill precisely answers this question. By amending the “Judicial Organisation Framework Law” and introducing the “confirmation” and “decision” of the Committee, it is ensured that its competence to assess national security interests is fully and systematically implemented in all circumstances.

3. The design of this mechanism does not affect the professional qualifications of lawyers nor the right of defense of interested parties

The provisions of the “Law on Committee for Safeguarding National Security of the Macao Special Administrative Region” relating to the assessment carried out by the Committee on national security interests and the establishment of a special authorisation procedure for legal representatives do not constitute a deprivation of the rights and legitimate interests of interested parties, much less affect the professional qualifications of lawyers.

Firstly, after the Committee’s assessment, the fact that a legal representative does not obtain special authorisation decided by the court only means that this lawyer will not be able to participate in that specific case, without affecting in any way their legal professional qualification to practice law in the Macao SAR.

Secondly, the right of those concerned to a fair trial remains strictly protected by law. In criminal cases related to national security, defendants continue to be fully protected by the principles of presumption of innocence, equal opportunities for prosecution and defense, the principle of investigation, as well as other principles of criminal procedure. Defendants retain the right to defend themselves personally, as well as the right to hire a lawyer for their defense. Even if the lawyer they hire does not obtain special authorisation, or if they are unable to hire a lawyer, the court will appoint or designate, in accordance with the law, a qualified lawyer to defend them, thus ensuring that their right to a fair trial is not in any way prejudiced.

Professor Leng Tiexun, Director of “One Country Two Systems” Research Centre of Macao Polytechnic University