MSARG SUBMITS REVISED ARTICLE 23 BILL TEXT TO

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002258

SIPDIS

DEPT FOR EAP/CM; ALSO FOR DRL

E.O. 12958: DECL: 12/17/2018
TAGS: PGOV PHUM MC CH
SUBJECT: MSARG SUBMITS REVISED ARTICLE 23 BILL TEXT TO
LEGISLATIVE ASSEMBLY

REF: HONG KONG 2109

Classified By: Acting Consul General Christopher J. Marut for reasons 1
.4(b) and (d)


1. (C) Summary and comment: After reviewing public comments
regarding the Basic Law Article 23 draft text issued in
October, the Macau Special Administrative Region Government
(MSARG) formally tabled a revised bill with the Legislative
Assembly (LA) December 17. The LA will begin consideration
of the bill December 19, followed by a committee markup. An
Executive Councilor suggested to us that, given Chinese New
Year and the National People's Congress and Chinese People's
Political Consultative Conference meetings in Beijing (at
which many Macau officials will participate),a final vote is
not likely before mid-April. The revised text appears to
limit the ability of the government to retroactively declare
materials secret and has removed some "preparatory acts" as
crimes. Other improvements to the text claimed by government
officials, however, are open to interpretation. As before,
the government has the votes to get what it wants, but it has
also demonstrated it is responsive to public comment, so we
do not rule out further modification to the bill. End
summary and comment.

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Legislative Process
--------------


2. (SBU) The consultation period for the initial draft Basic
Law Article 23 bill (BL 23) concluded November 30. The Macau
Special Administrative Region Government (MSARG) reported
receipt of 784 comments: 693 supporting the bill, 20
opposing, and 71 neutral. The MSARG then revised the text and
submitted its new version of the bill to the Legislative
Assembly (LA) December 17.


3. (SBU) Mechanically, the next steps are as follows:

-- An initial LA vote to receive or reject the bill. The LA
has scheduled initial discussions for December 19, and it is
likely they will vote to receive the bill that day.

-- Referral of the bill to one of the three committees
(unlike the Hong Kong LegCo, the LA does not have topic-based
committees; committees are assigned bills based on workload.)
(Note: Each committee has one member recognized as a
democrat. End note.) The committee will review the text
line-by-line and can propose amendments by majority vote,
which are referred to the MSARG. Members not on the
committee are also able to propose amendments.

-- If the MSARG accepts an amendment, it will itself draft
the revised language. The full LA does not vote on committee
amendments.

(Note: Secretary for Administration and Justice (SAJ)
Florinda Chan stated that the government would continue to
accept proposals from the general public, which it could then
pass to the LA as revisions. End note.)

-- The committee will refer its text, as amended, for a
final vote by the LA. Unlike the Hong Kong LegCo, the LA
votes article-by-article on the bill. While articles can be
rejected individually, the full LA does not have the power to
amend the text.


4. (C) The relatively rapid issuance of the revised text is
most likely due to Chief Executive (CE) Edmund Ho's "duty
visit" to Beijing, for which he is scheduled to depart
December 18. In a conversation with us December 15, LA and
Executive Council member Leonel Alves (protect) said that
Chinese New Year (January 26) plus the National People's
Congress and Chinese People's Political Consultative Congress
meetings (March, date TBD) meant that the final LA vote might
not occur until mid-April.

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State Secrets
--------------


5. (C) Under Article V, "Theft of State Secrets" (Article VI
in the initial draft),the original language required the
court to seek a ruling from the CE on whether materials or
information contained state secrets. The CE, after
consulting with the central government, would issue a
legally-binding certification for such secrets. The revised
text states: "If necessary, judicial organs may (vice
"should") obtain certification from either the Chief
Executive, or from the central government via the Chief

HONG KONG 00002258 002 OF 002


Executive, as to whether the aforementioned document,
information or material is or is not already defined as a
state secret."


6. (C) These changes appear to grant the courts discretion in
considering whether materials could contain secrets,
potentially thus circumventing the broad definitions of state
secrets in use in Mainland China. Moreover, the language
specifying that the question to be answered is whether the
material in question is "already defined" as secret may offer
some protection against retroactive classification. There is
still no specific definition of the criteria for
classification. The previous broad categories of potentially
secret material -- national defense, foreign affairs, and the
vague "matters regarding relations between the central
government and Macau SAR government under the Basic Law" --
remain unchanged.

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Preparatory Acts
--------------


7. (C) The revised text no longer criminalizes acts in
preparation either to illegally acquire state secrets or to
incite rebellion or mutiny by the PLA garrison. Acts in
preparation to commit treason, secession, or subversion
(specified as overthrow of the government or some form of
violent coercion) remain punishable by a maximum of three
years' imprisonment. SAJ Chan claimed in a press conference,
and the government repeated in its official release, that the
revised text had removed as a crime acts in preparation to
commit sedition. However, the text released by the
government still contains language criminalizing preparation
for sedition. Like the original draft, the text does not
specify what constitutes a preparatory act.

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Public Interest Defense
--------------


8. (C) SAJ Chan contends that, since only public officials
may be charged with illegal disclosure of state secrets ,
reporters are protected from prosecution. This is correct
with regard to the text of Article V (formerly Article VI)
Section 3. However, as "prying into (ci tan)" state secrets
is still undefined as a term but clearly defined as a crime
(Article V/Section 1),while a reporter might not be at risk
of prosecution for disclosure of a secret, s/he might well be
prosecuted for acquiring the secret in the first place.
MARUT