MACAU ARTICLE 23 LEGISLATION: THE GOOD NEWS IS,

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 000192

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E.O. 12958: DECL: 01/22/2019
TAGS: PGOV PHUM MC
SUBJECT: MACAU ARTICLE 23 LEGISLATION: THE GOOD NEWS IS,
IT'S IN THE HANDS OF THE COURTS

REF: (A) 08 HONG KONG 2258 (B) 08 HONG KONG 2109

Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d)


1. (C) Summary and comment: Macau Law Reform Officer
Director Chu Lam-lam, who drafted the text of Macau's Article
23 national security bill, walked us through existing Macau
law to demonstrate the bill's secrecy provisions would not
pose a risk to journalists. She stressed that courts will
have discretion to weigh the public interest in disclosure of
classified information against the harm to national security.
Chu also maintained that "preparatory acts" can only be
prosecuted as crimes if both the persons involved intended to
eventually commit a crime and their preparations would
actually allow them to do so. If Macau judges share Chu's
view of how existing law should apply to Article 23, the
eventual law may not be as great a risk to human rights as
some observers had feared. The question is whether, in a
system in which the language of law is deliberately general
and precedent is not binding, the courts will decide in the
fashion Chu describes, and how consistently they will rule
(upcoming septel). End summary and comment.

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Letter of the Law
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2. (C) On January 9, we met with Director of Macau's Law
Reform Office Ms. Chu Lam-lam, who wrote the draft of Macau's
Article 23 national security bill which went to the
Legislative Assembly. Chu began by explaining that civil law
texts lack the exhaustive definition and detail of common law
legislation. For purposes of Macau law, she explained, any
criminal law on a specific topic (in addition to Article 23
legislation, she mentioned Macau's anti-terrorism and
anti-money laundering laws),has as points of departure the
Macau Criminal Code (Code Penal) and the Macau Criminal
Procedure Code. Thus, although the bill might not
specifically refer to the Code Penal, if the terminology used
for a point of law is the same, then the Code Penal (and the
existing jurisprudence interpreting it) will guide judges in
Article 23 cases. In this sense, laws like Article 23, the
anti-terrorism law, and the anti-money laundering law might
best be understood as explanations of how the Code Penal is
applied with respect to those particular crimes.

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Secrecy
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3. (C) Regarding crimes of divulging state secrets as they
might affect journalists, Chu said that, in addition to the
actual fact of a disclosure, two standards must be met.
First, the act must be intentional, and second, the act must
harm state security. Chu argued that, unless a journalist
knowingly and deliberately sought access to material s/he
knew to be classified, s/he could not be charged with "prying
into" (ci tan) state secrets. She reiterated comments she
made to the press that, since only the government held state
secrets, only a government official could be charged with
disclosure of a secret. Chu also stated that a journalist
could not be held liable were s/he given information which
was not specifically marked or described as classified. Chu
also told us it is not legal to classify material to cover up
a crime, although she did not cite which Macau law makes that
point.


4. (C) Ref A noted that the Article 23 bill language on how
courts would seek advice from the government as to whether
information was classified had changed from "should obtain
certification" to "may obtain certification". We previously
interpreted this change as giving the court discretion to
consider whether some unmarked material might or might not
constitute a secret. Chu explained to us, however, that
should the prosecution argue that some material in the case
was classified, the court would be obligated to seek a ruling
from the government. As reported previously, the revised
Article 23 bill text requires that the information have been
classified prior to its disclosure.


5. (C) Chu told us very clearly that, under the terms of the
current Article 23 bill, the Macau judge will have the sole
discretion to decide whether the disclosure harms state
security.


6. (C) Comment: Article 5.1.c of the Macau Law on
Publications (1990) bars journalists from approaching their
sources for classified information. This appears to track
with Chu's explanation of the "intentionality" standard to be
imposed under Article 23 legislation. The question becomes

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then, if the journalist did not specifically seek classified
information but was given material marked classified unasked,
does s/he have the right to publish it? The Publications Law
does not directly address this. The current Article 23 bill
seems to suggest that to publish classified information
intentionally could be a crime.

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Public Interest Defense
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7. (C) As reported ref B, Macau's existing doctrine of public
interest defense is in Articles 30, 31, 33 and 35 of the Code
Penal. Article 30 defines a concept of "legitimate or
justified defense", which Chu and Macau University Law
Professor Luo Weijian (ref B) argued provides a public
interest defense for journalists disclosing classified
information. Article 31 justifies actions to fend off
infringements of one's own or another's lawfully protected
interests, providing the methods used are shown to be
necessary to block the infringement. Article 33 adds the
right to avoid imminent danger, with the requirement that
harm caused by the "defensive" action must be less than the
harm which would be caused by inaction. Article 35 grants an
exception to persons not fulfilling their official duties or
disobeying the orders of authorities in cases in which
obedience would cause greater harm than disobedience. It
further allows officials the right to disobey their
superior's orders should those orders involve committing a
crime. All of these points, Chu argues, would allow a judge
the discretion to balance the public good achieved by
disclosure of classified information against the harm caused
to the state.


8. (C) Comment: We have no basis to comment on how willing
Macau judges are to consider "justified defense" for other
crimes, and thus cannot predict whether it will be a key
doctrine guiding Article 23 cases. However, the language in
Articles 31 and 33 both implies that the justifiable action
is taken against a threat to oneself or others that is either
imminent or in progress. This may be a difficult standard to
meet for an investigative journalist uncovering a political
scandal which is neither in progress at that moment nor can
be shown to directly threaten anyone.

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Preparatory Acts
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9. (C) Chu told us "preparatory acts" under Macau law are not
the same as the common law concept of "conspiracy". She also
pointed out that, under Article 20 of the Code Penal,
preparatory acts can only be a crime if specifically stated
in the law. Articles 297-299 of the Code Penal specifically
criminalize only acts in preparation to use violence to
disrupt or change the existing order in Macau, or otherwise
cause destruction. The language in the Article 23 bill is
similar. Chu said two standards would need to be met to
declare preparatory acts to be criminal. First, the
perpetrator would have to have the intention of committing
the act for which it were alleged s/he was preparing.
Second, the preparatory actions themselves would need to
credibly allow the perpetrator to commit the criminal act.


10. (C) Comment: Chu's point to us was that talking about
something doesn't make it possible to achieve. If this is
the approach that the Macau judiciary will take to Article 23
cases, much of the concern that activists calling for
political change in either the Macau or Mainland governments
could be charged with preparing for subversion would seem
unfounded. Since the definitions for the remaining crimes in
the Article 23 bill for which preparatory acts are also
crimes -- treason, secession, and subversion -- specify acts
of violence, presumably meeting Chu's credibility standard
would require actions in physical preparation to commit
violent acts, such as seeking to purchase or gathering
weapons.
DONOVAN