MACAU ARTICLE 23: THE BAD NEWS IS, IT'S IN THE

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 000193 SIPDIS DEPT FOR EAP/CM; ALSO FOR DRL E.O. 12958: DECL: 01/22/2019 TAGS: PGOV PHUM MC SUBJECT: MACAU ARTICLE 23: THE BAD NEWS IS, IT'S IN THE HANDS OF THE COURTS REF: (A) 08 HONG KONG 2258 (B) 08 HONG KONG 2126 (C) 08 HONG KONG 2109 Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) ¶1. (C) Summary: As one of our contacts put it, "as long as the quality of judges does not get any worse than now", Macau's Article 23 national security legislation should not be a threat to the rights of Macau citizens. The question informed observers ask, however, is whether the Macau judiciary will continue to meet that standard. While Macau judges are still subject to a fairly rigorous, Portuguese-influenced training system, Macau's unmet need for more judges means graduates with no actual work experience could end up on higher court benches. Three Portuguese lawyers told us they fear that locally-trained judges may also fall victim to political pressure. A solution supported by many Portuguese legal professionals, but apparently resisted by the Macau government, would be to bring in experienced Portuguese judges to fill the gaps. As a more immediate measure, one Macau legal scholar believes Macau's Article 23 bill must more explicitly protect journalists from prosecution for unknowingly revealing secrets and provide an explicit defense for revealing them in the name of public interest. End summary ¶2. (C) Comment: Given our expectation that the final Article 23 legislation will not differ significantly from the text submitted to the Legislative Assembly (ref A),the USG and like-minded countries/organizations might do best to direct their efforts at programs which support the professional development and independence of the Macau judiciary. End comment. ¶3. (C) We spoke recently with three Portuguese lawyers who have spoken publicly for and against Macau's draft Article 23 national security legislation. Macau Lawyer's Association President Jorge Valente supports the bill, although he is concerned about the quality of Macau's judges. Nuno Lima Bastos, a legal adviser to the Macau Post Office, spoke out against the bill at a public seminar (see ref B),but sees some improvement in the revised draft submitted to the Legislative Assembly (ref A). Macau University Law Professor Jorge Godinho, who wrote the only comprehensive independent legal analysis of the initial draft, believes more clarity is needed to protect investigative journalists. -------------- Becoming a Judge in Macau -------------- ¶4. (SBU) Despite reports from contacts that judges trained on the Mainland have taken the bench in Macau, Valente explained the process of training judges is still very Macau-specific. First, the candidate must have an LLB (undergraduate law) degree either from the University of Macau or a Portuguese university. Valente conceded a student with a degree from a Mainland law institution such as the China University of Politics and Law might be able to pass the qualifying exam in the area of law. However, such a candidate could almost certainly not meet the second criteria, which is spoken and written competence in both Chinese and Portuguese. ¶5. (SBU) Candidates take a series of three exams: legal knowledge, language proficiency, and a psychological profile. Of those who take the exams, which are offered every two years, only 5-10 percent will pass. Successful applicants attend a three-year training course taught by lawyers, judges and academics. They then face a second battery of examinations and evaluations. Those who clear the second hurdle tend to be divided evenly between those who become judges and those who become public attorneys. Valente told us there are supposed to be additional post-graduate evaluations, but in practice these do not occur. ¶6. (C) While Valente regards this process as generally sound, he feels that some successful candidates are nonetheless not very talented, and that in any case new graduates should not be taking senior judicial positions like appeals courts. His solution (which other Portuguese legal professionals have mentioned to us) is that more judges be invited from Portugal. Such judges, as Valente explained it, have two advantages. First, they will have a minimum of eleven years' experience on the bench in Portugal. Second, they are engaged for two-year contracts, meaning those who are not competent can be gotten rid of (as opposed to local judges, who would need to be impeached by a tribunal of judges and removed by the Chief Executive.) Valente believes, however, the government is not interested in this option. He admits these judges are not required to show competence in Chinese, HONG KONG 00000193 002 OF 002 which we believe may be an issue given Macau's interest in migrating the language of law to hinese. -------------- Under Pressure -------------- ¶7. (C) In general, Valente, Bastos andGodinho all treated the relative vagueness of soe provisions of the Article 23 bill as within th norm for civil law jurisdictions (reftels). Howver, all also believe local judges are vulnerabl to political pressure, making their adjudication of cases under Article 23 problematic. Valente finds that some judges also respond to public outcry, which may lead them to deal more severely with defendants who are vilified in the court of public opinion. Owing to these concerns, Godinho told us he intends to push, perhaps in a new journal article, for the current Article 23 text to state two points explicitly in order to protect the rights of journalists. First, he wants to require that a journalist accused of any secrecy offense must be shown to have been fully aware that the material in question was classified when committing the act found to be illegal. Second, he wants the text to include an explicit public interest defense for such disclosures. DONOVAN