IMPACT OF MACAU LAW ON HONG KONG ARTICLE 23 DEBATE

C O N F I D E N T I A L HONG KONG 000606 SIPDIS DEPT FOR EAP/CM AND INR/EAP E.O. 12958: DECL: 03/30/2019 TAGS: PINR PGOV PHUM CH HK MC SUBJECT: IMPACT OF MACAU LAW ON HONG KONG ARTICLE 23 DEBATE (C-AL9-00693) REF: STATE 29662 Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) ¶1. (C) Per reftel, post offers the following comments in response to reftel queries. ¶2. (C) WHO ARE THE KEY BEIJING AND HONG KONG OFFICIALS INVOLVED IN HONG KONG'S ARTICLE 23 POLICY PROCESS, AND WHAT DIFFERENCES EXIST BETWEEN THESE INDIVIDUALS IN REGARDS TO THE TIMING, SCOPE, ENFORCEMENT, AND ANY OTHER IMPLICATIONS OF ANY NATIONAL SECURITY LAW IN HONG KONG? Vice President Xi Jinping is the titular head of Hong Kong and Macau policy, but came to the position without significant background in either SAR. The locus of policy expertise, at least according to Hong Kong contacts, is in the State Council Hong Kong and Macau Affairs Office (HKMAO) and, to a lesser extent, in the Central Government Liaison Office (CGLO) in Hong Kong, a HKMAO subsidiary. ¶3. (C) The Hong Kong government has said on more than one occasion it is not considering revisiting Article 23 at this time, and the CGLO has publicly concurred that Hong Kong's focus at present should be on its economy. Resuming consideration of Article 23 at any time would be politically costly; given the economic crisis and the decision to delay discussion of political reform, taking up Article 23 now would be a political disaster. ¶4. (C) Regarding scope and enforcement, we would not anticipate a new bill going beyond the parameters of the 2002-3 bill. A new bill would likely proceed from the substantially amended version last on the table before the former draft's withdrawal in 2003. We expect the central government would leave the specifics of drafting the bill to Hong Kong, although it might offer some general guidance. ¶5. (C) WHAT DOES BEIJING VIEW AS THE BENEFITS FROM PASSING NATIONAL SECURITY LEGISLATION IN HONG KONG? To the extent that Beijing's proxies in Hong Kong have been quoted on this issue, the emphasis is inevitably on fulfilling Hong Kong's responsibility under the Basic Law to pass a law on national security. While Article 23 opponents have been most concerned by the danger to human rights, particularly freedom of speech, publication, and association, there has not been recent discussion of a particular "use" to which the Mainland would put Article 23. The exception might be Falun Gong, a legally registered entity in Hong Kong whose status might be put in jeopardy under an Article 23 law. ¶6. (C) WHAT HONG KONG OR CENTRAL GOVERNMENT AGENCIES, OR AFFILIATED ORGANIZATIONS, ARE INVOLVED IN THE POLICY PROCESS RELATED TO ARTICLE 23 LEGISLATION? WHAT IS THE RELATIONSHIP BETWEEN THESE ENTITIES IN HONG KONG AND THEIR COUNTERPARTS IN MACAU? As noted above, while the central government might direct the Hong Kong government to resume work on Article 23 and might make general suggestions with regard to content, the actual drafting would be done, per standard practice, by the office of the Solicitor General under the Department of Justice. (The Solicitor General's Office drafted the 2002-3 bill, and then-Solicitor General Robert Allcock took the lead in responding to the various challenges to the legal merits of the bill posed by lawyers in the pan-democratic camp.) Many of the elements of the 2003 bill were drawn from existing Hong Kong legislation, and SAR officials made frequent reference at that time to related common law legislation such as the UK Official Secrets Act. ¶7. (C) Since Macau is not a common law jurisdiction (it follows the civil legal tradition of Portugal and many other EU countries),we expect little coordination between Macau and Hong Kong government agencies in drafting. Beijing runs the two SARs separately on matters excepting regional coordination, and would not normally suggest Macau guide Hong Kong. For its part, Hong Kong would judge its legislative and legal institutions to be well in advance of Macau's (correctly, in our view),making Macau's example of little use. ¶8. (C) WHAT IMPACT HAS MACAU'S PASSAGE OF ITS NEW NATIONAL SECURITY LAW HAD ON THE GOVERNMENT, PEOPLE, POLITICAL PARTIES, AND POLITICAL ACTIVISTS IN HONG KONG? Operationally, none. Perception-wise, a great deal. Hong Kong activists previously have not concerned themselves with developments in Macau. They would not be doing so now if not for the fact that some of them fear passage of Macau's Article 23 legislation will prompt Beijing to push Hong Kong to do the same. Others may not think the SAR government will try to pass Article 23 soon, but want to put down a marker about just how great the opposition to Article 23 would be. ¶9. (C) The law under which Macau has recently denied entry to Hong Kong pan-democratic legislators and activists pre-dates Article 23. However, Macau's action has been a great help in the pan-democrats' "negative advertising" campaign against Article 23. Ironically, the conventional wisdom among many observers had been that, since Macau poses far fewer political challenges to the Mainland than Hong Kong, the implementation of Macau's law, at least in the initial stages, would be particularly lenient, so as to illustrate that Hong Kong's fears over Article 23 were misplaced. If indeed that was the goal, the travel ban has done much to undermine that effort. ¶10. (C) WHAT APPROACH IS THE TSANG ADMINISTRATION TAKING TO ITS CONSTITUTIONAL REQUIREMENT TO PASS NATIONAL SECURITY LEGISLATION? TO THE EXTENT BEIJING IS ATTEMPTING TO INFLUENCE THE HONG KONG POLICY DEBATE OVER ARTICLE 23, WHAT LEVERAGE DOES THE HKSARG HAVE OVER BEIJING IN DETERMINING THE WAY FORWARD? As of this moment, the SAR government has shown zero interest in resuming discussion over Article 23. We believe they recognize there is no political gain to be made by re-introducing the bill at this time. For now, the CGLO has publicly backed the SAR government in not re-opening the Article 23 debate in the near term, and none of our contacts have suggested there is any push from Beijing to do otherwise. That said, if Beijing issued an order, we would expect the SAR government to comply without serious opposition. The only effective "loyalist" opposition would come from pro-Beijing politicians with sufficient political will and influence to make the case to Beijing that Article 23 is an electoral liability for pro-Beijing parties. Even so, if Beijing is dead-set on passing the bill, we do not see anyone in Hong Kong so influential that they could walk Beijing back. ¶11. (C) On the assumption Beijing still wants Article 23 passed in Hong Kong sooner rather than later, two scenarios are being discussed here. The more pessimistic scenario holds that, assuming the economy more or less recovers in the near future, Beijing will ask the lame-duck Tsang administration to pass the bill before leaving office. In this thesis, the Tsang administration at that point would have no further need of political capital, and its sacrifice would allow the next administration to start with a clean slate. While plausible, the flaw in this scenario is the gift it would represent to the pan-democratic camp in the 2011 District Council and 2012 Legislative Council elections, with concurrent harm done to the electoral prospects of the pro-Beijing camp. Another scenario holds that the newly-elected Chief Executive in 2012 would quickly push through Article 23 in the hope that, since further democratic reform should occur on his or her watch, s/he could undo the political damage. ¶12. (C) For their part, mainstream pan-democrats have never disputed that Hong Kong must pass an Article 23 bill. Their concerns have centered on the content and timing. Given their druthers, they would argue only a Chief Executive and Legislative Council elected by universal suffrage (expected in 2020 at the earliest) would have the mandate to complete this work. Other observers have suggested Beijing might expect a completed Article 23 law as a prerequisite for elections by universal suffrage. ¶13. (C) WHAT WOULD PROMPT BEIJING TO INSIST HONG KONG HASTILY PASS A NATIONAL SECURITY LAW? Nothing which we see from the Hong Kong perspective at this time. If anything, the electoral performance of pro-Beijing parties even in direct elections has improved over time, which may have reduced Beijing's fears it might face an opposition-controlled legislature. While we don't doubt Beijing has the will to force passage through should it decide it must, a decision taken in haste would involve tremendous collateral damage for its allies in Hong Kong. ¶14. (C) WHAT EXISTING HONG KONG LAWS ADDRESS CONCERNS ASSOCIATED WITH THOSE IN ARTICLE 23 OF THE BASIC LAW? IN PARTICULAR, HOW WILL NATIONAL SECURITY LEGISLATION IMPACT FOREIGN GOVERNMENTS' INTERACTION WITH THE HONG KONG GOVERNMENT OR THEIR ACTIVITIES IN THE HKSAR? Other than noting that the vast majority of the provisions of the 2002-3 bill were based on pre-existing laws in Hong Kong, it is difficult to answer this question absent a new text to examine. Given the controversy attached to the last attempt to pass the bill, at a minimum some level of cosmetic change to the 2002-3 bill would be politically obligatory for the government. Otherwise, the pan-democrats would be able to brand the government's new proposal as a dusted-off version of the bill which brought out half a million people into the streets in 2003. DONOVAN