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