Macau Government Passes Controversial National Security Law

The Macau Special Administrative Region (SAR) passed a new National Security Law on February 25, 2009, as it was required to do under Chapter II, Article 23 of the Basic Law of the Macau Special Administrative Region of the People's Republic of China that was adopted in 1993 and went into effect in 1999. The new law includes provisions detailed below regarding treason (Article 1), secession (Article 2), subversion (Article 3), sedition (Article 4), theft of state secrets (Article 5), and acts by foreign political organizations or Macau groups that endanger state security (Articles 6 and 7). The length of prison terms for state security crimes include 10 to 25 years for treason, secession, and subversion, 1 to 8 years for sedition, and 2 to 15 years for stealing, collecting (citan), procuring, or making public state secrets. According to a July 9, 2003, New York Times article, the proposal of a similar law in Hong Kong led to demonstrations by approximately 500,000 people on July 1, 2003, after which the Hong Kong government withdrew the bill.

Macau's National Security Law reflects some attention to public suggestions made on the initial bill during a 40-day consultation period and legislators comments on the revised bill (Chinese―revised bill shown side by side with original version in the Consultation Report of the National Security Law [draft], pp. 53-68). However, the final law leaves several terms undefined―with possible implications for Macau citizens' freedoms of expression and association. Moreover, as described below, concerns remain over the law's failure to clarify the extent to which the mainland's framework for state secrets will extend to Macau. Finally, the law includes in its definition of state secrets, "other related matters having to do with the relationship between central authorities and the Macau SAR as set forth in the Basic Law of the Macao Special Administrative Region of the People's Republic of China." It is unclear what implication this wording will have on the transparency with which the "one country, two systems" relationship between the mainland and Macau will be handled (under the Basic Law of the Macau Special Administrative Region of the People's Republic of China, this relationship is to remain in effect until 2049).

Implications for Freedom of Expression and Association

While recognizing the need for national security legislation, citizens also expressed concern that the law's unclear definitions could impinge upon the freedoms of association and expression in Macau, according to the summary of suggestions and comments in the Consultation Report of the National Security Law [draft] compiled by the Macau SAR government (p.18). For example, the International Trade Union Confederation (ITUC), in its November 29, 2008, submission to the Macau government during the public comment period, expressed apprehension that the law could contravene the International Labor Organization's conventions 87 and 98. In particular, it could be in breach of Article 3 of Convention 87, regarding the right to organize activities and the right of non-interference by public authorities, as well as Article 11, regarding the obligations by members of the ILO to "take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize." The ITUC submission pointed out that in articles 2 and 3 regarding respectively secession and subversion, the terms "other serious unlawful means" and "acts against the security of transport and communications" are not clearly defined. The group argued the ambiguity would allow officials to charge citizens with subversion or sedition, as they are on the mainland, when citizens engage in peaceful, mass demonstrations that temporarily disrupt traffic flows.

In a June 11, 2009, public statement, Amnesty International stated it was concerned that no state raised the issue of Macau's National Security Law during the Universal Periodic Review Working Group review of China, noting that the law's provisions are "vague and broad" and could be used to "imprison individuals merely for exercising their rights to freedom of expression and association."

In addition, according to a February 6, 2009, Xinhua article, reprinted in the People's Daily, an October 23, 2008, China Post article, and a January 5, 2009, Xinhua story (via Sina.com), some lawmakers and citizens in Macau expressed concern regarding the clarity of the definition of "preparatory acts," which are criminalized in the provisions related to treason, secession, and subversion. The China Post article quotes one lawmaker as saying that "if officials don't like what they see, they may consider it 'preparation'...there isn't a clear definition."

State Secrets and Their Determination, and the Macau SAR-Mainland Relationship

Article 5 of the law criminalizes the act of stealing, collecting (citan), procuring, or making public state secrets, which "endangers or harms the independence, unity, or integrity of the state or its internal or external security interests." Article 5 defines "state secrets" as "documents, information, or objects" meeting two general requirements. The first is that "it has already been confirmed" that the document, information, or object "should be given state secret [status]." The second is that the document, information, or object must "involve national defense, foreign relations, or other related matters having to do with the relationship between central authorities and the Macau SAR as set forth in the Macau SAR Basic Law."

The language of Article 5 appears to limit "matters having to do with the relationship" between the Chinese central government and Macau that would be considered a state secret to only those matters associated with national defense or foreign relations, and the stealing, collecting, making public, or procuring of which would "harm the independence, unity, or integrity of the state or its internal or external security interests," as a Macau scholar points out in a November 2008 article (pp. 12-17). Article 5 does not, however, specify what matters would be considered "related" to national defense or foreign relations. Nor does the article define the terms in the phrase "harms the independence, unity, or integrity of the state." The concern is that officials could interpret "related" and other terms broadly to restrict the public's access to information regarding relations between Macau and the central government. Therefore, the implications of Article 5 on the transparency with which the "one country, two systems" relationship between the mainland and Macau will be managed is unclear.

In addition, the new law appears to introduce ambiguity regarding the authority to issue certification of state secrets in relation to document(s), information, or objects, which raises questions about the extent to which the mainland's framework for state secrets will extend to Macau. Article 5 stipulates “if needed, judicial organs may obtain from the [Macau] Chief Executive, or may go through the [Macau] Chief Executive to obtain from the Central People’s government, a document that will certify whether an aforementioned document, information, or object was previously classified as a state secret." The law does not indicate when the Chief Executive or when Beijing will be responsible for issuing certification of a state secret, which seems to call into question the extent to which the mainland's framework for state secrets will extend to Macau. As a Macau scholar points out in a November 2008 article (p. 13), Macau does not currently have its own state secrets law.

Amnesty International asserted in a March 2, 2009, press release that if Beijing uses the same criteria for determining state secrets in Macau as it does on the mainland, the practice could impact the rights of Macau citizens, including the right to free expression. According to a June 2007 Human Rights in China report, the state secrets framework on the mainland is opaque, definitions of state secrets are vague, and state secret designations have been used to keep human rights and political cases away from public view.

Prohibitions Against Acts by Macau and Foreign "Political Organizations" That Harm National Security

Article 6 criminalizes the behavior of "foreign political organizations or groups," if that behavior is found to endanger national security. Article 7 criminalizes the establishment of links by Macau political organizations and groups with foreign political organizations and groups for the conduct of acts found to endanger national security. "Links" in this provision include, among others, "the receipt of instructions, orders, money, or valuables from foreign organizations or their agents," and "the collection, preparation, or public dissemination of false or clearly distorted news." Terms in the provisions including, "endangering national security," "political organizations or groups," and "dissemination of false or clearly distorted news," remain undefined. In its submission to the consultative process, ITUC stated its apprehension that Articles 6 and 7 [in the final law] could be utilized by Macau authorities to prohibit Macau individuals or groups from associating with labor unions, international organizations, and foreign civil society groups. Authorities could also invoke these provisions to prohibit Macau organizations or groups from associating with human rights group or accepting democracy or rule of law assistance.

In addition, Article 8 allows for daily fines to be levied against sentenced organizations (for crimes outlined in Articles 3 through 7), which could have the effect of bankrupting civic groups. The fines are levied on a daily basis, i.e., Macau patacas $100 (US$12) to $20,000 (US$2,550) a day for a minimum of 100 days and a maximum of 1,000 days (Article 8).

More information on China's state security provisions can be found in the CECC 2009 Annual Report and the 2008 Annual Report. For more information on the attempt to pass a National Security Bill in Hong Kong, see Section VIII―Recent Developments in Hong Kong, in the CECC 2003 Annual Report. More information on the Universal Periodic Review of China may be found here.