Proposed Revision of The National Security Law in Macau

Certain elements of the proposals are more draconian than in the Hong Kong national security law

The Grand Lisboa casino and other buildings are seen in Macau, on Dec. 19, 2019, on the eve of the 20th anniversary of the former Portuguese colony's return to China. (Reuters)

The Macau government announced on Aug. 22, the consultation text for revising the national security law (NSL), suggesting the need “to achieve the same effect in maintaining and safeguarding national security to be similar to that of mainland China, and the Hong Kong security law.”

However, criticism abounds that it contains clauses showing the future Macau version could be even harsher than its Hong Kong counterpart.

Jason Chao Teng-hei, the former chairperson of the New Macau Association, pointed out that after the Chinese Communist Party enacted the Hong Kong NSL in 2020, Macau had been on full alert and ready to start reviewing its own version of NSL.

However, the reason for the delay until now is seen to be deliberate to avoid it coming up before the United Nations Human Rights Committee meeting reviewing the situation in Hong Kong and Macau. If they did it earlier, “they would just be providing more evidence for the international community to look at.” A situation that they wanted to avoid for sure, he said.

The Macau government announced on Aug. 22, 2022, the consultation text for revising its "National Security Law.” It seems to have more draconian clauses than the Hong Kong version. (Macao Government website)

Avoid the UN Review

In 2003, the Hong Kong government attempted to enact the National Security Ordinance in accordance with Article 23 of the Basic Law but failed. Six years later, in 2009, Macau enacted the national security law according to Article 23 of its own Basic Law.

However, Chao said that Macau was in some way “showing to Hong Kong” back then, describing the law as weak and being “stripped of its teeth (very lenient in enforcement).” For that purpose, the Macau NSL made a lot of references to the European national security laws, where the threshold for criminalizing a person is extremely strict. Based on the EU protocols, strong elements of violence must be involved before one could be charged and prosecuted.

As the current Macau NSL is based on those EU criteria, it stipulates that only when violent or serious illegal acts are committed can the “crime of secession” be established as prima facie proof for making charges. But all indications this time suggest the Macau government will propose a revision to cover non-violent means. When that is established, previous trivial cases like paralyzing the Legco function or blocking the road could become behaviours that may violate the law.

“Actually, Macau did not even need to enact Article 23 at that time (in 2009), because Macau’s Criminal Code already covered the relevant content,” Chao said. Even before 2009, when some people called for an “armed uprising” as just a slogan without real action, it was already a criminal offence liable to arrest following the then Criminal Code.

Non-Violent Actions Can be Criminalised

Chapter 1 of “Crimes against the Territory” in “Special Part, Title V” of Macau’s Criminal Code already includes “Crimes against the political, economic, and social systems.” In the current consultation text, the Macau authorities further described this as ”an important legal norm for safeguarding the security of Macau. Together with the national security law, they constitute a system safeguarding national security and the security of Macau.”

Chao continued to point out that in the current national security law,“ even if it is inciting, and splitting the country, it still needs to involve elements of violence. ”If you use peaceful means such as calling ‘Taiwan independence,’ strictly speaking, it is not against the current national security law in Macau because there is no element of violence involved.”

However, after it comes in line with the NSL of Hong Kong, such pretexts of violence will be removed. Then even if Taiwan’s independence is promoted in a peaceful way, it will still be considered an offence in the new Macau NSL.

Chao explained that there will be important implications from that revision. According to the previous interpretation of the Macau Court of Final Appeal on the “Disqualification (DQ)” of the Legislative Council election case, and the June 4 rally, even holding a June 4 rally would constitute an attack and trample on “the reputation, dignity, authority, and prestige of the CCP.”

No June 4 Rallies Expected

If the proposal based on the current consultation text is passed, and the interpretation mentioned above of the Court of Final Appeal, it can become an offence as the incitement to subvert state power in the revised Macau NSL. “It means it will not be safe to hold the June 4 rally legally in Macau anymore in the future.”

One part of the consultation text recommends introducing “temporary restrictions on leaving the region,” stating that “potential suspects are likely to flee before they become suspects under the law.” Therefore, it is suggested that judges be empowered to “impose necessary, appropriate, and reasonable restrictions.”

Chou described the above-mentioned proposal on the criminal procedure as not just on par with the “Hong Kong NSL,” but to a certain extent it is even “much worse.” It is all very evident that measures such as the need to submit information for national security crimes, and the “temporary restriction of leaving the region,” are all applicable even before the relevant person becomes a suspect. Chao said, “It’s definitely harsher than the NSL of Hong Kong. The meaning of ’temporary‘ in the text is overly broad. There is no deadline, and nobody knows how long that ’temporary’ period lasts.”

Chou continued to point out that under the current political environment in Macau, he wonders “Are there people or groups who will come out and voice their strong opposition to this revision? Opinions may be collected with minor revisions, but in principle, the revision requests are denied. I don’t know of any group who are bold enough to do that.”

He explained that once the amendments are in place, Macau’s political leeway “will not only be further squeezed but will also become riskier because the current national security laws in the mainland and Hong Kong both have ”infinite scope” in their authority in their terms of links with foreign countries. When it also requires those involved to submit information, he believes “there is more than enough in this law to scare everybody to become more careful in their words and deeds in future.”

More Stringent Criminal Codes

When asked if the “red terror” will be more evident and prevalent after the amendment, Chao said that democracy and freedom are not the core values ​​in Macau. “If they play no part as your core values,​you will not feel uneasy at all. You may even feel better.” Most people in Macau are more concerned about the pandemic and its impact on the economy than national security.

But there will still be some people who cherish freedom, who will then sense the problem.” He said that once the amendments are in place, the authorities can feel more “justified” to take those harsh measures such as restricting departures and denying bail.

Chou Teng-hei, now overseas, is also a director of the Hongkongers in Britain in the United Kingdom. He said that the association receives funding from the British government to assist Hong Kong people in settling in the UK through the BNO visa programme, which may be seen as “colluding with foreign forces.”

Without much hesitation, he said the administration is putting politics as their number one priority and using the law as much as they like as a tool to take out dissenting voices. He expects that if he were to set foot in Macau, the authorities would have many excuses to use the law to compromise his freedom and safety based on his past remarks.

Last month, Chao attended a meeting held by the United Nations Human Rights Committee in Geneva, Switzerland, as the convener of the Macau Research Group. During the meeting, he criticized the Macau government for not abiding by the International Covenant on Civil and Political Rights. That includes, among others, cancelling 21 persons of their candidacy rights in the upcoming Legislative Council elections on grounds they “do not uphold the Macau Basic Law and are not loyal to the Macau government.”