The Macau SAR Government has introduced for public consultation a draft on the enactment of Article 23 of the Macau Basic Law or, more properly, the “Defense the National Security Law” (Draft).
The Hong Kong Journalists Association believes that whether or not the Macau legislature passes this Bill is of no relevance to Hong Kong and, therefore, should not be followed by the Hong Kong SAR Government in the foreseeable future. Following in the footsteps of Macau will only accentuate the differences within our community and sharpen conflicts at a time when Hong Kong is facing the global economic crisis. We believe that further divisions within our community will adversely affect revival of our economy.
We believe that there is no necessity to move in tandem with Macau on this issue. Both the Hong Kong and Macau Basic Laws specifically requires that each of the two Special Administrative Regions “should enact laws on its own”, neither “by them together” nor “at the same time”.
Additionally, the legal systems, the outlook and the interests of Hong Kong and Macau people are completely different. The process and timing of enactment of such a law for Hong Kong will have to be different as well.
The Hong Kong Journalists Association continues to hold the view, first expressed on 24 September 2002 that: “(It) views with regret the decision by the Government of the Hong Kong SAR to publish the consultation paper for the enactment of Basic Law Article 23. The HKJA has consistently held that there is no basis for rushing ahead with enactment, considering Hong Kong’s stable political environment and the absence of any threat to state security. Article 23 prohibits such acts as treason, secession, sedition, subversion against the Central People’s government and the theft of state secrets. Secession and subversion are not considered crimes in Hong Kong and other common law jurisdictions. The introduction of these new concepts inevitably would adversely affect freedom of expression.”
To ensure adequate and continued freedom of expression and freedom of the press as well as continued protection of Macau correspondents of Hong Kong’s news media and Hong Kong reporters who may go to Macau for reporting purposes, it is our view that some revisions are necessary to the draft newly-released for public consultation by the Macau Government. For instance we believe there is a need to be more specific in Article 6 of the draft (theft of state secrets) by adding “national and public interest” as “reasonable excuse” or “reasonable immunity” to ensure a proper balance between the needs of national security and freedom of expression as well as freedom of the press.
Other articles and words need to be revised to, at least, include:
1. Proper definition of “publicly and directly” in Article 5 (prohibition of sedition);
2. Proper definition of “state secret” in Article 6 (prohibition of theft of state secret);
3. Proper definition of “preparation behavior” in Article 9 (preparation behavior);
4. More restriction to “not open trial” (secret trial) concerning criminal process of Article 6 and referred to again in Article 13.
Because Articles 141 to Article 176 of Portuguese “Code of Penalty” had lost their effect at Macau after Dec.20 of 1999, HKJA is not against the view that there is “necessity” to enact “Defense National Security Law” on its own in the legal system of Macau, but it is not a “pressing social need.” Therefore the Macau SAR government should allow more time than 40 days for broader and deeper consultation. Do not set a deadline to pass this bill at or before Dec.20 of 2009, but allow the general public more time for fuller consideration of the implications of such a bill.
(12/11/2008)
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