According to the Government, the reference to the subsidiary laws of the Macao SAR guarantee the rights and freedom of expression of residents. The general secretary of the Macau Lawyers Association understands that the concerns of the population “have no reason to exist”. Certainly, doubts and fears remain. Deputy Ron Lam realizes that despite the law being clear and the legislative process having been one of the most transparent, “society’s greatest concern is whether there will be abuses in the future application of the law”
The approval in the specialty of the proposed law took half an hour and there was no contestation. In the declaration of vote, deputy Ron Lam U Tou said he hoped that the diploma “does not jeopardize freedom of expression”.
To PLATAFORMA, he says that the population’s fears regarding the Law cannot be attributed to a possible lack of transparency in the process. The deputy says that the then proposed law, “compared to many other government laws”, was even conducted in a “very detailed” way.
However, he admits failures in communicating with the public, mainly due to “mentality” issues. Not shying away from blame, he says the Assembly failed to balance protecting national security and people’s concerns.
“The Government has done much more throughout the legislative exercise (…) but has the additional effort been enough to address concerns? I think there is a lot of room for improvement in this domain,” he adds.
For the deputy, the law is necessary, “to adapt to that of Hong Kong and the interior of China”, in addition to having a clear objective: “Those who intend to violate the Law will not dare to do so ”.
However, he cautions that anyone who does not have this intention or intent “should not be caught by the Law inadvertently”.
To our newspaper, the deputy insists that public education continues to be extremely important, “especially with regard to the definition of terms”.
“It needed to reach the same level of defense as the respective laws of China and the Hong Kong Special Administrative Region”, reinforces Calvin Chui, partner at the law firm Rato, Ling, Lei & Cortés. The jurist adds that the implementation of this law in Hong Kong “perfected and developed the ‘One Country, Two Systems’ policy”.
Subsidiary laws protect principles of the Macao SAR
The Government says that the law had to be amended because it has not yet been able to play “a guiding and encouraging role in the tasks of the MSAR related to the defense of national security”.
Calvin Chui agrees. “This is intended to become a basic, principal and essential law in the legal system for the defense of state security in the Macao SAR”.
When the proposed law was delivered to the Permanent Commission, it asked the proponent to clarify how the guarantee of the legitimate rights and interests of residents and other persons under the proposed law would materialize.
At that time, the Government replied that the changes were made based on two main principles: “respect tradition and “guarantee human rights”.
In defense of this position, the proponent said that “most of the criminal procedural system (…) was created with recourse to other existing laws”.
On the other hand, it mentions, for example, that for the creation of the crime of “instigating or supporting sedition”, “in addition to strict compliance with the criminal law of Macau”, everything will be done in accordance with “the legislative theory, the legislative precedents , legislative models and legal techniques, seeking to achieve a balance between the repression of crimes and the guarantee of freedom of expression for residents”.
This practice is legitimized by Art. 14 of the Law, “Subsidiary Application”, which establishes that “in everything that is not specifically regulated in this law, the provisions of the Penal Code, the Code of Criminal Procedure, the Code of Administrative Procedure , the Code of Litigation Administrative Procedure and Law No. 10/2022”.
This was even assured to the president of the Macau Portuguese and English Press Association (AIPIM), José Miguel Encarnação, when he met with the Secretary for Security, Wong Sio Chak. “We were assured that there would be remission to the penal framework that already exists in Macau. In our case (journalists), the Secretary for Security assured us that the law also refers to the Macau Press Law.” Therefore, he reiterates: “Our great concern is that the Press Law remains unchanged.”
Between the law and its application
The amendment to the State Security Law has concerned the population and associations. There are fears that freedom of expression or association will be compromised by the new law, but also of its application, especially if it is used in favor of a severely patriotic attitude.
The Macau Journalists Association stated that “working as a journalist in Macau will be a high-risk profession”.
One of the articles that raises doubts for the AJM is article 3.º – A of the law, which regulates the instigation or support of rebellion. “In the future, the crime of incitement will include: expressing different political opinions, discussing the possible development of Macao’s political system, questioning or criticizing the applicability and enforcement of the law on safeguarding national security, and criticizing policies or officials? What is the border between criminal and non-criminal conduct in these situations?”, questioned the association in an opinion taken to the AL commission that analyzed the diploma.
At issue is also the fact that the crimes of secession (Art. 2.º) and subversion against political power (Art. 3.º) can now be committed by “any illicit means” and not only by “violent means”, as previously established. Thus, the spectrum of illicit actions that can be considered a crime increases.
To the commission, the proponent justified the change of term since the “model of this crime shows a non-violent tendency”.
He also replied to the commission that there is no legal definition of the concept of “illegal means” because these “will always continue to change according to the evolution of the times”.
In Law No. 2/2009, Article 7.º had the following wording: “Establishment of links by Macao political organizations or associations with foreign political organizations or associations for the practice of acts against the security of the State”. Now, it becomes “Establishment of links with organizations, associations or individuals outside the Macao SAR to carry out acts against the security of the State” (Art. 5-A). That is, the words “political” and “foreign” were removed. “By removing the words effectively, their scope of application is adjusted. The old provisions failed to effectively respond and sanction individuals or organizations that liaise with external non-political organizations or associations and plan activities against the security of the State and the Macao SAR,” explains Chui.
“Frankly speaking, I think the general public is very far from what is at stake. I know that people are concerned that freedom of expression will be compromised. In my opinion, the entire framework of the National Security Act is certainly more regulated than before, and its procedures have effectively created new offences. But, in fact, the real starting point for criminalization is the violation of the corresponding criminal law and not simply criminalization by speech”, notes Ron Lam.
“The crime is more rigorous, for now it refers to ‘any illicit means’ and not ‘violent means’, but when we discussed the details, the presentation also underlined that only when the existing criminal law is violated will there be a conviction”, he says, adding that “only if someone directly and openly helps to commit a crime provided for in Art. 3.º-A is what will be considered as ‘incitement to rebellion’”.
Even so, he understands what really worries associations and residents. “It is not ‘criminalization by words’ that is the community’s greatest concern, but whether there will be abuses in future law enforcement.”
During the work of the commission and even in the sessions of the Legislative Assembly, Wong Sio Chak reiterated that there must be willful intent for it to be considered a crime in the eyes of the National Security Law. “If there is no intent, it is not a crime”, he replied to a practical case posed by Ron Lam in the context of “Violation of State secrets” (Art.5.º).
Also in the case of the crime of secession, the Government made it clear to the commission that there must be malice on the part of the agent.
The general secretary of the board of the Macau Lawyers Association, Oriana Inácio Pun, argues that there is no reason for the population to be afraid of the new law.
“In my opinion, these concerns are unfounded. In fact, when the State Security Defense Act was passed, there were voices expressing similar concerns. And time ended up demonstrating how unfounded they were: after more than 10 years in force, fortunately, this Law had no application, and during all these years, Macao residents continued to live without any restriction of their rights, freedoms and guarantees.”
“As already explained in the consultation document regarding the revision of this Law, the crimes of secession, subversion and sedition are foreseen in several countries, in similar terms”, assures Pun.
