It seems uncontentious to suggest that Macao’s Law on Safeguarding National Security (LSNS) should move with the times, and be reviewed regularly amid heightened geopolitical rivalry in the Asia-Pacific region, so that the city can fully discharge its responsibility for safeguarding national security.

Hong Kong’s historic passing of the Safeguarding National Security Ordinance (SNSO) on March 19 has attracted the attention of politicians and legal experts in Macao. Fully aware of the need for Macao to update its national security law to keep pace with the changing external environment, one of the co-authors of this article, Lei Wun-kong, recently highlighted the important reference value of the SNSO for Macao.

In view of the increasingly complex international environment, Macao has faced various challenges in safeguarding national security in the past 13 years. Although Macao passed its local national security legislation (LSNS) in 2009, it has lagged behind in the new era. In May 2023, an amendment to the LSNS was passed. As Han Zhu has pointed out, the LSNS was simplistic and considerably more liberal, and had never been invoked to charge any individual (Macau and Hong Kong: Convergence or Divergence? An Analysis of the 2023 Macau National Security Law).

According to Tian Feilong, a Hong Kong-Macao-Taiwan affairs expert of Beihang University in Beijing, the amendments to the LSNS have made corresponding updates with reference to the National Security Law for Hong Kong (NSL), promulgated in June 2020. The experience of Hong Kong’s legislation and the legal means to safeguard national security have served as a reference and inspiration to Macao.

It is important for Macao to make the types and elements of espionage activities consistent with those of the SNSO and national laws, as well as to establish a counterespionage law. Moreover, Macao may consider extending the special procedures, preventive measures, and emergency provisions added to the amended LSNS to cover part or all types of terrorist crimes

The Macao Special Administrative Region government said the 2023 amendments were designed to match the new features in similar legislation on the Chinese mainland and Hong Kong, with an emphasis on enhancing prevention of foreign interference. With only 15 articles, the  original LSNS laid down seven major crimes, including treason, secession, subversion, theft of State secrets, and foreign collusion, with prison terms of up to 25 years. The amended LSNS has been expanded to 43 articles, significantly widening its scope. The new LSNS retains the seven original offenses and introduces a new offense of instigating or supporting rebellion (Article 10). Secession has been expanded to cover nonviolent acts.

It is noteworthy that by virtue of the amendments, subversion has been stretched to criminalize acts of attempting to overthrow or undermine the basic system of the People’s Republic of China, which is similar to Article 22 of the NSL. The amended LSNS introduces criminal procedures and preventive measures similar to those found in the NSL, and the Implementation Rules of Article 43 of the NSL. Lei Wun-kong has pointed out that for preventive detention, the amended LSNS adopts a higher preventive standard established by the NSL, since any suspects charged under Article 25 of the amended LSNS would be subject to preventive detention measures, making those serious national security crimes (as referred in Article 25) nonbailable offenses, and these measures must be applied.

One does not need to be a genius to see that the forthcoming presidential election in the United States will bring new complexities to the complicated Sino-US relations. Responding to the promulgation of the NSL, the US imposed sanctions on Chinese officials and Hong Kong SAR leaders. If Donald Trump returns to the White House, he will probably impose a 60 percent tariff on all Chinese goods, revoke the most-favored-nation trading status, and hobble the electric vehicle industry of China. Therefore, we see strong substance in Chief Executive John Lee Ka-chiu’s argument that we need new laws to equip the city with a “stronger door” and “effective lock” to protect itself. Like Hong Kong, Macao should study and consider taking additional measures to make the LSNS a better watchdog.

Providing an inspiration and valuable reference for Macao, the SNSO is a necessary, reasonable and well-balanced piece of legislation benefiting from a deep well of common law wisdom. Its drafting process has provided an insight into the commendable efforts made by Hong Kong’s Security Bureau to make reference to national-security-related laws of six major common law jurisdictions. In response to the allegation that some key terms of the SNSO are vague, our think tank has repeatedly stated that the term “national security” is not defined in the United Kingdom’s National Security Act 2023. The above allegation has fallen on frosty ground because of double standards.

The controversy over the subsidiary legislation in relation to harsh sanctions targeting absconders should be examined with reference to similar practices in other jurisdictions. US laws allow passports of absconders to be canceled and rights suspended if they are wanted on a criminal charge or if a court order has been issued to ban them from fleeing.

Also noteworthy is the fact that penalties for offenses under the SNSO are comparable with those of similar jurisdictions around the world. Many chambers of commerce, business groups and others issued strong positive statements soon after the SNSO was passed, giving credit to the law for creating a safe and stable business environment (South China Morning Post, March 20, 2024). There is also a widely held belief that the SNSO has met all applicable international conventions and standards on human rights protection. The above analysis clearly shows that the SNSO has important reference value for Macao, for example, by specifying all types and elements of crimes such as espionage. 

It is important for Macao to make the types and elements of espionage activities consistent with those of the SNSO and national laws, as well as to establish a counterespionage law. Moreover, Macao may consider extending the special procedures, preventive measures, and emergency provisions added to the amended LSNS to cover part or all types of terrorist crimes.

Lei Wun-kong, is a lawyer based in Macao and litigation and practice senior consultant of Chinese Dream Think Tank.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank, and a district councilor.

The view do not necessarily reflect those of China Daily.