Macau and Hong Kong, neighbouring cities under China’s special administrative system, have national security laws, but while they serve the same purpose, the enactment of such legislation has had strikingly different consequences in both places.

Analysts and experts have said the law newly imposed by Beijing on Hong Kong was much stiffer than the one enacted by Macau 11 years ago, partly because Hong Kong is a global financial nexus with a much larger presence of international businesses and NGOs than the casino hub.

Hong Kong, a city with a population of more than 7 million, also has more vibrant political activism in society, compared to Macau, home to nearly 700,000 people.

Macau’s national security law, passed by the city’s legislature in 2009, prohibits seven crimes – treason, secession, sedition, subversion, theft of state secrets, foreign political bodies’ activities in the city, and their establishment of ties with local bodies.

Since 2018, Macau’s leader has been chairing a national security commission comprising local officials, to oversee the enforcement of the law.

In contrast, Hong Kong’s national security legislation was tailor-made by China’s top legislative body, the National People’s Congress Standing Committee (NPCSC), in June – 17 years after the city’s government shelved its bid to have its own law after about half a million people took to the streets in protest.

Hong Kong national security law full text:

Hong Kong’s new law prohibits four crimes – secession, subversion, terrorism and collusion with external forces. The maximum penalty of each offence is life imprisonment.

While the city leader must also chair a committee to oversee work on national security, the body has a Beijing-appointed adviser sitting on it. The city also now has a mainland agency tasked to oversee national security and led by three senior officials appointed by Beijing.

Given the vastly different motivations and eras in which the laws were introduced in Macau and Hong Kong and how they are being enacted, the Post takes a closer look at the processes and what these mean for both cities.

Who has the final say over the law? Beijing can wade in on “complicated” Hong Kong cases, but this is not so for Macau

As none of the 15 articles in Macau’s national security law touches on judicial powers and that of final adjudication, its courts have jurisdiction over all local cases except those related to defence and foreign affairs. This is enshrined in Article 19 of the casino hub’s mini-constitution.

But under Article 55 of the new law Beijing tailor-made for Hong Kong, the central government can exercise jurisdiction if cases involve “complicated situations” of interference by foreign forces; where the local government cannot effectively enforce the law; or when national security is under “serious and realistic threats” – implying that suspects could be extradited to the mainland.

Luo Weijian, director of the University of Macau’s Centre for Constitutional Law and Basic Law Studies, said the difference could be explained by the political structures of the two special administrative regions.

He said Macau’s executive-led governance made cooperation between the legislative, executive and judicial powers stronger than in Hong Kong, where “the separation of powers” to ensure checks and balances is hailed.

Luo said about five years ago, the United States consulate in Hong Kong and Macau had planned to set up a research centre in the casino hub, but the plan was banned by local officials.

He said this episode showed that authorities in Macau prioritised the prevention of national security threats in their work. “This explains why Beijing has more confidence in the Macau administration’s ability to curb national security threats.”

The prevalence of foreign judges in Hong Kong had also stirred concern among Beijing officials, who earlier warned that rulings should not risk being compromised by “dual allegiance”. Chief Justice Geoffrey Ma Tao-li, Hong Kong’s top judge, insisted on Thursday that foreign judges should not be excluded from cases.

Macau opposition legislator Au Kam-sun said Beijing’s trust in the casino hub’s local judiciary was also an outcome of its early plans to plant numerous mainland-born or trained judicial professionals, who were fluent in Portuguese, in Macau courts before the city’s return to Chinese rule in 1999.

Macau’s incumbent president of the Court of Final Appeal, Sam Hou-fai, was born on the mainland and practised law there before joining the Public Prosecutions Office of Macau in 1995.

“Beijing did not need to require the Macau leader to designate judges like in Hong Kong, as a significant proportion of them were trained on the mainland,” Au said.

Mainland Chinese agents have a wider reach in Hong Kong, while enforcement in Macau is localised

One striking difference between the national security legislation in both cities is that mainland officials are empowered to extend their reach into Hong Kong, beyond even the scrutiny of local laws, but enforcement in Macau is confined to local agents.

The Office for Safeguarding National Security to be set up in Hong Kong would not be regulated under Article 22 of the Basic Law, the city’s mini-constitution, which bars mainland Chinese departments from interfering in local affairs. It has been given vastly greater powers than expected, ranging from collecting intelligence, to handling cases and strengthening management of international NGOs and news agencies.

Zhang Xiaoming, deputy director of the State Council’s Hong Kong and Macau Affairs Office (HKMAO), earlier justified that the power was necessary as many cases would “involve state secrets”.

Echoing the mainland official, Wang Yu, a law professor at the Macau University of Science and Technology, believed it would be hard for Hong Kong enforcement agents to combat “complicated crimes” alone effectively without assistance from mainland agents.

“China’s counterterrorism effort over the years has equipped mainland agents with the capabilities to deal with new trends of crimes that involve advanced technologies and complicated ties with foreign forces,” he said.

“Their involvement will be beneficial to Hong Kong. But it’s not necessary for Macau as we’ve been strengthening our own police force.”

In Macau, the Legislative Assembly is currently scrutinising a bill to empower the Judiciary Police to establish four new divisions to strengthen enforcement of national security crimes, and allow authorities to conceal identities of the officers involved due to the highly sensitive nature of cases.

The proposal was opposed by Macau opposition lawmaker Sulu Sou Ka-hou, as he said the new factions duplicated duties of the judicial police. But he did not worry that mainland agents would take charge of the units.

Sou said all civil servants and police officers must be recruited from local residents as required by the city’s local law, unless the government could justify it was necessary to hire non-locals as advisers or professionals.

“So even if mainland agents are hired as police, they won’t become the majority in the new units,” he said.

Sou noted that unlike their counterparts in Hong Kong, politicians and NGOs in Macau lacked international connections. This helped allay Beijing’s concerns about collusion with external forces, he added.

“This might have made Beijing think that it’s not necessary to allow mainland agents to operate freely here,” Sou said.

Non-violent acts could constitute secession in Hong Kong, but not in Macau

Since the sweeping law was enforced in Hong Kong last Tuesday, 10 people have been arrested over secession after allegedly raising flags advocating independence during the July 1 annual rally. The march this year was banned but protesters still defied police orders.

Under Article 20 of the Hong Kong national security law, secession covers acts to separate the city from China “whether by force or threat of force”. But in Macau, the elements of violence or “grave illegal acts” must be present if one is charged with the offence.

Macau legislators said such a condition was the outcome of public consultation and repeated deliberation in the Legislative Assembly back in 2008, processes that Hong Kong lacked as Beijing directly introduced the law in the city.

After lawmakers pushed for a clearer scope of confined conduct, Macau authorities defined “grave illegal acts” as crimes against life, physical integrity and personal freedom, acts that threaten the security of transport or infrastructure facilities, or crimes involving the use of nuclear energy and firearms.

The then chief executive Edmund Ho Hau-wah also reassured the public that the law would not be used to limit peaceful expressions such as chanting slogans or writing articles criticising the central government.

Au, the veteran opposition lawmaker, said: “Officials had to clarify and concede on some points to maintain citizens’ confidence in the government.”

All fractions of the opposition in Macau have never advocated for self-determination or separatism, while the localists politicians in Hong Kong had become an emerging force in recent years.

Carole Petersen, a professor at the University of Hawaii’s William S. Richardson School of Law, wrote in a human rights report: “Simply advocating for territorial changes in speeches and demonstrations does not automatically amount to a threat to the country’s territorial integrity and national security.”

She told the Post that if any national security law was used to prohibit advocacy for multi-party democracy in China or to prohibit advocacy for a change of government in Hong Kong, that would clearly violate the International Covenant on Civil and Political Rights that applied to the city.

Life imprisonment in Hong Kong, but up to 25 years behind bars in Macau

Under the new Hong Kong law, the four offences – secession, subversion, terrorism and collusion with foreign and external forces – would be punishable by life imprisonment in grave cases.

But in Macau, treason, secession and subversion carry a sentence of up to 25 years.

Penalties in Hong Kong depend on the level of participation and severity which were vaguely defined. Persons involved would be categorised as “principal offenders”, “active participants” or “other participants” who could be sentenced to less than three years, short-term detention or restrictions.

Under Macau’s law, those “using violence or practising other grave illegal acts” could be sentenced to 10 to 25 years of imprisonment, while those undertaking “preparatory acts” for the crimes could be punished by a maximum prison term of three years.

Macau scholar Camoes Tam Chi-keung, author of The Dispute of Macau’s Sovereignty between China and Portugal, said Macau’s classification for penalties was relatively clearer with more lenient consequences, as the drafting of the law took reference to relevant legislation in Portugal and Italy.

“Drafters had to comply with standards of the European Court of Human Rights, which seeks to strike a good balance between protecting national security and safeguarding residents’ rights,” he said.

Macau’s local legislation took effect in 2009 without significant public opposition, while Hong Kong’s bill was shelved in 2003 after half a million took to the streets in protest.

Terrorism: covered in Hong Kong’s law but not in Macau’s

Terrorism has been included as one of the four major offences in the legislation for Hong Kong, but such acts were mainly regulated in a local ordinance in Macau – not in its national security law passed in 2009.

In the broadly defined offence in Hong Kong, sabotaging transport and any dangerous activities which would seriously jeopardise public health and safety are considered to be terrorism.

Hong Kong’s new rules apply not only to residents but also foreigners, according to Article 38.

But Macau’s law only confines its own residents, specifically Chinese citizens, under the treason offence which is absent in Hong Kong.

Camoes Tam, the Macau affairs specialist, noted that Macau’s national security law was drafted when Sino-US relationship was at “an all-time high” in the late 2000s, when Beijing prepared to host the Summer Olympics in 2008 and a World Expo in Shanghai in 2010.

“In pursuit of a favourable international image, there was no reason for Beijing to tighten its grip on Macau and regulate foreigners,” Tam explained.

Macau legal scholar Wang Yu also said China only began to step up efforts in fighting terrorism in 2014 when President Xi Jinping put forward his “overall concept of national security” to deal with secessionist and separatist activities in Taiwan, Xinjiang and Tibet in recent years.

“Last year’s anti-government protests in Hong Kong touched China’s nerves and drove it to do more,” he said.