42
Opinion
Jorge A. F. Godinho
Assistant Professor, Faculty of Law, University of macau
jg.macau@gmail.com
State secrets vs press freedom
T
He more controversial issue in the Article 23 proposal as secret is not sufficient to afford criminal law protection.
is the crime of theft of State secrets. This proposed We believe that the crime should explicitly require a firm
provision sits at a crossroads between the need to afford knowledge, and therefore should exclude the subjective state
penal protection to state secrets on the one hand and to known as ‘eventual intention’, ‘dolus eventualis’ or recklessness.
protect freedom of the press on the other. If journalists are not This exists when it can be demonstrated that a person hesitated
sure as to whether to publish, due to legal concerns, they may or wondered whether a state secret was involved, and it crossed
prefer not to. A correct balance should be found, now in the the persons’ mind that that indeed could be the case.
law and later in judicial decisions. The person realised that a crime could occur, accepted
The proposed crime is intended to protect the secrets that risk, and went ahead with the forbidden conduct. In the
of the mainland. The concept of a protected state secret case of journalists, this would always occur if a journalist
arises from the interplay of three provisions of the draft, each merely wondered whether a state secret was at issue and
contributing a different angle of analysis. decided to proceed with publication anyway.
First, in court cases the central Government defines The scope for a possible shadow on press freedom is
what is a national state secret by means of a certificate to be crystal clear, given that a journalist will almost never be able
obtained by the macau courts via the chief executive. If the to obtain a response from state officials in order to clarify
matter, according to the certificate, is not classified, then no the matter. The journalist will be left in doubt, inclined not to
state secret is involved, and the case should be dismissed. If publish, and it is important that the law does not contribute to
there is a classified secret, other questions need to be asked or induce to self-censorship.
in order to determine if a crime has been committed, as the In order to deal with this issue in a satisfactory manner,
certificate certainly is not a final determination of criminal our proposal is to require direct intention or necessary
responsibility. There cannot be retroactive classifications intention, and to expressly exclude ‘eventual intention’. This is
regarding state secrets. not without precedent, as various crimes in the Special Part
The next question is whether the state secret is protected of the Penal code take this route; see eg, article 331, which
under the law of macau, as not every secret matter in the uses the language ‘with the intention or in the knowledge of’
mainland is granted penal protection in the macau SAr. State (‘com intenção ou com consciência de’).
secrets protected by this law may refer to confidential matters The introduction of a defence of public interest was proposed
in three fields: defence - such as military equipment and its in Hong Kong. The macau proposal is silent on the mere
deployment; external relations - such as diplomatic issues; discussion of the matter. This is regrettable, given that this
and other matters related to the links between the central defence does exist in the macau Penal code, in articles 174(2)
authorities and the macau SAr, under the basic Law. The (a) and 186(2). These provisions clearly are intended to enable
scope of latter category — links between central authorities the press to report matters that may involve issues of privacy or
and macau — is quite unclear, which means that the provison honourability, and discharge its basic function of ensuring the
may therefore be unconstitutional. existence of a free public opinion, denouncing corruption and
It is not stated with any degree of clarity, which matters illegality, the misuse of public funds, among many other matters
have a bearing on the relationship between the central of general interest to the community at large.
authorities and the macau SAr. This lack of a precise Our proposal is that the introduction of this defence should
definition obviously cannot afford a predictable and be carried out.
controllable yardstick for the application of criminal penalties. Another point connected to this, and one which has not
It is a fundamental principle of criminal law that crimes should yet been highlighted in the debate, relates to the implications
be clearly understandable. of the proposal for civil servants. Indeed, the theft of State
Third, the revelation of the secret must effectively secrets also covers persons subject to special duties of
endanger the independence, unity, integrity or security confidentiality, and it covers intention as well as negligence.
of the Prc as a whole, and this should be demonstrated The penalties are quite severe, and may harden a culture of
convincingly in every single case. A mere allegation of such non-disclosure by civil servants.
an outcome is not sufficient. In this manner, the substantive If these amendments are introduced, and properly applied,
scope of the state secrets that are protected by criminal law a satisfactory balance between the conflicting interests of
may be narrowed. The fact that a topic was formally classified state secrecy and press freedom will be achieved.
december 2008
Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96  |  Page 97  |  Page 98  |  Page 99  |  Page 100  |  Page 101  |  Page 102  |  Page 103  |  Page 104  |  Page 105  |  Page 106  |  Page 107  |  Page 108  |  Page 109  |  Page 110  |  Page 111  |  Page 112  |  Page 113  |  Page 114  |  Page 115  |  Page 116  |  Page 117  |  Page 118  |  Page 119  |  Page 120  |  Page 121  |  Page 122  |  Page 123  |  Page 124  |  Page 125  |  Page 126  |  Page 127  |  Page 128  |  Page 129  |  Page 130  |  Page 131  |  Page 132  |  Page 133  |  Page 134  |  Page 135  |  Page 136  |  Page 137  |  Page 138  |  Page 139  |  Page 140  |  Page 141  |  Page 142  |  Page 143  |  Page 144  |  Page 145  |  Page 146  |  Page 147  |  Page 148