Paulo Cardinal is well positioned to comment on the state of affairs of the legal system in Macau. A legal adviser to the Legislative Assembly for more than twenty years, he is also a scholar and an author, currently completing a PhD in law at the University of Coimbra. Mr Cardinal considers himself “an optimist” who says what he thinks, although he may not say all he thinks. He illustrates that idiosyncrasy with a story: “Some groups in the PRC see me as an oppositionist. I recall one time in Beijing when a uniformed gentleman pointed his finger at me in an attempt to reeducate me, shouting in Mandarin. Contrarily, during a United Nations seminar I had a gentleman from Tibet accusing me of being a dangerous agent of the PRC.”
In an interview with the Times, Paulo Cardinal comments on Ho Chio Meng’s arrest and gives his view on issues like the Basic Law, the implementation of the “one country, two systems” policy and the legal protection of non-resident workers. The Portuguese legal expert stresses that the opinions revealed in this interview reflect his own personal views and not those of the institution he works for.
Macau Daily Times – How would you describe the controversy surrounding the arrest of the former Prosecutor General, Ho Chio Meng?
Paulo Cardinal – The controversy around this case is precisely that, a controversy. It is a case of paramount relevance and, instead of having thus far a solid set of juridical or judicial answers, it is permeated by doubts, perplexities and paradoxes, at least apparently. This controversy, this ‘case’, is undoubtedly extremely important for the sake of the judicial system and of the SAR itself. And it seems complex for a number of reasons. In fact, in order to have a comprehensive approach and attempt to really understand it, we could view it as white collar crime, delving into corruption, by a rather high official – one of the principal officials, nominated by the Chief Executive and appointed by the Central People’s Government – but not only that. It is necessary, as mentioned already, to investigate whether the person also committed any of these crimes in relation to his high functions; that is, if it illegally influenced the normal progression of cases in the public prosecutor’s office. This is far more relevant and worrying in terms of the system’s credibility. Another fact that also merits contextualization is that this person was once publicly slated in the community to become chief executive. All this being said, with all the seriousness of the case exposed, it is imperative – in the name of the second system in force in Macau – to fully observe the Basic Law and core principles in force such as constitutionality, legality, presumption of innocence, right of appeal; as well as to strictly observe the laws in force and apply them in a correct manner. (…)
This, however, has not been totally achieved so far. In fact, how can one explain to the population that for some matters, the person is apparently viewed as a magistrate – that’s why the TUI was in charge of determining Ho Chio Meng’s detention. Yet in other aspects, he was not considered a magistrate, such as the non-application of article 33 of Law 10/1999 (special guarantees concerning pre-trial detention and protective custody). Who, in society, will understand this paradox? If it is only an apparent paradox and not a real one, why has no one explained it so far, especially in such a high-impact case?
MDT – Should Ho Chio Meng be considered a magistrate?
PC – I do not know everything that might provide a conclusive answer. For example, has he so far been granted the special regimen established in articles 38, 39, 40, 41, 42, 43 of Law 10/1999, ‘Estatuto dos Magistrados?’ These deal with various rights, such as the right to personal use of a vehicle, residential phone, medical assistance for him and his family, several subsidies, aspects related to official missions of representation outside Macau… If yes, that means these had been maintained after he took over his functions with the studies committee, so it seems he is still a magistrate.
We could add other reasons. For example, in disciplinary issues, article 65 states clearly that besides the acts practiced in violation of the magistrate’s professional duties, aspects of their public life that may be incompatible with the dignity required to the exercise such functions shall also be subjected to disciplinary proceedings. This presupposes an idea of viewing magistrates as more than just strictly performing their duties.
MDT – Is the Court of Final Appeal (TUI) the appropriate court to assess this case?
PC – Regarding the TUI being the appropriate court and the consequent denial of the fundamental right of appeal, I must say first and foremost that it is not understandable that the problem still exists after a decade. The uncertainty posed, and the possible or probable denial of a fundamental right of appeal, is very damaging. It creates a bad image for the system and it is difficult to accept. Nothing was done 10 years after the [Ao Man Long] case; none of the many warnings were taken into consideration. The naked truth is that the denial of the fundamental right of appeal means the disregard and restriction of a fundamental right, and of the Basic Law’s generous right of access to justice. It is a clear and direct violation of the ICCPR (14.5, and there are many international reports and decisions reaffirming this doctrine, especially in cases such as this) and of article 40 of the Basic Law. Besides, it imposes an image of a weak system in regard to the respect and safeguard of fundamental rights. The problem is not new and, I must underline, is a real problem with our current law. Something could have been done before and should have been done afterwards, especially by way of changing the Judicial Organization Law. After two revisions, in 2004 and in 2009, this problem was simply not tackled.
MDT – And how could it be tackled?
PC – For example, by changing the composition of the TUI from three to seven, or at least five. Naturally, one cannot help but wonder why we do not implement Hong Kong’s system of non-permanent judges. This new system in which the first instance of the TUI would operate via a section and on appeal, in plenary, could provide adequate answers. The fact is that the TUI is in need of change, in order to renew itself, in order to foment new approaches rather than crystallize its current one. Three judges is also a rather small number. Too small. The court’s competencies could be reinforced in some subject matters in order to better justify its increment in the number of judges. (…) All of the above means a change of the law. Nevertheless, it is my understanding that, even in the absence of a legal change (clearly the optimal solution), the courts should resort to any possible legal means to guarantee the effectiveness of the fundamental right of appeal; such as by way of resorting to general principles of law, or by directly applying international norms in force. It would not be easy, surely, but would also not be impossible.
In short, this is a situation that should be unacceptable in a system that preserves the Rule of Law. It undermines it. And this sacrifice is not necessary to effectively pursue justice and administer it. On the contrary, a system that is conceived with all minimum guarantees and that does apply [this rule], receives reinforced legitimacy in its decisions, including guilty verdicts. The denial of the fundamental right of appeal is unnecessary, inadequate and embarrassing.
MDT – Journalists and analysts have drawn two different conclusions from the case. Some say it is an example of a legal system that is working properly, while others say that it is a sign of its unreliability. What do you think?
PC – Here, and I believe anywhere, a situation like this can be legitimately viewed from two perspectives: a sign of discrediting the system or a sign that the system has ways to attack the crimes that discredit it. I believe both [arguments] carry good weight.
MDT – You argue that the concept of ‘legal entity’ cannot only be reduced to sovereign states, although that idea is favored in China. However, China is being more interventionist in the international scene, trying to regulate issues such as the use of the Internet. How can these contradictory tendencies reconcile themselves?
PC – For example, the U.S. is a global power with a strong voice in the international panorama. It doesn’t have a concept of sovereignty similar to the one that appears in China. (…) From China’s viewpoint, it seems that the concept of sovereignty is frozen in time, and is more characteristic of the past century or even the end of the 19th century. It is a whole, indivisible and inalienable concept that doesn’t follow the tendencies observed over the past century, during which time the concept of sovereignty was relativized, opening space for entities other than the States. For example, the SARs of Macau and Hong Kong are clearly new players in the field of international law.
MDT – Despite being represented in several international organizations, you advocate that Macau is a ‘legal entity’ with limited capacity. Can you explain what you meant?
PC – Yes, Macau and Hong Kong [have that capacity]. The main subject of international law is the State. As a matter of principle, a State has the full ability to impose its laws. Everything that is not a State enjoys a limited capacity. Macau and Hong Kong have those limitations. For example – and the Basic Law is very clear in this regard – Macau can’t sign defense or military treaties. But in matters related to sports, culture, labor, education and many others, Macau enjoys the capability to sign international treaties with other entities. On a quantitative basis, Hong Kong is a member of more international organizations than Macau.
MDT – But Macau and Hong Kong can take part in those organizations on a completely autonomous basis?
PC – Macau is not an independent state and there are areas where it cannot intervene. But I believe, for example, that in civil aviation – a very relevant topic for Macau – Macau signs international treaties related to routes, slots and other matters with complete autonomy. I don’t know if that really happens since I don’t work in that area. But, as a matter of principle, it has this autonomy. To give another example, Macau is a founding member of the World Trade Organization, an organization that operates under the United Nations umbrella.
MDT – You argue that the Joint Declaration on Macau (which led to the transfer of sovereignty from Portugal to the PRC) takes precedence over the Basic Law…
PC – Yes, it may sound like a strange opinion, denoting an ‘over-internationalist’ profile. I don’t mean that, since I don’t think that all international law should be above internal law, like the constitutions – although that happens in some cases, like the Netherlands. Macau is a very special situation and what I say about Macau applies to Hong Kong in 99.9 percent of cases. There were questions that, as people like to say here, were ‘historical legacies’ and that could be solved in several ways. One of those would be through war – China would very likely have the right to say ‘this is ours and we are going to take over.’ Fortunately, things didn’t happen that way. It should be noted that, at this time, the PRC was returning to the international scene and needed to demonstrate that it respected and was actively contributing to international law.
MDT – And they did it through the joint declarations with the United Kingdom and later with Portugal?
PC – By doing that, the PRC indicated that it values international law and wants to abide by it. The reversion of Macau to the PRC is not a blank cheque. The reversion meant that a Basic Law was drafted, that the MSAR was created, that the society’s idiosyncrasy would be maintained for issues of human rights, religion, and the economic and social systems. That naturally implies that, in order to abide by international law, the joint declaration must be above the Basic Law.
Furthermore, the Basic Law states its subordination to the Joint Declaration [see preamble and article 144: “No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Macau.”]. And the Basic Law’s preamble states that, ‘basic policies of the People’s Republic of China regarding Macau have been elaborated by the Chinese Government in the Sino-Portuguese Joint Declaration.’ To me, this is clear. I understand that politically it is perhaps unwanted, but it is the correct stance and I’m not doing politics here. As a legal expert and law scholar this is what I conclude. (…) This was valid in 1999 but it is also valid now, because the Joint Declaration is in force until 2049.
MDT – As it is often said, do you see the Basic Law as a “mini-constitution”?
PC – I don’t call it that, because it has a large scope. That is a euphemism used in some Chinese jurisprudence, but it is problematic: they have to say that the Basic Law must be enforced, but they don’t want to say it is a constitution, so they call it ‘mini.’ It is not ‘mini,’ it is truly a constitution as it regulates the matters as any constitution does, such as the functions of the political system, fundamental rights and the economic system. It is not a constitution in the ultimate sense – because Macau is not a state – but it works like one.
MDT – Does Macau lack a law on the exercise of fundamental rights?
PC – The panorama of fundamental rights in Macau is not unfavorable. The problem is that citizens should never take those rights for granted. It may be very hard to build a good system of fundamental rights, but it is very easy to erode them. The most relevant instrument lacking in Macau is a general law that ensures the exercise of fundamental rights.
It is one thing to say that we all enjoy the right to hold meetings and organize a demonstration, or that we all have religious freedom. The laws detail, for example, the right to hold meetings: if authorities must be informed, etc.
But when things go wrong, how can we react? (…) Law can’t be applied without restrictions. How are those restrictions made? Can they have retroactive effects, can the rights be suspended? Are there rights that can’t be suspended in any instance? Those provisions are currently nonexistent, but they existed before 1999 through the enforcement of the Portuguese Constitution, which includes principles like proportionality, the adequate use of the law and even the right to resist. If a fundamental right is being threatened, a citizen should have a lawful right to resist. Regarding proportionality, I can’t, for example, cite the right to have ease of transit to abolish the right to hold a meeting. Perhaps I can say that the meeting can’t be held at 7 p.m., but instead at 8 p.m. and use the road partially in order not to block it.
MDT – But how do you explain the proposal to establish a Trade Union Law being constantly voted down at the Legislative Assembly, although it has been gathering more support?
PC – I’m in support of a Trade Union Law because I’m for the Basic Law. I believe this is not so much a political question but rather a practical question. Lawmakers are navel-gazing. Something must change. The International Labor Organization has clearly criticized the MSAR regarding this matter. China, Hong Kong and Taiwan have Trade Union laws. The civilized world, whether it be integrated in a more capitalist or socialist bloc, have Trade Union laws. Those countries didn’t end, the structure of the state didn’t crumble, the companies didn’t go bankrupt. This is an old question. Dr Neto Valente wrote an article prior to 1999 where he states that this question is not mainly political: many lawmakers are linked to business interests and can’t dissociate themselves from those interests. I don’t know if this is true and it’s not up to me to tell, I’m just pointing out a possible explanation. We had strikes in Macau and, looking at the labor associations, I don’t foresee that [after the eventual trade union law approval] we will enter a period of endless strikes.
MDT – What’s your take on the protection of the so-called non-resident workers in Macau?
PC – From a legal viewpoint, I see a certain fragmentation of social groups that is not coherent with a democratic and pluralist society, and above all with a society that has a profound tradition of accepting people from elsewhere. That happened during World War II and in 1949, and with the ‘boat people’ from Vietnam. It seems that there is a ‘divide’ between permanent residents, non-
permanent residents and others. I see, with some concern, speeches that are ignorant, xenophobic and groundless. Obviously, Macau is a small place and is not able to receive everybody. A set of criteria must be established in order to determine who should be received. But once a person is integrated in the local workforce, he or she should be treated equally and accorded the same rights and duties as a resident.
MDT – Macau is far from achieving that.
PC – Very far away. We have cases of non-residents that contribute to the welfare system and do not benefit from it. This is inconceivable. The same applies to the right to an education. There are cases of children who have their parents staying here legally – we are not speaking of criminals – and face difficulties enrolling in local schools.
The division between permanent and non-permanent residents, according to the Basic Law, serves only one purpose: the exercise of political rights. All the rest is wrong. For example, it’s groundless that a permanent resident is entitled to a health voucher and a non-permanent resident isn’t. Regarding this question, the last Trade Union Law proposal presented by Kwan Tsui Hang, Lam Heong Sang and Ella Lei was going in the right direction, because it didn’t differentiate between permanent, non-permanent and non-residents. All those were beneficiaries of the rights to freedom of association.
MDT – Do you believe that the recent incident of the missing booksellers and the riots in Hong Kong could impact upon the “one country, two systems” policy?
PC – Regarding the booksellers, I don’t know what happened. If it is what’s being said – that they were kidnapped and taken to the mainland – that is obviously a blow to the implementation of the “one country, two systems” idea.
MDT – Do you see similar things happening in Macau?
PC – I know that there are books of the same type being sold in Macau and, as far as I know, nobody has disappeared.
MDT – How do you assess the “one country, two systems” policy applied to Macau? It’s officially been described as a success…
PC – The Basic Law is not a masterpiece and the policy implementation is not perfect. Assessing the pros and cons, I see it as successful, so much so that other parts of the world have been tempted to copy the Hong Kong and Macau model. (…) The model is well built, but a lot depends on the dynamics of its implementation. There are the words and the men. The words of the Joint Declaration and the Basic Law, and the men that will implement those words. There is a natural tension as part of the dynamics related to autonomy issues. The center – in this case Beijing – tries to get more power and the periphery – Macau and Hong Kong – also try to achieve more power. The Basic Law establishes limits, but there are grey areas.
What happens then? Clearly in Hong Kong they are trying to retain a higher degree of autonomy from Beijing. Generally speaking, the policy (in Macau) is a success. But are there warning signs? Maybe. For example, there are some decisions made by TUI about the famous moot point of the referendum, which seems to indicate an interpretation that is frozen in the ‘first system’ and not in the ‘second system’. Some of the government’s stances on that matter are concerning. But in Macau, I feel there is freedom and I can express my opinions as I wish. Before 1999, under Portuguese administration, I was reprehended and they wanted to expel me from Macau.
MDT – What do you think will happen to Hong Kong and Macau after 2047 and 2049, respectively?
PC – As the Americans would say, that’s the million-dollar question. Autonomy is guaranteed until those dates? What could happen? To end all forms of autonomy does not go against the Joint Declaration from a legal viewpoint. But it may disappoint society’s expectations. Autonomy can also be renewed, though not in the form of a joint declaration. China can say that the Basic Law will be in force for a longer time. Another thing can also happen: the development of the PRC may create a situation where, at that time, there’s neither a first nor a second system.
As Macau citizens – and I’m one, although I was not born here – we should push for the second system. The second system is about, for example, not allowing the University of Macau to undermine the Portuguese language. The second system cannot forget that Portuguese is an official language in Macau. This is not because it was imposed by Portugal. It is an official language because it was imposed by the PRC through a treaty signed in free will by two sovereign states and submitted to the United Nations. There is no treaty that can be more formal than that. There are often individuals with stances that are apparently favorable to the first system but in fact question the PRC-defined policies toward Macau and Hong Kong.
MDT – Regarding the Portuguese and the law, there was a recent issue where a Portuguese prosecutor was asked by Lisbon to return to Portugal.
PC – I don’t know the details of that case, but it is an example. Due to the lack of human resources, and the quality and experience of those resources, Macau needs judges and prosecutors with Portuguese roots. Portugal must understand that it has historical responsibilities to make sure that the Portuguese-based law continues. (…) I have been arguing for a long time – and I have been misunderstood – that we should follow Hong Kong’s example. Until recently, Hong Kong’s Court of Final Appeal had judges from Britain, New Zealand, Australia and Brunei. And there was no problem, nobody said it was colonialism. What we should have here are more judges with Portuguese roots, by which I mean, for example, judges from Cape Verde or from Brazil.
Studies on Macau law lagging behind
Paulo Cardinal recently introduced the trilingual book, “Macau SAR and the European Union” at the Rui Cunha Foundation. He says that the work, penned by Francisco Leandro, is a good example of the kind of legal research that is lacking in Macau. “There should be more research […] It is lacking in the University of Macau. It doesn’t publish a lot [regarding legal matters] and it doesn’t seem to be accessible, when it should be a point of reference,” Cardinal says. “The Macau law can only survive if there’s genuine work of study, research and publishing. Afterwards, people can agree or disagree, but this work is needed. The roots are Portuguese but the law is not Portuguese anymore and it will become increasingly distant from that.”
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