AL Plenary | Non-Chinese judges banned from ruling on cases of national security

The amendment aiming to prevent foreign judges from ruling on matters of national security was passed at the Legislative Assembly (AL) yesterday.

Even though the legislation passed, it received criticism from several lawmakers, including Ng Kuok Cheong, Pereira Coutinho, and Au Kam San.

The lawmakers queried whether there had ever been non-Chinese judges or prosecutors who created issues in a legal case involving national security.

“Regarding the articles related to national security, this occurred suddenly. From the information available, I cannot see any specific instruction from the Central Government [requesting to ban non-Chinese judges from national security cases]. If there are instructions from the Central Government, what are they? If it is not the Central government, […] why does Macau need this special arrangement? Why has the SAR government suddenly lost confidence in these non-Chinese judges?” Ng asked.

“From the information available, I cannot see any legal cases that could have possibly led the SAR government to harbor suspicion because of the nationality of prosecutors and judges. Why don’t we trust these non-Chinese prosecutors and judges? It is an important question,” Ng continued.

Pereira Coutinho said that “through the Basic Law, I cannot see any article allowing discrimination towards non-Chinese judges. I do not rule out another special court in the future.”

Sonia Chan, in reply to the lawmakers’ questions, said that “national security cases are related to core benefits, territorial integrity and national unity. Protecting the state’s fundamental interest is the constitutional responsibility of the SAR government, and this responsibility is the basis for deciding that it is necessary to have judges from our own country [Chinese judges] in order to hear cases involving national security.” Chan further noted that Macau is not the only place with such a policy.

“Every other country in the world is using their citizens [as judges]. Macau and Hong Kong happen to be two extremely special places in the world. When Macau was handed over [to China], the Basic Law created a rather relaxed regulation: that the SAR government could hire foreign judges because there was a shortage of judges back then,” Chan continued.

Chan claimed that the SAR government does not doubt the ability and work ethic of non-Chinese judges. “I have said in the past that [the SAR government] fully trusts the ability and professional conduct of non-Chinese judges.  No problem has ever occurred [regarding non-Chinese judges involved in national security cases],” she declared. According to Chan, national security cases are indeed sensitive, and China is stepping closer to the core of the international stage.

“National security matters cannot be compared to those of 20 years ago. I believe the amendment does not violate the Basic Law,” stated Chan.

Lawmaker Au Kam San responded to Chan by saying “you say that they [non-Chinese judges] have work ethic and are professional, but you exclude them, and that is discrimination.”

“Non-Chinese judges are not all hired from the outside. There are also non-Chinese judges among Macau local permanent residents,” Au added.

Even though lawmakers criticized the latest amendment, lawmaker Ho Ion Sang and Iau Teng Pio supported the exclusion of non-Chinese judges from national security cases.

“The one country and the two Systems principle is unequal. When there is a conflict between them, the two systems must obey the one country. If there are non-Chinese judges participating [in these cases], they undermine the state’s dignity,” said Ho Ion Sang.

Chan Wa Keong commented that “the first crime related to national security is the crime of treason. If a judge does not have a sense of national identity, how can a judge hear such a case? If a judge does not even regard oneself as a person from this country, how can they hear such a case?”