Elections | Law revision triggers alarm over democratic prospects

A revision to Macau’s Legislative Assembly (AL) Election Law that would bar AL candidates from standing for office if they are found to have violated the territory’s Basic Law, or if their loyalty to the MSAR is considered questionable, is poised for introduction ahead of next year’s legislative election.

The revision, spearheaded by the Secretary for Administration and Justice, Sonia Chan, is being touted as a preemptive effort to avoid a similar legislative scandal to Hong Kong’s recent oath-taking controversy. It relates specifically to Article 104 of Hong Kong’s Basic Law, which Macau authorities say “is basically the same” as Article 101 of the MSAR’s Basic Law.

Secretary Chan was clear this week that the initiative had not come at the request of the Central Government; rather, it had been introduced by the local government as a means of “optimizing the legal system for electing members of the Legislative Assembly.”

According to a statement from the Government Information Bureau, the preemptive initiative will “prevent any misunderstandings in the future.”

However, the revision has already caused a great deal of alarm in the city, as it would grant government bodies the ability to disqualify potential lawmakers before they have even been accepted as candidates.

Moreover, potential candidates may be prevented from running for office on the basis of statements or actions made prior to announcing their intent to run, instead of just statements and actions made from the point when the revision takes effect.

The potential for the law to be applied retroactively, and the ability of non-independent government bodies to act as an arbiter over who should be permitted to run, as well as the subjective nature of the checklist criteria, has led some observers to regard the changes as a threat to local democracy.

Speaking on the sensitive subject, a legal expert said that one of the most worrying developments is that a fundamental right of Macau citizens will be transferred to what is essentially a municipal authority.

“What we are dealing with is a fundamental right [controlled] by a municipal body, [but] which body can decide this?” asked the expert, who insisted on anonymity.

“In Macau, it is likely that this body will be the Electoral Affairs Committee […] can one part of the government decide who can run in the election? […] This [power] is typically the responsibility of the courts.”

“These are extremely open concepts which should not be so open. […] There are some qualities that are easy to quantify [when determining who can run for election], like nationality or age. But these [new] conditions are less quantifiable. They are potentially open to abuse – not that they necessarily will be abused, but they could be.”

An email statement from the Office of the Secretary for Administration and Justice confirmed that the planned revision will grant the Electoral Affairs Commission the power to judge the sincerity of pledges, as well as whether candidates who have made questionable statements in the past have now “abandoned those previous beliefs or not.”

Current affairs commentator Eric Sautede told the Times that the proposed policy amendment is unlikely to have a significant effect on future elections.

“It’s more a show of solidarity with the Hong Kong government […] and done to satisfy Beijing,” he said, adding that a hypothetical enforcement of the policy might provoke “an adverse reaction” from Macau residents.

Sautede also proposed that the new requirements might be intended to quell potential separatism in the city in the distant future. In this sense it might be used as an “instrument” to prevent the emergence of an unpalatable scenario, as in Hong Kong. However, there is a slim chance they will be required, he said, since Macau is devoid of separatist movements calling for independence.

Asked whether the requirement would contravene other existing rights enshrined by the Basic Law, the legal expert said it would be incompatible with freedom of expression, and the right to elect and to be elected.

“I don’t know where this is going… It is not normal in any democratic or semi-democratic system.”

However, Sonia Chan’s office refuted the allegation, which would implicate the Secretary herself of failing to uphold the Basic Law.

“There is no contradiction with Article 26 of the Basic Law stating that the permanent residents of the Macau SAR shall have the right to vote and the right to stand for election, nor with Article 27 stating that the Macau residents shall have freedom of speech,” the Secretary’s office asserted.

Retroactive application not a problem for Chan

It is not the first time that the Secretary for Administration and Justice has indicated that a new law in Macau should be applied retroactively, despite such a requirement being highly unusual. The extradition treaty with Hong Kong – which is currently being discussed – would also apply retroactively, Chan told the press in April, allowing the surrender of fugitives who have already been convicted as long as the rulings against them are still valid. It is believed that the cases of Joseph Lau and Steven Lo, who were both sentenced to prison in 2014 for corruption and money laundering, would be targeted by the extradition agreement in this case. However, Chan has declined to address the matter, saying that she is unable to comment on individual cases.