Lawmakers want to exempt ‘political decisions’ from appeal

Vong Hing Fai

Lawmakers Vong Hing Fai and Kou Hoi In reacted to Sulu Sou’s court request to void his suspension from the Legislative Assembly (AL) by presenting a proposal that would exempt “political decisions” from appeal.

The resolution project titled “Political Nature of Deliberations of the Legislative Assembly Plenary” was admitted yesterday by AL president Ho Iat Seng. It will be voted next week.

In their proposal, Vong and Kou recall that the AL plenary vote that resulted in the suspension of lawmaker Sulu Sou occurred on December 4. The following day, the suspension notice was published by the Official Gazette, generating “some doubts,” according to the proponents.

Arguing that the decisions of the AL plenary regarding the suspension or the loss of a mandate have a “political nature,” the lawmakers claim that those acts are “free of the interference of any other institution or individual, to avoid that the normal operation of the political structure defined by the Basic Law is undermined.”

With only two articles, the proposal states that the “deliberations of the Legislative Assembly that lead to the suspension or loss of a lawmaker’s mandate are acts of a political nature that are excluded from administrative, fiscal or customs appeal.”

Article number two establishes that the measure would have retroactive effects dating back to December 1999, when the MSAR was created.

Contacted by the Times, lawyer Leonel Alves – who was a lawmaker for 33 years – said that the proposal “is illogical, if the Basic Law, which is based on the principle of rule of law, is taken into consideration.”

According to Alves, “there isn’t any public power [institution] that can smash the power of a citizen” and “any act that harms individual rights is subject to appeal.”

“If the citizen’s right to defend himself is obstructed or the principle of listening to all parties involved is pulled into question the acts are subject to appeal. If there is a basic violation of basic principles of the rule of law, it is appealable,” Alves explained.

The veteran lawyer also questioned the definition of a “political act,” saying that a wide range of decisions, such as the approval of a budget by the AL, can be considered political.

Sérgio de Almeida Correia says that acts with a political nature should be exempted from litigation because of the principle of separation of powers. But the lawyer contends that what is at stake in this case are the several steps that lead to the December 4 vote and not the vote itself. “The procedural acts that are taken through a process and that lead to a decision can and should be subject to litigation and constitutional assessment, to see if they abide by the law,” he told the Times yesterday. 

Sérgio de Almeida Correia argues that it is important to verify if the procedural acts on which the political act depends are legal. “That, and only that, is what is at stake,” he says, adding that when procedural acts hinder fundamental rights, the courts should exert control.

The Times also questioned Correia about the article 2 of the proposal. Could it produce effects starting in December 1999? “It can’t and that would be an even bigger aberration than the presentation of this project, which has the intention of violating in a crass way the principle of separation of powers, taking from the courts competences that are granted to them by the Basic Law.”

“The lawmakers who presented the project intend to appropriate jurisdiction of the courts and decide by anticipation a question that has left their sphere,” the lawyer said. “Now it is up to the courts to decide. The simple fact that this resolution project was presented reveals the incompetence behind how the suspension process was conducted […] and reveals the fear that some have regarding what the courts may decide.”