Legal Wise | Blast from the past

Francisco Leitão     Partner, MdME

The Commission Against Corruption’s (CCAC) report on the Iec Long Firecracker Factory land swap is now the talk of the town. Even if, as an opinion maker eloquently puts it, it has been something of a “public secret” in Macau for years.
At the heart of the matter is the already infamous “Term of Commitment” executed in 2001, in which the parties involved, with more or less authority to do so – if any authority at all – put pen to paper on their agreement to swap the land of the firecracker factory for a plot at the Nossa Senhora da Esperança Bay.
Reaction to the report’s shattering conclusions was immediate, from public outcry for what appears to be yet another Macau-style swindle, to demands for swift criminal prosecution.
However, the public should realize that the admissible legal consequences of the case will likely fall short of their expectations. In fact, even if any criminal liability could exist in relation to the facts leading to the 2001 “Terms of Commitment,” the maximum prison sentences carried by the incriminations plausibly at stake – such as abuse of power, criminal maladministration, usurpation of duties, economic participation in a transaction or even corruption – lead to relatively short statute of limitation periods (10 years at the most), causing criminal liability to be extinguished and thus preventing the CCAC and the Office of the Public Prosecutor from triggering a criminal investigation focused on the subject facts.

Aspect of the Iec Long factory and surrounding area

This is not to stay that a long, winding road of disputes does not lie ahead. In fact, in addition to the nullities already pointed out by the CCAC on the civil side of the matter, the committal of a crime will, in itself, determine the nullity of the related administrative acts, a nullity that, pursuant to the Macau Administrative Procedure Code, can be argued at any time by any party, and declared at any time by any administrative body or court. And while no criminal convictions are to be expected in this case, government counsels, lawyers, prosecutors and judges may still look forward to some exciting times, as they discuss whether nullities can be declared in the absence of such convictions, whether the facts in point would indeed constitute crimes, and whether “de facto” and “bona fide” effects should be preserved nevertheless.
All in all, it seems that, more than 30 years after it ceased producing firecrackers, there is still enough explosive material in the Iec Long Factory to go around and cause a significant blast.