Severo Portela
If it were a fictional protagonist of a tragedy characterized as sensitive and prone to meek hysterics… this persona, being the judicial system, would shout: they are killing me softly! Descending unto earth, down on the Pearl River Delta MSAR, we should be restrained and level-headed, maintaining a convenient composure so as to credibly point to some proposals for the legal system and the judiciary (Executive sent to the Legislative Assembly) which could well be akin to a potential seismic shift. Despite this, a touch-up is somewhat justified as an imperative emanating from State Security and Defense Law and not contrary to the Macau Basic Law.
We have resorted above to a kind of disclaimer to guard ourselves from the possibility of an incomplete perception of the reality and from being accused of having a sick imagination. Nonetheless we have noticed that some of those who have refused to even interpret the Basic Law now are more than happy to refer to the Fundamental Law.
Again, our point is by necessity simple tunnel vision. The idea and the actual proposal to ban non-Chinese judges from ruling on cases related to national security, we have to admit, is attractive to the average resident who are often unfamiliar with legal matters, much less the judiciary or the constitutional law.
Indeed, popular imagination has its way of picturing an affair of national security or sensitive matters that would be better handled solely by nationals. However, we are not talking about conventional social boundaries. The regular or average resident must know that the amendment to restrict cases of national security to Chinese-national judges not only sustains the idea of special court(s) but challenges the principles of natural justice. Apparently, there will be a selection of judges to rule on those cases made by the Council of Judicial Magistrates but the criteria to select and later distribute these cases is not known and that is worrisome. I rephrase: what is worrisome is that there has been absolutely no questioning regarding the “criteria”. For instance, will the criteria include the possibility that a regular case may be syphoned or re-graded to a sensitive matter, thus redistributed?
Wisely, veteran lawyer João Miguel Barros warns against the apparent tactics of not confronting the big picture, rather slicing it so that in the end it will be necessary to mend it according to the greater good: the big picture?
To end the afflictions of the legal week we do have to mention the unequivocally independent decision against the government stand to deny the right to challenge the winning bid of China Construction Engineering (Macau). China Road and Bridge lost the bid to China Construction for a mere pair of points. Awarded on the basis of comprehensive criteria: price, experience, plan for the LTR rolling-stock depot, and honesty and integrity.
The Court of Final Appeal, better known by its acronym TUI, followed the ruling of the Court of Second Instance blocking the Chief Executive’s own appeal arguing that courts had no legal grounds and no authority to intervene in the awarding of the contract with China Co because it was an administrative matter. “Administrative entities behind the tender had no legal basis to compel the courts to respect the government decision”. In the talk of the town: go back and do the math again to see if the two points stand!
Something is telling us that this is just the beginning of the second part of the incredibly difficult Light Train Rail depot episode.
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