Rear Window | Polishing the judiciary

Severo Portela

Everyone saw it coming! The Secretary for Administration and Justice’s candid confirmation that the proposal to amend the MSAR judiciary law will or would prevent foreign judges from hearing or ruling on matters of national security has sent a strong and alarming signal across the Pearl River Delta to our ‘sister’ Special Administrative Region of Hong Kong. We should notice that Macau is taking the lead in an obviously thorny matter that surfaced not within but in Hong Kong. We recognize that the verbal abuse against foreign judges in Hong Kong was restricted, as far as we know, to a mere duo of court rulings occurring in a politically charged environment of pro-democracy driven by scholarism, localists and the like. We believe it was not enough to erode the overall confidence in the judicial system given the particular poisoned circumstances of the day, but it was a serious warning card and not the first one in Hong Kong aimed at the common law legal community.

Who would think that if Macau was to take the step to turn away foreign, non-Chinese judges that it would so easily be said that it was to prevent Portuguese judges from hearing cases of national security on grounds of being less patriotically suitable?! Besides being a move that more than one local legal luminary take as roughly unconstitutional, the proposal to prevent non-Chinese judges from ruling on special matters of national security – and we can establish a motive or conceive of the pervading rationale – can be read as chauvinism and other unpronounceable nouns. It is difficult to support and give it enough credibility.

Worse than this is the very wording with which Secretary Sonia Chan smooths the proposal. She denies being the one aiming to discriminate against non-Chinese… and the wording is SMOOTH! To make the operations of the judiciary smoother! And to expedite the trial proceedings!

So, two types of questions arise from the smooth wording above: first, a general one as to what is a smooth operation (?); secondly, a more particular and detailed one of what to do when normal/current civil or commercial court cases are designated to have elements of national security (?). As to the second proposition regarding the trial expediation, it will be crucial to know how those special cases are to arrive and depart through the faster lane of trial proceedings.

All parties concerned ought to consider legal scholar Simon Young’s opinion (MDT on Feb. 22) on the eventual violation of the 83rd article of the Basic Law (interference with the exercise of independent judiciary) – in Hong Kong the 85th – “any move towards excluding foreign judges from hearing cases, which they would otherwise be entitled to hear, may lead people to think that their government does not trust foreign judges.” This would be a very wrong message to send and would dent the confidence in one of the most successful aspects of the Hong Kong and Macau judiciaries. This and other matters, including the interface between local pro-democracy movements and the constitutional zeitgeist in Beijing, are to be subject to a review, if not a complete reset.

While the MSAR is waiting for the polishing of its judiciary, tourism is booming, gross gaming revenue is roaring in line with an ideal balancing of mass market and premium to high-rolling VIPs, new properties are opening to business, i.e. the amazing USD 3.4 billion MGM Cotai – do forgive the awe – and Wynn Resorts is moving forward in the aftermath of the departure of its signature founder. The thing is, pragmatism this side of the PRD commands each and every particular step towards the end of the actual gaming licenses, or concessions, as if there was an enigmatic rewards’ program. Meanwhile the city is awash with fanfare and fireworks!

This is resilience Macau style: serious playing, and people hired to provide entertainment.