Rear Window | Undermining itself

Severo Portela

While the ripples of Hato disaster still dominate MSAR life… perhaps it is a convenient, if not an auspicious, occasion to address what prevents Macau from being the best of all possible Macaus. Bearing in mind that only fiction offers the prerogative of a fresh start, let’s say a refresh or a starting over.

However, there is a lot Macau can do to accord with the supposed image of an autonomous international entertainment city first among equals. Hato offers the opportunity to reveal more and conceal less. There is a lot to explore.

Let us consider as an example the anachronistic or bizarre situation of former Public Prosecutor General Ho Chio Meng being convicted directly by MSAR’s Court of Final Appeal (TUI), as before him the disgraced Secretary for Public Works Ao Man Long. Ho Chio Meng, who was the PPG at the time of AML trial, and without the fundamental right to appeal, nonetheless filed his reasons to TUI, including two solutions to deal with a decision intended to be final: a special or ad hoc court.

The thing is the outcome of Ho’s rightful appeal makes the situation a kind of Catch 22 nightmare. To sustain the appeal Ho has to presume the existence of a loophole, to reject the appeal TUI judge Song Man Lei had to note there is no loophole.

Of course, this is utterly technical stuff, but common sense tells people that article 40 of MSAR Basic Law knows best when it states that the provisions of the International Covenant on Civil and Political Rights “shall remain in force and shall be implemented through the laws of MSAR”. Furthermore “the rights and freedoms enjoyed by Macau residents shall not be restricted unless prescribed by law. Such restrictions shall not contravene the provisions of the first paragraph of this article”.

Before, in those times of AML, the ways to deal with the embarrassing exclusion of the fundamental principle that everybody “shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”, as per the ICCPR, were of two types: the denial of the right of appeal as a universal; the logical impossibility to grant that right at the Court of Final Appeal. Probably because the objective restriction of the right of appeal was arithmetically quantifiable the question was raised little further, despite being one of (some) citizen(s) rights, freedoms and guarantees.

TUI decided to call a spade a spade, and via a judge Song Man Lei ruling, put an end to that limbo of the loophole or not a loophole quandary. “When it was determined that in some particular cases (regarding high ranking officials) the court with the proper right to rule should be TUI, it was already clear that this would leave no room for appeals”.

The elephant has always been in the room, but perhaps it was more comfortable and convenient to be complacent and blind. Macau chose to live well knowing that a small circle of residents would have their rights diminished, given certain circumstances, something that when you are looking from the outside speaks foul in terms of rule of law.

It is crystal clear: there is no loophole! Once we may consider the possibility, but twice is a deliberate legislative intention: Macau Judicial Framework Law was reviewed in 2009 but the window closed untouched on the issue of appeal.

Finally, in scenario-building speculation, we would quote a recurrent saying that the devil is in the details… and now the devil knows the drill.