Sou’s appeal for suspension annulment moves to top court

Lawmaker Sulu Sou has officially forwarded his appeal for the annulment of his suspension from the Legislative Assembly (AL) to the Court of Final Appeal (TUI), the Times learned.

The move comes after the Court of Second Instance (TSI) rejected Sulu Sou’s appeal to void his mandate suspension in April. Sou claims that the process contained several irregularities leading up to AL vote December 4 last year, when the majority of lawmakers decided in favour of his suspension.

In an 85 page document to which the Times had access, Sou and his lawyer, Jorge Menezes, call upon the higher instance court to determine whether the lawmakers, the president of the AL, and the president of the House of Rules violated the law in the process of suspending Sou’s mandate. The appeal to the top court focusses on the procedural precondition for there to be “jurisdiction,” in other words, that “there is no manifest lack of jurisdiction from TSI and the Macau SAR courts” to rule on the case.

As explained in the appeal filed in the TUI, what is primarily on the line in the appeal “is not to determine if TSI and the courts of MSAR have jurisdiction to decide upon the legality of the deliberations and decisions of the AL”, but instead to decide whether the TSI’s claim to having no jurisdiction is in fact true.

The appeal claims a misjudgment on the matter in the final dispatch from TSI, claiming that TSI “based its decision on an incorrect ruling criteria.”
In the extensive document that comprises Sou’s appeal to the TUI, Menezes addresses the topic in four different chapters. The first two consist of an analysis of the context of the proceedings, including the suspension process and the mistakes found in the ruling and dispatch by the TSI. In the third and fourth chapters, the lawyer argues that this is not a case of “manifest lack of jurisdiction” and that the MSAR courts are in fact capable and possess jurisdiction to make a decision on the issues in dispute.

Menezes mentions that in his 25 years of law practice he has never seen a similar case in which the court has, in fact, not pronounced any decision, either by deferring or refusing the appeal, as he noted, “The court ignored the appeal. Since it is the duty of the courts to make a decision, the TSI made a mistake.”

As he explained further, in practical terms, this error denied his client the right to appeal the decision, “a right that was denied without any clear justification and leaving the appeal to decide, violating the law.”

The appeal quotes the Lawmaker’s Statute to further note that article 19 foresees and provides a “right of defense,” which is a general principle of any law and not an exception.

According to Sou’s defense, the “mandate suspension is not a political act since it is not an ability that results directly from the Basic Law.”

“The suspension of mandate is not foreseen in article 81 [of the Basic Law], that regulates the loss of mandate, a legal figure that is clearly different from the mandate suspension,” the appeal reads. It also notes that article 80 of the same law, which sets out the immunity of lawmakers does not make any reference to the possibility of a mandate suspension. According to the appeal, the provision provides for the “lifting of the immunity in cases in [which the lawmaker] is caught in the act of committing an offence.” Still, the fact that immunity “can be lifted only means that the lawmaker can be tried, not meaning that he can be suspended.”

The appeal notes “there are no processes without rules, except in the world of Kafka”  and continues stating that “processes without rules shouldn’t occur in a region governed by the rule of law principle.”

Contrarily, there is the “need to reason by analogy within existing laws and principles to find the rules that should be applied to the process of suspension,” the appeal reads.

According to Sou’s defense, TSI made a rushed and premature decision without giving enough time and paying enough attention to the analysis of such a complex matter noting, “TSI ‘solved’ a long and detailed allegation about a violation of fundamental rights in just 3 lines,” refuting such an allegation simply by stating that “[it] does not constitute a violation of the right and principles of access to justice as claimed by the appellant…”

In the decision announced last April, the collective of judges of TSI upheld the previous decision by the TSI rapporteur, claiming that Sou’s mandate suspension did not qualify as an administrative act “since it did not come from any organ of the administration. […] It was, instead, practiced by a legislative body with a political framework.”