Macau Court of Final Appeal Rejects Appeal by Disqualified Democrats

The Macau Court of Final Appeal en banc upheld the Legislative Assembly Election Affairs Commission’s (CAEAL) disqualification of candidates brought by representatives of three democratic parties in Macau. The CAEAL is a local administrative body whose membership is appointed by the Macau Chief Executive.

The democrats were noticed of their disqualification on July 9. The CFA's 70-page Chinese-language decision dropped on 31 July (no Portuguese available yet). The Court’s reasoning goes like this:

  • Any right, even if it is "basic," cannot be absolutely unrestricted. The exercise of any basic right is regulated by law. Indeed, Macau Basic Law (MBL) Article 26 stipulates that the right of permanent residents' to vote and be elected is regulated "in accordance with the law.
  • According to Article 6 (8) of the Macau SAR Legislative Council Election Law, amended in the aftermath of the Hong Kong oath-taking controversy in 2016, those who do not support the MBL or are disloyal to Macau or PRC are ineligible for elected office.
  • Article 10, paragraph 1 (12) of the Legislative Council Election Law clearly endows the review of the nomination process and its procedures to the CAEAL.
  • At no point did “the legislator did not require that the relevant facts must be verified by court trial.” Further, “we believe that the legislator did not require the [CAEAL] to comply with the general administrative procedures…”

Next, the Court jumps to a discussion of national security laws. 

  • In order to better implement and effectively implement the "Maintenance of National Security Law", the Legislative Council passed Law No. 14/2020 to amend Law No. 5/2006. The National Security Intelligence Office since has the power to collect intelligence related to damage to national security and stability and conduct strategic analysis.
  • CAEAL asked for and received the evidence it requested from the investigators. The evidence included facts that the organizations and their members have organized Macau’s June 4th rally, publicaly mourned Liu Xiaobo, and displaying the "Charter 08."
  • The Electoral Affairs Commission has fulfilled its burden of proof.

T    Interestingly, the Court relies on the Chinese Constitution itself for support.

  •       Paragraph 24 opines: "The above content is obviously provocative and slanderous. It is clearly contrary to the resolution and characterization of the June 4th incident made by the central government. It damages the credibility and prestige of the central government and challenges the long-term actual leadership of the Communist Party of China. The status was clearly established at the constitutional level through the ‘Amendment to the Constitution of the People's Republic of China’ passed by the first meeting of the 13th National People's Congress on March 11, 2018, because the new content was ‘The leadership of the Communist Party is the most essential feature of socialism with Chinese characteristics.’” 

·       Finally, they conclude there was no violation of the principle of proportionality, because there was nothing uncertain about the law. Laws are allowed to be drafted in imprecise terms. There is no evidence of arbitrary application here; indeed, the precedent is quite clear moving forward.        

Indeed, despite the length of the opinion, there is little discussion / balancing of ICCPR, other MBL provisions, or other potential sources of human rights law. All discussion of these issues are fairly quickly dismissed under the "rights are subject to law" formulation. Instead, the Macau Court of Final Appeal adopted the reasoning of the CAEAL completely.

 

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