Judicial cooperation in criminal matters with Mainland China
Case 3/2008 in Macau was a habeas corpus case heard before the Macau Tribunal of Ultimate Instance. The applicant A[note 1] filed a request of habeas corpus to the court, as he believed his elder sister B was in unlawful detention by the Judiciary Police in Macau, when in fact B had been transferred to the Public Security Bureau of Zhuhai, China, one day before the request. The court has no jurisdiction outside Macau, so it ruled that there was no further need to adjudicate, on grounds of supervening impossibility of the remedy sought. The judgment, however, went on to cite a previous decision by the same court in 2007, which allowed a similar application.[1] The court this time reiterated that before specific legislation is introduced, it is illegal to transfer fugitives to mainland China, and the acts by the authority in the present case "discredit justice, undermine the Rechtsstaat and do not bring prestige to the Macau Special Administrative Region."[2]:7 The case has since been cited by jurists in academic papers concerning the lack of extradition legislation between Macau and mainland China.
On 8 February, B's younger brother, A, sent a habeas corpus request by fax to the Tribunal of Ultimate Instance. In his application, A said, B's family members had visited the Judiciary Police branch at Rua Central[zh] on 7 February evening. They asked B's whereabouts, only to be told that B was not there. A thought that, had B been released, then she would have been in touch with her family, but that was not the case. After the 48 hours time limit for detention[note 2] had elapsed, A said he was still oblivious to B's situation, and thus believed that she was illegally detained. This was the reason he filed the case.[note 3][2]:1–3
The respondent
The Public Ministry[zh] (or Public Prosecutor's Office) was listed as the respondent in the case.[2]:i After receiving the habeas corpus request, the court notified Wong Sio Chak, who then was the Director of the Macau Judiciary Police[zh],[5][6] to submit an explanation. In the official letter to the court, he explained, if an Interpol member state found an individual wanted in a Red Notice, then according to Interpol regulations, they must immediately notify the National Central Bureau and the Interpol General Secretariat, and so they did. Having communicated with the Chinese National Central Bureau, they knew that the Public Security Bureau in Fuzhou had issued an arrest warrant on 4 June 2004 and demanded that, once B was arrested, she be sent to mainland China, and the extradition that had happened was justified by the order of an Assistant Procurator General.[2]:3–4
Decision
The court held a public hearing as the Code of Penal Procedures[note 4] prescribed.[2]:4 In the first part of the analysis, the court confirmed that before the habeas corpus petition, B had already been transferred to mainland China, where the court in Macau has no jurisdiction. The court had no remedy available to hand down, or in other words, supervenient impossibility appeared and the court ruled to terminate the proceedings.[2]:6,8
However, the judgment went on to cite Case 12/2007 in Macau,[1] in which the same court had decided that extraditing fugitives to a place other than Macau requires special provision of the law, but the law at that time had no such provision governing the transfer to mainland China. The conclusion was that, even with a Red Notice from the Interpol, neither the Public Ministry nor the Judiciary Police might detain the person for extradition purposes.[2]:6
The court acknowledged that there were probably voices objecting them, but prior to the judgment, the objections they had seen were "mere slogans without substantive content", and even if there were diverging opinions, court decisions within their jurisdiction shall prevail over all other authorities[note 5] in a territory governed by law. Regarding judicial action notifications and producing evidence on civil and commercial matters, the cooperation between Macau and mainland China had required a set of agreement,[note 6] and hence it should be more so for extraditing fugitives, or otherwise its legality cannot be guaranteed, considering that the two kinds of matters are incomparable in their aggressiveness to the fundamental personal rights.[2]:7
Therefore, the court reprimanded, saying that despite the decision in 2007,
it persists in making such extraditions, without the provision of law or agreement, without organised process, without the possibility for the detainee to defend, and without the order from a judge for that.
These acts discredit justice, undermine the state of law and do not bring prestige to the Macau Special Administrative Region.[2]:7
Response
In 2009, a Macau University of Science and Technology law professor Fang Quan agreed with parts of the criticism in the judgment, that the government failed to comply with the 2007 decision, whereby the doctrine of res judicata and persuasiveness of judicial decisions were harmed, damaging the judicial authority. Meanwhile, she said the court's stance was "self-contradictory": according to the Código de Processo Penal,[note 7] if an official does not comply with the court's decision on the imprisoned person in response to his habeas corpus request, then that official is punishable with the penalty equivalent to that for misfeasance ("prevarication").[note 8] However, on one hand the court condemned the non-compliance, but on the other hand, it made no further action to hold the Assistant Procurator General responsible. She also identified that the detention should be the sole matter of dispute[de] of a habeas corpus case, not the extradition, but the court had "bound and confounded" the two issues. They relied on the reasoning that "since the extradition is illegal, the same must hold for the detention", while neither is the necessary condition of the other. The Macau branch of Interpol in certain circumstances has the authority[note 9] to detain individuals sought by foreign authorities, and to present the person to a competent magistrate, so in this way it is possible to detain a fugitive (subject to the criminal procedural law[note 2]), and "there should not be any question to its legality".[7]
In 2013, another law Professor, Zhao Guoqiang[zh] from the University of Macau, commented that this case, together with the 2007 case, reflected the practical disagreement between the prosecution office and the court, on how extraditions should be handled, and this needed to be resolved. Zhao also explicitly supported the prosecution office's opinion, and questioned the court's reasons. He thought that the court's decision was based on incorrect ideas, and however good faith the decision might come with subjectively, the connivance of criminals was its objective consequence, "Is it really what Macau wants, the 'prestige' of being the heaven for criminals?" Instead, he opined, "without any agreement or specific law, but following the 'One country, two systems' policy, and the principle of 'reciprocal benefit'", it should be possible to extradite fugitives, but of course it is still preferable to have a proper agreement as soon as possible. It was the court that with its incorrect understanding of extradition practices, and by "specious" reasons, "abruptly intervened the tacit agreement and tradition" of extradition between Macau and mainland China.[8] In a previous paper, Zhao wrote that the court's ideal of "extradition according to law" still "makes some sense", and it was only the lack of progress in resolving the extradition dilemma that disappointed him, and extradition has surprisingly become more difficult after the handover of Macau to China.[9]
After the Hong Kong Causeway Bay Books disappearances in 2015, the South China Morning Post published an article in February 2016 which described this case and the deportation of Wu Quanshen in 2015 as "extrajudicial". When Joaquim Jorge Neto Valente[zh], President of the Association of Advocates in Macau[pt] (counterpart of the Bar association), was interviewed, he commented that no matter how many or few such cases there were, "the principle is wrong".[3] Several news media in Hong Kong and Macau quoted the SCMP report.[10][5][11][12] An op-ed on the news page Macau Concealers wrote that it was the SCMP report that brought the case back to people's attention after so many years.[13] One day after the report, Wong Sio Chak, having been promoted to the Secretary for Security of Macau, chaired the press conference on the 2015 crime figures. There, he mentioned that the extradition was according to law and that the court's criticism was due to their different interpretation of the law. Also, he clarified that to avoid further conflicts between the prosecution office and the court, the government no longer handled similar cases, and Macau had not extradited any Hong Konger to mainland China from 2008.[4] He pointed out that no law forbade the extradition of Hong Kong citizens, and emphasised that they would handle cases in the "one country, two systems" way, that Macau residents[zh] were "absolutely, hundred percent, never" involved,[12] and that in general principles it was absolutely not allowed to extradite Macau residents.[14]
In 2019, another two Assistant Professors from the University of Macau, Miguel Manero de Lemos and Teresa Lancry Robalo, wrote that the conflict between the two judicial institutions of Macau was instructive. The court upheld the rule of law and procedural justice, but in doing so made it possible for Macau to surrender fugitives to everywhere in the world,[note 10] but impossible to mainland China and Hong Kong. In contrast, the prosecution office considered it important to co-operate to fight crime, and gave "possibly, a prevalence of politics over law", and in consequence whether to extradite a person would be determined by the prosecution or police authorities without procedural protections. Both sides lead to consequences which are "hard to stomach".[15] Right before the paper was published, the 2019 Hong Kong extradition bill was proposed to the Legislative Council of Hong Kong, which de Lemos and Robalo thought might be a key step to cooperation on transferring fugitives within the “one country”.[15]:767
Macau social activist Jason Chao also commented on this case during the 2019–2020 Hong Kong protests against the bill mentioned above. He considered that the Macau government (in handling extradition cases) "sought ways to circumvent potential legal challenges" after the 2007 ruling.[16]
Notes
↑ The individuals involved were anonymised, and this article shall use the same symbols as in the judgment[2] to denote them.
"Mainland China" is a geopolitical term defined as the territory under direct administration of the Chinese Communist government of the People's Republic of China in the aftermath of the Chinese Civil War. The geopolitical sense of the term includes islands such as Hainan, Chongming, and Zhoushan, even though those islands are offshore of the Chinese mainland. By convention, the territories that fall outside of mainland China include:
Santo António is a civil parish in the western portion of the Macau Peninsula of Macau. It has the highest population density in Macau.
Sé is a southeast civil parish in the Macau Peninsula of Macau. It is the second largest peninsular district in Macau after the civil parish of Nossa Senhora de Fátima. The parish area is named for the Igreja da Sé.
The Basic Law of the Macao Special Administrative Region of the People's Republic of China is the organic law that establishes the Macau Special Administrative Region, replacing the Estatuto Orgânico de Macau. It was adopted on 31 March 1993 by China's National People's Congress and promulgated by President Jiang Zemin; it came into effect on 20 December 1999, following the transfer of sovereignty over Macau from Portugal to China.
The Court of Final Appeal of Macau is the court with the final adjudication power on laws of Macau. Prior to 1999, the highest court was the Higher Court of Justice of Macau and prior to that the Court of Appeal of the Judiciary District of Lisbon in Portugal.
The Macao Special Administrative Region of the People's Republic of Chinapassport is a passport issued to Chinese citizens who are permanent residents of the Chinese Special Administrative Region of Macau.
The Government of the Macau Special Administrative Region, are headed by secretariats or commissioners and report directly to the chief executive. The affairs of the government are decided by secretaries, who are appointed by the chief executive and endorsed by the State Council of the Central People's Government in Beijing. As a special administrative region of China, Macau has a high degree of autonomy, in light of the "One Country, Two Systems" policy. The Macau Government, financially independent from the Central People's Government, oversees the affairs of Macau.
The Macau Special Administrative Region, commonly known as Macau or Macao is one of the two special administrative regions (SARs) of the China (PRC), along with Hong Kong.
Media in Macau are available to the public in the forms of: television and radio, newspapers, magazines and the Internet. They serve the local community by providing necessary information and entertainment. Macau's media market is rather small. The local media face strong competition from Hong Kong.
The handover of Macau from the Portuguese Republic to the People's Republic of China was at midnight on 20 December 1999. This event ended 442 years of Portuguese rule in the former settlement, which began in 1557.
The Exit & Entry Permit for Taiwan, Republic of China is the document for the bearer to enter into and/or depart from the Taiwan Area, namely Taiwan, Penghu, Kinmen and Matsu. Currently, there are several types of Exit & Entry Permit that reflect the bearer's residency status. The permit is issued by the National Immigration Agency of the Republic of China (Taiwan). For different purposes, the permit is also known as:
The 12-3 incident was a series of political demonstrations and riots against Portuguese colonial rule in Macau which occurred on December 3, 1966. The incident, inspired by the Cultural Revolution in the People's Republic of China, occurred as a direct response to a violent police crackdown by colonial authorities against local Chinese protesters demonstrating against corruption and colonialism in Macau.
The Macau Resident Identity Card or BIR is an official identity card issued by the Identification Services Bureau of Macau. There are two types of Resident Identity Cards: one for permanent residents and one for non-permanent residents.
The Exit-Entry Permit for Travelling to and from Hong Kong and Macau, colloquially known as a Two-way Permit or EEP is issued to Chinese nationals with residency in Mainland China as a travel document for the sole purpose to travel the Chinese Special Administrative Regions of Hong Kong and Macau. The Bureau of Exit and Entry Administration of the Chinese Ministry of Public Security is responsible for the issuing of Two-way Permits and exit endorsements.
The current Penal Code of Macau was promulgated in 1995, by Decree-Law no. 58/95/M, after the creation of the High Court of Justice in 1993. Prior to 1995, the 1886 Penal Code of Portugal applied to Macau.
The Macao Conservatory is a public conservatory in Macau, a special administrative region of China.
Secession in China refers to several secessionist movements in the People's Republic of China. Many current separatist movements in China arise from the country's ethnic issues. Some of the factors that have created these ethnic issues include history, nationalism, economic and political disparity, religion, and other factors. China has historically had tensions between the majority Han and other minority ethnic groups, particularly in rural and border regions. Historically, other ruling ethnicities, such as the Manchu of the early-Qing dynasty, experienced ethnic issues as well.
The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 was a proposed bill regarding extradition to amend the Fugitive Offenders Ordinance in relation to special surrender arrangements and the Mutual Legal Assistance in Criminal Matters Ordinance so that arrangements for mutual legal assistance can be made between Hong Kong and any place outside Hong Kong. The bill was proposed by the Hong Kong government in February 2019 to establish a mechanism for transfers of fugitives not only for Taiwan, but also for Mainland China and Macau, which are currently excluded in the existing laws.
Macau independence is the political movement that advocates for the independence of Macau from China. Despite receiving little attention within Macau, the issue was raised in the Legislative Assembly of Macau following the Hong Kong Legislative Council oath-taking controversy. In 2017, several Chinese media outlets warned against discussion of Macau independence, fearing that speculation would lead to further action.
The COVID-19 pandemic in Macau was a part of the ongoing worldwide pandemic of coronavirus disease 2019 caused by severe acute respiratory syndrome coronavirus 2. The first known case of the disease in the special administrative region of China was confirmed on 22 January 2020. The city saw nine more cases by 4 February, but no more cases until 15 March, when imported cases began to appear. Stringent government measures have included the 15-day closure of all 81 casinos in the territory in February 2020; in addition, effective 25 March, the territory disallowed connecting flights at its airport as well as entry by all non-residents, and from 6 April, the Hong Kong–Zhuhai–Macau Bridge was closed to public transport and most other traffic.
1 2 Raquel Carvalho (21 February 2016). "Macau handed Hong Kong residents to mainland authorities, despite court declaring it illegal". South China Morning Post. Archived from the original on 4 December 2021. Retrieved 4 December 2021. Law enforcement agencies in Macau used extrajudicial means to turn over at least three people. … As the mystery of how five Hong Kong booksellers ended up "assisting investigations" on the mainland remains murky, fears are growing stronger… Jorge Neto Valente, head of the Macau Lawyers Association, said. "Regardless if there are many or few cases, the principle is wrong."
1 2 "Governo nega entrega de fugitivos por via extrajudicial". Ponto Final (in Portuguese). 23 February 2016. Archived from the original on 4 December 2021. Retrieved 4 December 2021. Wong Sio Chak clarificou que depois de 2008 – e na sequencia das diferentes interpretações feitas pelo Ministério Público e pelo Tribunal de Última Instância – as autoridades de Macau não voltaram a entregar residentes de Hong Kong à República Popular da China.
↑ "Secretary for Security Wong Sio Chak". Government Portal of Macao Special Administrative Region. Retrieved 5 December 2021. In November 2000, he was appointed as Director of Judiciary Police. Nominated by the Chief Executive, he was appointed by the Central People's Government as the Secretary for Security of the fourth-term Government of the Macao Special Administrative Region on 30 November 2014
↑ 方泉 (2009). "澳门与内地移交逃犯的法律问题——兼议澳门《刑事司法互助法》的原则规定". 中国刑事法杂志 (in Chinese) (7): 117–122. ISSN1007-9017.
↑ 赵国强 (2013). "论特区终审法院的社会责任——以案例为视角". 广东社会科学 (in Chinese) (4): 93–103. ISSN1000-114X.
↑ 施虹羽 (23 February 2016). "港人澳門犯法案件年增14%". 文匯報 (in Chinese). Archived from the original on 6 December 2021. Retrieved 5 December 2021. 就《南華早報》早前報道澳門警方曾以法外方式移交3人予內地，其中兩人為香港永久居民。黃少澤稱，澳門為國際刑警組織成員，須履行成員責任，且根據澳門刑事訴訟法典相關規定，並沒規定香港居民不可移交。
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