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23 July 2013
Two recent criminal cases have seen Macau's highest court called to intervene as if it were a first instance court, and publicly voice its desire to change its existing competence.
Article 1(1) of the Law of the Judicial Organisation (Law 9/1999, December 20 1999) states that the Macau Special Administrative Region (MSAR) enjoys independent judicial power, including that of final decision.
The same principle is provided for in Articles 2 and 19 of the Basic Law of MSAR, according to which the courts of the MSAR have jurisdiction over all cases in the region - with the exception of restrictions on their jurisdiction imposed by the legal system and the principles previously in force in Macau, which shall be maintained.
The jurisdiction of the last instance court is provided for in Article 44 of the Law of Judicial Organisation.
In some cases the last instance court has the jurisdiction to decide these cases as if it was a first instance court – including when proceedings are held against:
The reasoning behind this rule is linked to the legislative idea that last instance court judges would be more experienced and better prepared to decide.
However, what happens if one of those high-ranked individuals is judged in the last instance court as a first degree of jurisdiction, and does not agree with the court's decision and is willing to appeal? Or even when the public prosecutor, or any other third party that is in the opposite field, decides to appeal a decision contrary to what is deemed appropriate?
These questions have recently been raised for the second time in a case of public interest where the last instance court was called to decide regarding the indictment (the stage that follows the investigation phase and is usually lead by the criminal instruction court) regarding crimes committed allegedly by a secretary of the Macau government. The last instance judge, acting as criminal instruction court, decided not to indict the defendant (a decision based on lack of evidence). Consequently, the case ended and no trial will be held against the defendant.
The assistant wanted to submit an appeal, as the Criminal Procedure Code (Article 292) states that a decision which discharges the indictment is subject to appeal. However, the decisions made in the last instance court, even when this court intervenes as a first instance court, appear to be definitive and from which there is no legal basis to appeal.
It is settled that the basic law of the MSAR takes precedence over any other diploma that states otherwise. If the basic law establishes that Macau courts should have jurisdiction over all cases in the region, that means it is impossible to appeal to a court in Mainland China, or any other place, on a decision rendered in the last instance court of Macau.
Macau has three degrees of jurisdiction – first, second and last instance court. Therefore, a decision made in the last instance court must be definitive, as there is no superior court to which the losing party may appeal. This means that a party to those proceedings is prevented from submitting an appeal, whatever the decision, contrary to its interests.
Considering the text of the diploma that governs the judicial organisation (Law 9/1999) there is little to be done unless the law is changed. It should either be accepted that the judgment of some individuals is not subject to appeal – while recognising that this is linked to office – or established that the law must change.
Some believe that a member of the government, a judge or a prosecutor should not be judged in the first instance court when the case involves an action taken in the exercise of their duties. Notwithstanding this, it is possible that these individuals should be judged in the second instance court so that an appeal can still take place.
The last instance court has suggested that a review of the Law of Judicial Organisation should take place, with respect to the jurisdiction of the second and last instance courts.
For further information on this topic please contact Pedro Cortés or Marta Mourão Teixeira at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (firstname.lastname@example.org or email@example.com).
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