Not written law

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Legislator Leonel Alves stated that he was worried about the insistence by the Court of Final Appeal to deny an appeal to defendants holding high-level political offices, stating that this rule is “not written anywhere”.
Since the handover of Macau to mainland China in 1999, two high level officials have been charged in the Court of Final Appeal: the former Secretary for Transport and Public Works, Ao Man Long, in 2007, and former Prosecutor-general Ho Chio Meng this year. Both were not allowed to appeal the court’s decisions.
After Mr. Ho requested an appeal, the court reaffirmed last week the impossibility of defendants who formerly held public office appealing the court’s decisions, stating “one cannot deduct that there is a legal gap”.
Leonel Alves – who will step down as a legislator in the Legislative Assembly after 33 years of service – rejected this interpretation by the Court of Final Appeal, arguing that “there is no institutional impediment” to deny the right of appeal to citizens “nominated for an important position and that enjoy the presumption of innocence”.

A question of manpower
Mr. Alves recalled that before 1999, he was involved in drafting the Basic Law of Judicial Organization and that this “initial version included the right to an appeal”.
“However there was someone that opposed [this right], stating defendants should be immediately judged by the Court of Final Appeal, since they were directly appointed by the Chinese central government,” the lawyer said.
“I respect the court’s decision, but since I took part in the initial draft of the law, I can say that the non-existence of the right of appeal wasn’t due to any philosophical or political belief, but due to the small number of legislators in our top legal court,” he added.
The Court of Final Appeal is composed of three judges and, given that it’s the top legal court, there is no higher body in which to re-evaluate cases that have been judged there.
“There is no constitutional impediment, it is not written anywhere, neither in the Constitution of the People’s Republic of China nor in the Basic Law of Macau, that the citizen who happened to hold a public top position can’t appeal,” he said.

Human flaws
Mr. Alves admitted that “the right to appeal is also not written anywhere” but underlined that in a state under a differing rule of law, it is necessary to “recognise that humans make mistakes and no one can guarantee that three judges have the gift of absolute truth and certainty”.
“It’s a citizen’s right. Personally, as a lawyer and as a citizen, I am worried and I think this has to be solved,” Mr. Alves added.
For the lawyer, by not changing the rule under which high-ranking officials are only judged in the top court, it is necessary to provide the Court of Final Appeal with “sufficient human resources to be able to receive the appeals to its decisions”.
However, he argued that only the Chief Executive should be judged directly in the top court since “the CE is the maximum representative, the others are collaborators of the maximum representative”.
“Why does an employee have to have the same judicial treatment as the Chief Executive? It doesn’t make sense,” he added. with Lusa