There are worrying trends emerging in Macau’s legal system that threaten the consistency and quality of justice

With the handover of Macau and Hong Kong, the mainland acquired two new and different legal systems in addition to its own. Preserving those systems was a safeguard for the rights and customs of residents in both territories and was instrumental in ensuring a smooth transition.

Furthermore, as both Macau and Hong Kong are open economies, preserving their respective legal systems provided international companies and organisations with an assurance of stability.

It also gifted the mainland with two laboratories for legal solutions that might be useful for its own transition and legal reform.

For several reasons, the Macau legal system appears to be under increasing strain. That should be a source of concern.

The most recent episode relates to matters that usually fall under international law. For the past few months, some international agreements and similar instruments have not been published in the Official Gazette in both official languages, Portuguese and Chinese, as common sense and the law seem to command.

International agreements include provisions that are binding. Therefore, they create rules applicable within local legal systems. Legally, they prevail over the ordinary laws.

I am assured by several experts that not publishing those international agreements in both official languages is a violation of the fundamental principles upon which the Macau legal system is built upon – namely, transparency and legal security. It also goes against the government’s obligations under several relevant pieces of legislation, including the Basic Law, the Civil Code, the law regarding the publication of official acts and the legal diploma on the status of the territory’s official languages.

Justice damaged

Any reading of these pieces of legislation consistent with Macau’s legal system, its principles and aims, seems to point unequivocally to the requirement that international legal instruments be published in both of Macau’s official languages.

The window to do so for some of those documents has expired, bringing serious issues to the fore. Namely, what is the applicability of the documents published in only one of the official languages? That fact, some argue, limits their enforceability.

It also raises questions about the clarity of the legal reasoning and the commitment to the integrity of the law by those entrusted to protect it.

It is not my point to get involved in the legal intricacies of the issue. However, this suggests a certain lightness of approach to the matter. If a similar approach is used to handle other issues, the coherence of the legal system will be brought into question. And that is an issue of widespread interest.

This is not the only matter for apprehension. Other trends also raise concerns about the future of Macau’s legal system.

Frequently and consistently, the head of the Lawyers Association has pointed to a deterioration of the working conditions of courts, namely a lack of human resources and, in particular, experienced judges. The longer those limitations persist, the more likely the delivery of justice will be slowed, if not lessened.

Solid on paper

Meanwhile, the education system does not seem to be generating enough qualified professionals. Some tertiary institutions are granting law degrees that are authorised or recognised by the government but which do not predominantly feature Macau’s laws and the foundations of continental legal systems, to which our system belongs.

From this state of affairs, two outcomes seem inevitable.

First, most of the usual professional careers for a law graduate will be closed for people graduating from those institutions. They are unlikely to qualify as practicing lawyers or to be hired as a private legal adviser.

The only real professional career that may be open to these graduates is public service, where admissions are heavily biased in favour of academic qualifications, for which they will be probably outstanding – at least on paper. To think of the possibility of an administration peppered with legal advisers that are unfamiliar with, if not totally ignorant of, the local legal system is not reassuring.

Adding to this sense of growing concern is a feeling that there is what might be described as a compulsion to review and change laws. Often, those changes do not seem necessary or justified.

Regulations are replaced or modified before being tested in the real world. No amount of doctrine, serious reflection or systematic analysis from scholars or practitioners seems to underpin the changes or argue for their need.

Sometimes these changes create inconsistencies. Sometimes they seem cosmetic. Again, some lightness of approach seems to reveal itself.

What is driving these changes? Contingent interests, the need to show service, ulterior agendas, genuine beliefs? Perhaps it is a combination.

These trends point in one direction – to the weakening in the coherence of the legal system.

It should be a matter of deep concern. If unchecked, legal security will be undermined, strengthening arbitrariness and opacity.

That does not seem to be in the interests of preserving Macau’s autonomy and singularity.

By José I. Duarte Economist, Macau Business Senior Analyst – jid@macaubusiness.com