Planned Revision of the National Security Law
There is significant concern that Macau’s national security law will be aligned with those of mainland China and Hong Kong. The Chief Executive announced a plan to revise Law no. 2/2009 (Law on Safeguarding State Security) in his 2022 policy address, and the Secretary for Security subsequently indicated an intention to introduce special criminal procedures similar to those in Hong Kong’s national security law.
Hong Kong’s national security law has attracted international criticism for removing the presumption of bail, conferring intrusive investigative powers on the police and allowing suspects to be tried by the courts of mainland China in some cases.
Macau’s current national security law, enacted in 2009 and influenced by European civil law jurisdictions, requires a connection with violence or unlawful means for the crimes of secession and subversion. There is a legitimate concern that this threshold will be lowered, potentially criminalising peaceful advocacy for a change to China’s political system — as has occurred in Hong Kong.
Pre-selection of Judges for National Security Cases
The pre-selection of judges to hear national security cases raises serious concerns about judicial independence. The identities and number of pre-selected judges have never been officially disclosed. In February 2021, local media reported that 14 judges had been pre-selected, out of a total of 46 judges in Macau’s judiciary system. If this figure is correct, approximately 30% of all judges were pre-selected to hear national security cases.
Judicial Independence in Politically Sensitive Cases
In politically sensitive cases, judicial officials have handed down rulings that deviate from the jurisprudence of the Human Rights Committee and the standard interpretation of the ICCPR:
- TUI case no. 81/2021: The Court of Final Appeal upheld a police ban on a vigil for the 1989 Tiananmen Square Incident, ruling that terms such as “horrible” and “massacre” were “unacceptable in any public event” and “excessive”, citing ICCPR Article 18 to justify the restrictions.
- TUI case no. 113/2021: The TUI upheld the disqualifications of election candidates, holding that participation in vigils about the 1989 Tiananmen Square Incident and a mock referendum on Macau’s political system constituted grounds for disqualification — in complete disregard of articles 18, 19, 21 and 25 of the ICCPR.
- TUI case no. 94/2019: The TUI upheld a police ban on a demonstration against the treatment of peaceful protesters in Hong Kong, ruling that the organisers’ right to assembly was not protected because their criticism of the Hong Kong police was “unfounded”.
National Human Rights Institution
None of the institutions in Macau has a mandate that meets the requirements of the Paris Principles as described in UN General Assembly resolution 48/134 of 1993. The competence of the Commission against Corruption (CCAC) falls short of the Principles in multiple respects.
Surrender of Fugitives to Mainland China
Macau has surrendered fugitives to mainland China by extrajudicial means, carried out in the name of deportation, without safeguards against the death penalty and life imprisonment — both of which are unlawful penalties in Macau.
- In 2015, the Macau police arrested a former Chinese official with temporary residence status, stripped him of that status and deported him to mainland China to face corruption charges, which carry penalties of life imprisonment and death.
- In TUI case no. 3/2008, the police transferred a suspect to mainland China before the Court of Final Appeal could rule on a habeas corpus application.
Observations by UN Treaty Bodies
Human Rights Committee (July 2022)
Judicial independence: The Committee expressed concern that under Law no. 4/2019, the Council of the Judicial Magistrates preselects judges to hear national security cases under Law no. 2/2009, and noted the lack of transparency in the selection criteria. It was also concerned that Law no. 2/2009 fails to define “preparatory acts” for the crimes of treason, secession and subversion, which may lead to arbitrary interpretation. The Committee urged Macau to amend or repeal Article 19-A of Law no. 4/2019 and ensure all defendants are afforded full fair trial guarantees. (paras. 30–31)
Implementation of the Covenant: The Committee was concerned that the judiciary appears to misinterpret the Covenant, as illustrated by court decisions including TUI cases no. 94/2019, no. 81/2021 and no. 113/2021. (paras. 6–7)
National human rights institution: The Committee urged Macau to establish an independent national human rights institution with a comprehensive mandate in compliance with the Paris Principles. (paras. 8–9)
Surrender of fugitives: The Committee was concerned about the lack of regulations governing the transfer of offenders to mainland China and urged Macau to reach an agreement providing sufficient legal safeguards. (paras. 20–21)
(CCPR/C/CHN-MAC/CO/2)
Committee on Economic, Social and Cultural Rights (March 2023)
National human rights institution: The CESCR similarly urged Macau to establish an independent national human rights institution with a broad mandate in line with the Paris Principles. (paras. 130–131)
(E/C.12/CHN/CO/3)
Recommendations
MRG has recommended that the UN Human Rights Committee urge Macau, China to:
- Ensure that the planned revision of Law no. 2/2009 fully complies with the ICCPR;
- Refrain from introducing special procedures or intrusive investigative powers similar to those in Hong Kong’s national security law;
- Refrain from expanding the current definitions of crimes in Law no. 2/2009;
- Disclose the identities of judges pre-selected to hear national security cases;
- Ensure that judicial rulings fully comply with the ICCPR regardless of political sensitivity;
- Establish a national human rights institution that complies with the Paris Principles; and
- Refrain from transferring fugitives to mainland China without following the law governing the surrender of fugitives.