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Macau’s plan to exclude foreign judges from national security cases violates Basic Law, says top lawyer

The president of the Macau Lawyers’ Association has said that a government proposal to exclude foreign judges from trying national security cases is a “bad solution” and violates the city’s de facto constitution.

The Macau government consulted the association about its proposed amendments to the Lei de Bases da Organização Judiciária – a law relating to judicial organisations – according to a January 19 Radio Macau report.

“In obedience to the principles of transparency of justice, independence and impartiality of the judiciary, it is a bad solution to create a special body of judges for the trial of a specific type of crime,” Jorge Neto Valente told the Portuguese-language channel.

Jorge Neto Valente

Jorge Neto Valente. Photo: Macau Government.

He said Macau’s Basic Law Article 85 stipulates there may be specialised courts, but it does not mention the possibility of special courts or a body of special judges for any particular type of crime.

Article 87 stipulates that “Judges shall be chosen on the basis of their professional qualifications. Qualified judges of foreign nationality may also be employed.”

Neto Valente said there was no criteria mentioned in the proposal other than Chinese citizens. He said the proposal would amount to discrimination, as all judges should apply all laws.

“If judges do not apply a particular law – whatever it may be – [laws about] security or otherwise, they cannot be judges. We cannot discriminate against judges.”

Chinese Macau flag

Chinese and Macau flag raising ceremony in Macau. Photo: Macau Government.

An unnamed Macau government source told Chinese-language news site All About Macau that the government was analysing opinions from the Macau Lawyers’ Association.

The source said that cases related to national security or national secrets involve the national interest, and the government must provide protection: “We have to be very careful especially for cases related to national defence.”

The source denied there was any discrimination of foreign judges, because the Basic Law took an open approach that judges of foreign nationalities could be employed.

The source added that – in most foreign countries – judges have to be of the nationality of the state concerned, and cases related to national security must be handled by local judges.

Macau's plan to exclude foreign judges from national security cases violates Basic Law, says top lawyer