Brief Introduction of Judicial System of Macao

by Sam Hou Fai, President of the Court of Final Appeal of the Macao SAR

I. Evolution of the Judicial System of Macao

Before the Portuguese parliament (Assembly of the Republic) adopted the Law of Bases of the Judicial System of Macao in 1991, Macao was a sub-judiciary district in the overall judicial framework of Portugal in the field of justice, and was affiliated to the Judiciary District of Lisbon. Portugal is divided into a number of judiciary districts, each with a court of appeal. And every judiciary district has under it a number of sub-judiciary districts, each with a lower court. All the cases of appeal against the judgment made by Macao courts would be transferred for a final judgment to the Court of Appeal of the Judiciary District of Lisbon for a final judgment, or even to the Supreme Court of Justice of Portugal or, for cases of administrative proceedings, to the Supreme Administrative Court of Portugal. Besides, the Constitutional Court of Portugal also had jurisdiction over Macao, and all the cases of appeal against violation of the Constitution of Portugal and contravention of the Constitution on the part of local laws or decrees should be transferred to the Constitutional Court for general adjudication.

As a sub-judiciary district under the Judiciary District of Lisbon, Macao was under the control of relevant Portuguese laws and decrees in terms of the framework of its judicial system as well as the appointment and management of magistrates in Macao. Besides, the appointment and dismissal of magistrates in Macao and the assessment of their work were also under the jurisdiction of relevant Portuguese authorities, such as the Superior Council of Magistrates and the Superior Council of Public Prosecutors. Under such a system, Macao had in it the Court of Justice of Macao, the Criminal Preliminary Hearing Court of Macao and the Administrative Court of Macao. Except the Administrative Court, the other two courts both had a number of full-time judges, who performed their duties of adjudication and preliminary hearing. In accordance with the characteristics of Macao as a sub-judiciary district under the Judiciary District of Lisbon, Macao also had in it a Department of Public Prosecution, which, under the leadership of the Assistant Prosecutor-General, exercised the prosecutorial power.

In 1987, China and Portugal signed the Sino-Portuguese Joint Declaration on the Question of Macao, affirming China’s resumption of the exercise of sovereignty over Macao on December 20, 1999. Because of this great development, Portugal amended Clause 5 in Article 292 of its Constitution in 1989, stipulating that Macao could have an independent judicial system in accordance with the characteristics of the region. On August 29, 1991, the Portuguese parliament adopted the Law of Bases of the Judicial System of Macao, which was intended for the implementation in Macao of relevant provisions of the Portuguese Constitution. Afterwards, in accordance with the Law of Bases of the Judicial System of Macao, the Governor of Macao promulgated a series of decrees or decree-laws, which further improved the framework of the judicial system of Macao and the regime of management of magistrates in the Macao. As a result, Macao was able to start the process of establishing a relatively independent judicial system, which was to formally break away from the control of the Judiciary District of Lisbon.

Although Portugal amended relevant provisions of its Constitution in 1989 to facilitate the establishment of a relatively independent judicial system in Macao and the Portuguese parliament adopted the Law of Bases of the Judicial System of Macao in 1991, the existing framework of the judicial system of Macao formally started its operation in March 1993.

Moreover, although Macao was establishing a relatively independent judicial system in accordance with the characteristics of the region, the Constitutional Court, the Supreme Administrative Court, the Supreme Court of Justice and the Audit Court of the Republic of Portugal were still exercising a certain type of adjudicative power over Macao until June 1, 1999. Therefore, Macao actually enjoyed no power of final adjudication until recently. On May 20, 1999, the Portuguese president issued Presidential Decree No. 118-A/99. Under this presidential decree, the Higher Court of Justice (Superior Court of Justice) of Macao had the power of final adjudication over all cases other than cases of appeal against violation of the Portuguese Constitution, which were still under the jurisdiction of the Constitutional Court of Portugal, the cases of criminal or civil charges against the Governor or Assistant Secretaries of Macao, which were still under the jurisdiction of the Judiciary District of Lisbon.

The existing laws and decree-laws concerning the framework of the judicial system of Macao and the management of magistrates in the region mainly include the following:

  1. Law of Bases of the Judicial System of Macao (Law No. 112/91) adopted by the Portuguese parliament on August 29, 1991;
  2. General Regulation of the Judicial System of Macao (Decree-Law No. 17/92/M) promulgated by the Governor of Macao on March 2, 1992 for the implementation of the Law of Bases of the Judicial System of Macao;
  3. The Organic Law of the Audit Court of Macao (Decree-Law No. 18/92/M) promulgated by the Governor of Macao on March 2, 1992;
  4. Statute of Magistrates of Macao (Decree-Law No. 55/92/M) promulgated by the Governor of Macao on August 18, 1992; and
  5. Presidential Decree No. 118-A/99 issued by the Portuguese president on May 20, 1999.

The above-mentioned laws and decree-laws have been amended many times by the Governor of Macao since they took effect in the region.

II. Status Quo of the Judicial System of Macao

(I) The System of Courts:

Presently, the system of courts in Macao comprises two general levels – the courts of first instance and the higher courts.

1. Courts of First Instance: The courts of first instance in Macao consists of the Court of General Competence, the Administrative Court, the Criminal Preliminary Hearing Court and the Audit Court.

The Court of General Competence: The Court of General Competence is responsible for adjudicating most of the criminal and civil cases. This court has under it a total of four collegiate panels, each presided over by a panel president, and a total of six sole-judge benches, each presided over by a judge. In addition, this court has three assistant judges.

It is worth mentioning that in Macao, all criminal, administrative and economic cases are adjudicated by the Court of General Competence, regardless of the gravity of cases or the total value involved in them, except for charges against the Governor, an Assistant Secretary, the High Commissioner against Corruption and Administrative Illegality and deputies to the Legislative Assembly for criminal offenses or administrative illegalities as well as civil charges against them arising from their performance of official duties. Such an arrangement on the part of Macao is totally different from that of the mainland and the Hong Kong Special Administrative Region of China.

For those who do not agree with a judgment or ruling made by the Court of General Competence, they can appeal to the Higher Court of Justice in accordance with the relevant procedural law.

The Administrative Court: The Administrative Court is mainly responsible for adjudicating contentious cases concerning administration, taxation and customs. However, the Administrative Court is not responsible for handling administrative lawsuits against administrative decisions made by the Governor or Assistant Secretaries. Any judgment or ruling made by the Administrative Court can be appealed to the Higher Court of Justice. Presently, the Administrative Court has only one judge. Where a case has to be adjudicated by a collegiate panel of three judges in accordance with relevant legal provisions, a provisional collegiate panel will be formed to try the case, and such a collegiate panel will consist of the president of a collegiate panel from the Court of General competence, the judge with the Administrative Court and a separate judge from the Court of General Competence.

The Criminal Preliminary Hearing Court: The Criminal Preliminary Hearing Court is mainly responsible for exercising a certain type of judicial power in the period of criminal investigation at the request of the prosecution or parties concerned. In exercising judicial power, this court carries out preliminary examination and makes decisions on whether to put criminal cases to trial and on cases to which the simplest criminal procedure is applicable. Generally speaking, in the period of criminal investigation, it is necessary to take some coercive measures, such as recognizance upon bail, arrest, search, closedown and seizure of articles or property. The taking of such measures shall be subject to decision by the criminal preliminary judge in accordance with the application of the prosecution. For example, where the prosecution or the party concerned on either side in a case files an application for preliminary examination, the criminal preliminary judge concerned shall carry out preliminary examination and shall make a decision on whether to submit the case to the Court of General Competence for adjudication. For the simplest contentious criminal cases, the criminal preliminary judge concerned can make a decision on them at the request of the prosecution and with consent from the parties concerned on both sides in the cases.

For whose who do not agree with a decision made by the criminal preliminary judge concerned, they can appeal to the Higher Court of Appeal. However, neither the prosecution nor the parties concerned on both sides of a case can appeal against the decision of the criminal preliminary judge concerned on putting the case to trial.

Presently, the Criminal Preliminary Hearing Court has under it two benches, each with one judge.

The Audit Court: As one of the judicial authorities of Macao, the Audit Court is mainly responsible for exercising the financial control and relevant judicial power over the autonomous or non-autonomous departments, public corporations, public bodies, local autonomous bodies, all other public entities defined by law and administrative public-service corporations in the region. Basically, the Audit Court is mainly under the responsibility of checking up on whether the expenses of the above-mentioned institutions are legal, whether their accounts are clear enough and whether their procedures of engaging civil servants meet relevant legal provisions. Meanwhile, it is also responsible for annually checking up on the financial accounts of the government and can put forward relevant proposals.

The Audit Court has under it two benches, each with a chief judge presiding over the adjudication of cases. This court also has a president. As far as its operation is concerned, the Audit Court is divided into a sole-judge bench and a collegiate bench. The sole-judge bench is chaired by one judge while the collegiate bench consists of three judges, with the court president as its chairman. Judgments made by the sole-judge bench can be appealed to the collegiate bench.

Where the government of Macao does not agree with a checkup or writ on the part of the collegiate bench of the Audit Court, it can appeal to the plenary court of the Higher Court of Macao.

Under the Basic Law of Macao, the Audit Court will be disbanded following the establishment of the Macao Special Administrative Region, and an audit administration directly under the leadership of the Chief Executive will be established.

2. The Higher Court of Justice: The Higher Court of Justice is the highest judicial authority in Macao. Under most of the circumstances, the judgment made by the Higher Court of Justice is final. Therefore, this court actually has played the role of a Court of Final Appeal. Although the Higher Court of Justice of Macao enjoys the de facto power of final adjudication over appeals against judgments made by other courts in the region, such as the Court of General Competence, the Administrative Court and the Criminal Preliminary Hearing Court, the Constitutional Court of Portugal and the Court of Appeal of the Judiciary District of Lisbon has the power of final adjudication over part of the appeal cases before Macao reverts to China on December 20, 1999.

Presently, the Higher Court of Justice has under it two divisional courts – one for the trial of general appeal cases and the other for the adjudication of administrative, tax and customs appeal cases. Each of the divisional courts consists of three judges. Under relevant legal provisions, the president of the Higher Court of Justice generally does not participate in the adjudication of cases under the above-mentioned categories, and only presides over the adjudication of appeal cases concerning the unification of jurisprudence. Namely, where the Higher Court of Justice has made different judgments on cases of a same nature, the Department of Public Prosecution or parties concerned can appeal to the plenary court of the Higher Court of Justice, in order that the court can make a judgment on cases of such a nature through the unification of jurisprudence that will be of a generally binding force. In making such a judgment, the president of the Higher Court of Justice shall join six other judges in forming a plenary court of the Higher Court of Justice and participate in the adjudication of the cases concerned. Under the Basic Law of Macao, the Higher Court of Justice will convert to the Court of Appeal (the Intermediate Court or the Court of Second Instance) of Macao and a separate Court of Final Appeal will be established in the region after the establishment of the Macao Special Administrative Region.

(II) The Department of Public Prosecution:

The Department of Public Prosecution (Ministerio Publico) is part of the judicial authorities of Macao. With its own organizational framework, the department fulfills its functions independently and is not subject to the interference of any other authorities of power.

Under relevant laws governing the judicial system of Macao, the Department of Public Prosecution mainly fulfill the following categories of functions:

  1. To supervise the enforcement of law and to fulfill judicial functions relevant to the criminal procedure (e.g., to take charge of investigations into criminal cases, institute public prosecutions and to appear in courts to support public prosecutions);
  2. To fulfill functions of legal representation, namely to participate in various proceedings in courts on behalf of the region of Macao, public institutions and other statutory bodies in the region in accordance with law;
  3. To fulfill the function of consultation at the request of the Governor of Macao (e.g., to put forward various legal opinions); and
  4. To fulfill other functions prescribed by law.

One of the major characteristics of the internal organizational structure of the Department of Public Prosecution is that in the department, the relationship between superiors and subordinates is a relationship of subordination, or a relationship between leaders and those under their leadership. The subordinates are under the obligation to fulfill duties assigned to them by their superiors and to take orders issued by their superiors in line with law. Otherwise, they may be disciplined.

Presently, the Department of Public Prosecution is of an organizational structure of three levels: the Assistant Prosecutor-General (Procurador-Geral Adjunto), the chief prosecutors (Procuradores) and the prosecutors (Delegados do Procurador). Specifically, the department consists of the Assistant Prosecutor-General, four chief Prosecutors and 24 prosecutors. Except the Assistant Prosecutor-General, the chief prosecutors and the prosecutors are all assigned to work in judicial departments other than the Department of Public Prosecution, without a central office.

(III) The Judiciary Council of Macao:

The Judiciary Council of Macao is the authority for the management of magistrates (court judges and members of the prosecution) at all levels in Macao. Major functions of the council include the following: to make proposals to the Governor of Macao on the appointment and dismissal of magistrates at all levels; to take charge of the routine management of magistrates at all levels; and to classify the service of magistrates at all levels. Besides, council also exercises the power of supervision over the supporting members of the judiciary with all courts and the prosecution, by regularly classifying their service and checking up on their observation of disciplines.

The Judiciary Council of Macao consists of nine persons: the President of the Higher Court of Justice of Macao, the Assistant Prosecutor-General of Macao, one representative elected from among all magistrates in Macao, two representatives elected from the bar of Macao, two persons designated by the Government of Macao and two deputies elected from among the deputies to the Legislative Assembly. The Judiciary Council of Macao is chaired by the president of the Higher Court of Justice of Macao.

(IV) The Competence Required of the Magistrates of Macao (except the magistrates from Portugal engaged in Macao at all levels):

The competence required of the judges with the courts of first instance and the prosecutors:

To be qualified as a judge with a court of first instance or a prosecutor in Macao, one must simultaneously meet the following conditions: (1) That he or she meets the general conditions required for the post of government officials in accordance with the statute of government officials in Macao; (2) That he or she has graduated from the Faculty of Law of Macao University or from the faculty of law of a university in another region and another country recognized by the government of Macao; (3) That he or she has resided in Macao for a continued period of not less than three years; (4) That he or she is fluent in the Chinese and Portuguese languages; and (5) That he or she has received training in the Center for the Training of Magistrates (Centro de Formacao de Magistrados) and has finished studies there as a qualified graduate.

The competence required of the chairman of the collegiate benches of the courts of first instance and the chief prosecutors:

To be qualified as the chairman of the collegiate bench of a court of first instance or a chief prosecutor in Macao, one must meet the following conditions: (1) That he or she has a work experience of a minimum of 10 years as a magistrate; and (2) That his or her service has been classified as not lower than B.

The competence required of the president and judges of the Higher Court of Justice, the Assistant Prosecutor-General, and the president and judges of the Audit Court:

To be qualified as the president or a judge of the Higher Court of Justice, the Assistant Prosecutor-General, or the president or a judge of the Audit Court of Macao, one must meet the condition that he or she has a work experience of a minimum of 15 years in the profession of magistrates, in the bar or in the profession of legal education at a university.

Before Macao reverts to China on December 20, 1999, the posts of the chairman of collegiate benches of the courts of first instance, the Assistant Prosecutor-General, the chief prosecutors, the president and judges of the Audit Court and the president and judges of the Higher Court of Justice are all held by magistrates engaged from Portugal, and have never been held by Chinese or Macao-born Portuguese.

III. Judicial System of the Macao Special Administrative Region

The Basic Law of Macao, on the basis of referring to the existing judicial system in Macao, has not only provided for the principle of judicial independence, but has also made relevant provisions on the framework of the judicial system and the appointment and dismissal of magistrates in the Macao Special Administrative Region.

Under the Basic Law of Macao, the Macao Special Administrative Region shall have a three-level system of courts: the Court of Final Appeal, the Intermediate Court and lower courts (courts of first instance). The law provides for the maintenance of the previous system of criminal indictment applied in the Criminal Preliminary Hearing Court of Macao. Besides, it provides for the establishment of an administrative court in the region, stipulating that "If a party refuses to accept a judgment by the administrative court, he or she shall have the right to file an appeal with the Intermediate Court." Such a new framework of the judicial system defined by the Basic Law will be adaptable to the three-level framework of the previous judicial system of Macao. Besides, it provides for the maintenance of the previous system of criminal indictment applied in the Criminal Preliminary Hearing Court of Macao. So, these positive developments will be conducive to the smooth transition of the previous framework of the judicial system to the new one.

For the organizational structure of the future Prosecutors’ Office of the Macao Special Administrative Region, the Basic Law has prescribed relatively principled provisions, stipulating that "The structure, powers and functions as well as operation of the Prosecutors’ Office shall be prescribed by law." The Basic Law has only made principled provisions on the Prosecutors’ Office mainly in consideration of the fact that under the previous system of public prosecution of Macao, members of the prosecution are separately assigned to work in courts. The ambiguity of the Basic Law on this part is obviously intended to maintain the characteristics of operation of the system of public prosecution of Macao.

The Basic Law stipulates that judges of the courts of the Macao Special Administrative Region at all levels shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, lawyers and eminent persons. It provides that the presidents of the courts of the Macao Special Administrative Region at all levels shall be chosen from among judges and appointed by the Chief Executive, but the president of the Court of Final Appeal shall be a Chinese citizen who is a permanent resident of the region. Under the Basic Law, the dismissal of judges in the region will be at two levels: the dismissal of judges with the Court of Final Appeal shall be decided by the Chief Executive on the recommendation of a review panel consisting of deputies to the Legislative Council of the Macao Special Administrative Region, while the dismissal of other judges shall be decided by the Chief Executive on the recommendation of a review panel appointed by the president of the Court of Final Appeal and consisting of not fewer than three local judges. Moreover, the Basic Law, proceeding from the characteristics of the prosecution, prescribes that the Prosecutor-General of the Macao Special Administrative Region shall be a Chinese citizen who is a permanent resident of the region, shall be nominated or recommended by the Chief Executive and appointed by the Central People’s Government, and that the other public prosecutors shall be nominated by the Prosecutor-General and appointed by the Chief Executive.