First, they banned a photographic exhibition, then they banned a June 4 vigil about the 1989 Tiananmen Square massacre. Neither had ever been forbidden since 1990.

Last Friday was the Macau Court of Final Appeal’s (CFA) opportunity to show that the police decision may have been politicised, but the court applied the law: that separation of powers, rule of law and fundamental rights are taken seriously in Macau. Sadly, the CFA upheld the police ban.

Macau. File photo: konkarampelas, via Pixabay.

Within its more than 30 pages of the CFA ruling on an appeal against the banning of the June 4 vigil (Chinese and Portuguese), you will not find the word “Tiananmen” or reference to the June 4, 1989 affair. Not once. Neither will you find the appellant’s reasoning.

The Health and the Police departments’ arguments occupy more than one-fourth of the judgment. There are two episodic references, but not a single paragraph on the appellant’s reasons. History will be provided with one side of the story alone. This unequal treatment is telling.

The CFA, like the police, grounded its decision on Covid-19 health reasons. However, there is no one currently infected in Macau and there have been no new cases in the last 50 days. The borders have been closed to non-residents, and mandatory quarantine upon entry has been imposed (with some exceptions) since March.

Students are back in schools and “life is gradually getting back to normal.” The Macau International Dragon Boat Race – a massive event, last year with “Thousands of skilled athletes” participating and “Thousands of people” attending – is going ahead in June, co-organised by the same public entity that banned the Tiananmen themed photo exhibition.

Let’s walk back a few months and place this judgment in context. In late September last year, in a different case, the Macau CFA upheld a ban on protests against Hong Kong police brutality, on the embarrassing grounds that it breached Hong Kong law (Chinese and Portuguese).

File photo: Etan Liam, via Flickr.

Proscribing a fundamental right based on a law from another jurisdiction throws to the wind centuries of constitutional doctrine. This is akin to the Macau CFA holding that an assembly against gender discrimination would disrespect Saudi Arabia law.

The 2019 CFA judgment also claimed that “should the Macau Police allow the assembly to take place, its decision would very likely be interpreted as meaning that the [Macau] police agreed with the applicants’ decry of the Hong Kong Police.”

According to this Macau CFA doctrine, police should only allow protests which they do not disagree with. Police patrol political ideas and the CFA condones.

The 2019 judgment did not only blatantly violate the right of assembly. It disregarded the rule of law, which requires that the law be above politics and be truthfully and consistently applied. That judgment heralded the first-day-of-the-rest-of-Macau’s-life.

This is the context in which last Friday’s judgment should be read, and the reason it came as no surprise. With all its unavoidable flaws, we can trust Macau courts on mainstream matters of justice. But on constitutional matters with a political tone, justice risks losing relevance.

Of the two statutes made relevant to the ruling, the Right of Assembly Statute is clear: an assembly can only be banned if its “purpose” is “contrary to the law” (Article 2). In this case, the purpose was to decry the Tiananmen massacre and express solidarity with its victims.

This is not unlawful. An unlawful purpose would be, say, an assembly seeking blatant racist and discriminatory goals, in breach of a criminal provision. It is the purpose that must be illegal. The CFA judgment fails to consider this.

To be contrary to a “law” in Macau means to breach a statute approved by the Legislative Assembly. The right of assembly cannot be banned on the grounds of contradicting a chief executive (CE) or police order. It is not just me saying it, it is provided by Article 40 of the Basic Law and Article 2 of the said statute. It is there in black and white. This is not something that can be missed.

No assembly can be banned based solely on the Right of Assembly Statute because this statute does not list any specific reason for banning assemblies. They can only be banned when another statute outlaws it. This requires another law stipulating that the purpose is illegal.

Photo: inmediahk.net.

The CFA relied on Article 3 of the prevention and control of transmissible diseases statute (the Health Statute) and on a number of Macau’s CDC “recommendations.” It argues that the assembly would be illegal because the Health Statute provides that everyone must abide by orders and measures issued by the relevant authorities.

However, as noted by one judge who partially dissented, Articles 23 to 25(1.1) of the Health Statute provide that the CE (not the police) is the only authority competent to issue special measures restricting – not prohibiting – social gatherings based on health reasons. Yet, the CE did not issue any such special measure.

This is an insurmountable obstacle because it means that no valid order exists to ban social gatherings. The CDC “recommendations” are legally irrelevant for the patently obvious reason that they are not mandatory, and any police order to that effect would be illegal; as would any CE special measure prohibiting it under the Health Statute – instead of just restricting it.

Photo: Benjamin Yuen/United Social Press.

The CFA tries to sidestep this undodgeable obstacle by saying that the police order banning the June 4 vigil, although based on health reasons, was not under the Health Statute. It was issued under the Right of Assembly Statute, the CFA claims.

This is flawed because as we saw – and the CFA agrees – the Right of Assembly Statue cannot apply alone. It depends on another law determining that the assembly’s specific purpose is illegal.

Moreover, if the police order was not valid under the Health Statute and, as the CFA claims, was not issued under such statute, why did the CFA talk about the Health Statute in the first place? If it was not applicable, why apply it? To cite Bentham, it seems “nonsense upon stilts.”

It is a truism to say that fundamental rights are not absolute. But they can only be limited by law. Not by the police. The CFA elevated the police to a status that it does not enjoy.

File photo: Catherine Lai/HKFP.

If a fundamental right is to be lawfully restricted, it must be done proportionally and only in as much as necessary. Adjudicating on fundamental rights is not like flipping a two-sided coin.

Three hundred people were expected in Senado Square. There could have been room to hold the vigil with each participant wearing protective masks and abiding by the social distancing guidelines. Why the outright ban?

According to the Health Statute, not even the CE could approve special measures prohibiting social gatherings, only restricting them. The police decision violated the principle of proportionality and was invalid for that reason as well.

Let’s revisit last year’s judgment and see how it compares with the judgement banning of the 2020 Tiananmen vigil.

The 2019 judgment would say that the Tiananmen vigil was rightly proscribed because it is contrary to Chinese law. It would also say that “should the Macau Police allow the assembly to take place, its decision would be very likely interpreted as meaning that the [Macau] police agreed with the applicants’ decry” of the Tiananmen massacre.

Hong Kong’s annual Tiananmen Massacre vigil. File photo: Etan Liam, via Flickr.

If the true reasons behind the 2020 assembly ban are the same as the ones behind the 2019 ban, even a one-person vigil – despite there being no remaining coronavirus cases – would have been prohibited on health grounds.

The word “Tiananmen” may have been omitted, but it is not forgotten.

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Jorge Menezes

Previously an academic, Jorge Menezes is a Macau-based practising lawyer. He has written and commented to the media on the erosion of rights and liberties in Macau, and was named by two media outlets one of the 20 Most Influential Personalities in Macau SAR's history for being "a kind of spokesman for pro-democratic ideas in Macau."