Having your day in court is a long time coming in Macau. In the countdown to next year’s Chief Executive election, Closer will be looking at different areas in the city crying out for government intervention. We start with the legal system.
If justice delayed is justice denied as British politician William Gladstone observed in the 1800s, Macau’s legal system is in serious trouble.
If you have been the victim or a witness in a crime in Macau, or are suing for compensation over a business deal, car accident or negligence, you had better be prepared for justice delayed.
Yours will be one of up to 17,000 cases brought before Macau courts each year ranging from serious crimes like sex offences, robberies and fraud, to civil actions brought by companies or individuals claiming damages for personal injuries, recovering debts or settling disputes over contracts.
If history is any indication, you can commonly expect to wait years to have your day in court.
In a Closer survey of lawyers, police and others working and appearing before Macau’s courts, there was unanimous agreement that the time taken to get a hearing was appalling.
There are reports of some cases taking up to 12 years and still not having a result, while others take years to end in acquittal because witnesses have died or relocated or evidence has been lost.
Most say they understand the proceedings and some rated the justice dispensed as satisfactory once they had their case heard.
But there was also widespread criticism of the human resources shortage, backlog of cases, court building and amenities, education of professionals, quality of decisions and lack of government action.
At the start of the new judiciary year in Macau in October the president of Macau’s Lawyers Association, Jorge Neto Valente, president of the Court of Final Appeal, Sam Hou Fai, and Prosecutor General, Ho Chio Meng, gave their accounts of the court system and reforms needed to provide effective justice to all parties.
All three agreed the system was in need of urgent assistance, but disagreed on the causes and possible solutions.
Court records show that up until August this year there were more than 15,000 cases pending in Macau’s three courts. According to Mr Sam’s speech, the number of cases brought forward last judicial year was 17,857, a jump of 12 per cent from the previous year.
There were 14,975 cases concluded last year, an increase of 619 compared to the year before.
Mr Sam, who declined Closer’s request for interview, said magistrates and lawyers were working longer hours, but it was not possible to “find an efficient solution regardless of the efforts made by legal personnel”.
Mr Sam said he was still waiting for a solution to speed up the process of graduate law students and suggested a short-term measure of creating two additional courts to Macau’s lower courts to deal with criminal cases. He also proposed that the lower court should deal with cases which have a maximum sentence of up to five years, instead of three years.
Mr Valente, who leads the city’s 200 lawyers and 117 trainee lawyers, says there is a simple and relatively easy solution to fix the human resources shortage and clear the backlogs. He says he is at a loss to know why it is not being pursued.
“We do not have enough judges and we do not have enough public attorneys,” he explains. “In my view it is so easy, with 29 judges how can they handle 12,000 new cases every year? They cannot cope with the year in question and they still have the backlog, they have all the cases that are passed from year to year, it is impossible.”
Without taking into account the backlog or time off for holidays, Macau’s 29 magistrates and 29 public prosecutors would have to complete close to two cases every day to clear the 12,000 new cases annually. Mr Valente is not alone in concluding this workload “impossible”. “They work enough, it is not humanly possible to deal with this,” he concedes. “The solution is to get more judges.”
A spokeswoman for Macau’s Public Prosecutions Office agrees the human resources shortage is a “serious issue” that must be overcome. She says there are only 11 prosecutors handling criminal cases, meaning they are each responsible for up to 1000 cases each year.
According to figures from the Public Prosecutions Office there were 10,305 new criminal cases opened in the first nine months of this year, this compares to 11,671 in 2007 and 11,584 in 2006. There were 10,834 cases closed in the first nine months of this year, with 2467 prosecutions. The number of cases closed in 2007 was 13,000, a jump of more than 100 per cent when compared to cases closed in 2000.
The spokeswoman says despite the human resources shortage, methods have been employed to ensure an “optimal level” of work is completed. This includes using more than 40 judicial clerks to assist prosecutors in their duties. She says more than 80 per cent of the office’s work involves minor criminal cases, like theft, were the suspect cannot be found. These cases, the majority of which are archived, are described as a “burden” on workload.
“Starting in 2004 the number of cases closed each year was more than the number of cases opened, we are finishing work that has been pending...,” the spokeswoman says. “Before the handover all major and minor cases were handled together, the new system has proven to be an effective and efficient way to get work done. Without increasing the number of magistrates we have managed to speed up our work.”
Despite this she admits Macau is in need of more magistrates. Mr Valente says it makes sense to get these people were they can be recruited. “Right now there is only one place in the world where they can be recruited,” he says. “That is Portugal.”
This is primarily due to the fact that Macau’s legal system is broadly based on Portuguese law and the official languages of Macau are Portuguese and Chinese.
The solution is not one that everyone agrees with. Mr Sam, who is a member of the Judges Independent Committee responsible for recommending new judges for appointment in Macau, believes the best solution is to increase the number of local judges and procedural simplification. “Because for Portuguese judges with expertise, Macau no longer offers attractive conditions and as such the Judges Independent Committee had certain difficulty in hiring judges in its last mission to Portugal,” he said in October.
Mr Valente says despite the fact that Mr Sam has publicly said he is not against the recruitment of Portuguese judges, he “cannot agree with this statement”. He argues that if the government is serious about attracting experienced judges from Portugal, it should offer them a higher salary than what it pays the “inexperienced locals”. He says the government, as it is required to by law, should conduct inspections of all judges’ work in order to classify them. If they were classified, different pay rates could be set.
“In Portugal they require a minimum of 11 years experience to be a judge, in Macau with zero years’ experience they are thrown out to the jungle,” he says. “If you don’t want to bring them [from Portugal] you say you want people with 15 years experience and they are almost
being promoted to the highest courts so they will not come for the same salary as the ones in Macau who are just starting out. How can you compare a judge with 15 years experience with a local guy that has one year’s experience, it’s simply not fair. You should not pay the same.”
Macau lawyer Pedro Cortes believes there is no political will to improve things in Macau. Mr Cortes says every year the backlogs get worse and still there is nothing done. He is aware of one case that has been outstanding for 12 years.
“They are trying not to have to go to Portugal to fix things,” he says. “If you put an experienced judge from Portugal next to an inexperienced local judge, you are going to notice the difference and it is not that one is Portuguese and one Chinese, it is about the experience. I think there is a degree of trying to save face when really they should be trying to fix the problems.”
Macau lawyer Frederico Rato believes the system not only has a human resources shortage, but that it is sacrificing the human resources it has due to overwork and stress. Mr Rato says the judiciary lacks certainty, consistent quality and is plagued by “undesirable delays”. “Taking that into consideration, maybe the academic and the professional training should be upgraded, including the learning of the Portuguese language,” Mr Rato says.
“How many Hong Kong judges are not acquainted with the English language? None. The initiation into the profession must be smoother and guided and the inspection and evaluation of the performance of Macau judiciary is a must.”
There is no doubt that the longer a criminal case takes to get to court, the less likely it is for justice to be served. Witnesses become less able to recall the details of their evidence, or may become unavailable.
“I’m giving evidence about a fight from two years ago,” a witness in one case told Closer last month. “How am I supposed to remember all the details now?” There is also the real fear that lengthy delays in civil cases will have a negative impact on the city’s economic development. The booming economy over the past five years has created a lot of new situations and more and more people are choosing to take disputes to court to seek reparation or compensation.
Assistant Professor at Macau University’s Law Faculty Jorge Godinho says lengthy delays in the court system do little for Macau’s international business reputation. Mr Valente agrees there is a lot at stake. “I heard someone complain the other day he has a case depending for 12 years, it is possible and it’s appalling,” he says. “It is disastrous for the development of Macau because the economic agents, the investors, have no confidence, they do not trust the system- not because they have reasons not to trust the laws- but because they can’t get redress, they can’t get reparation from the courts.”
There is no doubt that Macau has the financial resources to solve the problems, but spending money on the court system has never really been a popular option for governments. They usually preferred to spend on more publicly appealing law-and-order issues such as appointing extra police.
Professor Godinho says he is hopeful that things might change if Macau’s next Secretary for Justice has a legal background. Secretary for Administration and Justice, Florinda Chan, has a master degree in business administration and has extensive experience working in Macau’s civil service. Professor Godinho believes if the politician responsible for justice has a legal background, he or she may be more acquainted with the problems in the system. Closer was unable to get comment from Ms Chan.
“The challenges are difficult, the legal system is complex, this is a job where it is not enough to change a few things and see if it works, you have to work out all the balances,” he says. “The situation has been neglected for too long and the system is falling apart. It is like washing the dishes, if you leave one dish today and you leave two dishes tomorrow by the seventh day you are going to have a lot dishes to wash. It is an incremental problem that has been gradually getting worse and it has now become all too obvious and notorious, but still they do nothing to fix it.”
Many fear that unless more judges and public prosecutors are recruited immediately, waiting times will continue to increase and problems continue to compound. There is a no doubt extra cost involved in keeping defendants in custody for long periods and of more defendants taking advantage of the delays to avoid being convicted.
A police officer speaking to Closer describes his frustration of defendants having charges dropped or being acquitted due to delays. He says it is common for police to waste countless hours working on cases only to find crucial witnesses have left Macau or some even passed away before the cases make it to court.
Mr Cortes agrees the impact of delays on clients depends largely on what side of the fence they are on. “It can work in some defendants favour and they are happy about it,” he explains. “For others it can cause great stress and concern.”
One court worker describes her daily workload as “beyond comprehension”. She says stress levels are high and increasing all the time. “We are all working very hard but there is not a feeling of getting to an end result, there is a lot of unhappiness,” she explains. “It is not good to go to work every day like this, people are unhappy with how things work and we are trying.”
Mr Valente agrees that people working within the courts are stressed, especially judges. He says this has a negative effect on their work. “The quality of the decisions is getting worse because if they don’t study enough, if they don’t allow enough time to think and ponder the solution there is no way you can decide,” he says. “The secret is more work, more study, reflection, pondering, sit down and think about the cases, not just trying to wash their hands of it.”
Professor Godinho agrees there are increasing question marks over the quality of some court decisions handed down in Macau. He says there does not appear to be enough consideration given by some judges before making decisions or debate by the legal fraternity afterwards. “I am very concerned about justification of the decisions,” he explains. “When you read a court decision you expect to a very well reasoned and complete analysis and discussion of the accusations and a very sound discussion of the evidence and applicable law in order to reach the conclusion that the court has come up with. This is not necessarily the case and many people are worried.” Many blame
the delays on the fact that the system uses two languages and believe that the use of Portuguese is the main problem. Under the one country, two system principle, the Basic Law approved by China People’s National Congress established Portuguese as an official language of Macau’s administration for a period of 50 years.
Macau lawyer João Miguel Barros says while much has been made of the fact that Chinese is not well implemented in tribunals; he describes the argument as “demagogical and not provided of any logic”.
“Nowadays, most of the judges and public prosecutors speak and write Chinese,” he says. “The same is true with regard of most of the lawyers who go to courts. It is not by forcing even more the implementation of Chinese language into the judicial system will it improve the quality of the decisions taken. The quality of the decisions comes from the maturity of who is judging, and comes from the judges’ legal and civic background.”
Court records show that last judicial year there were 4,017 cases, or 67 per cent, carried out in Chinese alone, and 1701 cases, or 30 per cent, carried out in both Portuguese and Chinese.
Mr Valente says the figures clearly show that language is not what is dragging legal cases from one year to the next. “People in my view deliberately mix things up and make a mess,” he explains. “We have been misled by successive justifications which have proven to everyone that they are wrong. After the handover they said there were not enough judges, but we were hoping the new judges would cope with the situation. When we realised there simply were not enough judges, it was because they are inexperienced and we were told when they get more experience they will be better. This has proven to be wrong. Now they say it’s because of the language- it’s the Portuguese that is making the trouble- that has been proven wrong too.”
Mr Valente says the Portuguese judges in Macau work faster and more efficiently than their Chinese colleagues because they have more experience and knowledge. He attributes this to the training methods employed in Portugal that ensure new judges have less workload and more support.
“You go to the court and see the Portuguese judges do not have anything left behind and they do not speak Chinese, the Chinese judges have a lot of work left behind,” he says. “The ones that take longer are the files that are written all in Chinese and dealt with by Chinese judges, the problem is not because they are Chinese, it is because they have less experience.”
Trilingual Macau lawyer Wang Wei Morbey says there is no doubt that the “language obstacle” can make working in the Macau legal system “extremely challenging”. Ms Wang, who is proficient in Chinese, Portuguese and English, says much of the case law needed for research purposes is nearly always in Portuguese and many lawyers do not speak Portuguese. She says relying on translation is time consuming and can cause delays and confusion because it is not always as simply as swapping one word for another. “It can be very difficult because of the language obstacle, it takes time to get a case done,” she says. “Some of the judges are pure Portuguese and many lawyers do not write or speak Portuguese.”
Ms Wang believes Macau’s legal system must stick to its Portuguese origin, but says it is in need of reform to better meet the needs of the local people. She believes this is a process that will take time and cannot be rushed. “We have to be realistic, we have to form more local judges and import more of the experienced judges from Portugal at the same time,” she says.
“We are still in a transition time, those from Portugal with more experience are more secure and quicker than the new judges, it is to be expected.”
The Public Prosecutions Office spokeswoman says it is not really a problem of differing experience levels, but a problem of language. She says the use of Portuguese in the courts is “partly responsible” for the backlogs. “The majority of cases are handled in Chinese, suspects and people involved speak Chinese, there are cases where everything has to be translated to Portuguese and this takes extra time,” she says. “Lack of translators can also slow down the process of the cases.”
The spokeswoman says recruiting more judges from Portugal could offer a “short-term solution”, but the language barrier makes it a difficult option. She says the best solution is to train local jurists and bilingual specialists with legal experience.
Ms Wang believes part of the reform needed is in Macau’s education system. She says many students are trying to balance work and study, at the same time as master Portuguese. “It is very demanding and many students have to repeat or they drop out, for the Chinese speaking students it can be extremely difficult,” she says. “Personally I think the system is far from satisfactory and there is much space to improve, many of them are learning after they start working.”
Mr Rato, Mr Valente and Mr Barros all agree Macau’s legal education system is in need of a major overhaul. There are two universities in Macau with law faculties, the University of Macau (UM) which teaches Macau law and the University of Science and Technology (MUST) which offers Chinese-language courses focused on mainland law. Last year none of about 100 graduates from MUST were accepted as trainee lawyers in Macau.
Mr Valente describes the MUST curriculum as “out of touch” and says it leaves graduates unqualified. The deans of MUST’s and UM’s law faculties were both unavailable for interview due to travel commitments.
Mr Valente is also critical of UM’s law course and believes the majority of Macau’s 117 trainee lawyers are poorly qualified. “They have no quality, the majority of them should not be allowed to practice because of the education system,” he says. “Most of them will be launched in the profession, if they pass examination the Macau Lawyers’ Association will have to register them and put them on record as full-fledged lawyers. In numbers maybe they are enough, in quality they are not.”
Mr Valente points to the number of candidates who pass the examination to become magistrates and public prosecutors in Macau as a clear indication that something is wrong. He says UM used to have higher standards, but that this has dropped at a high cost to the quality of its graduates. “In the examination of candidates willing to go for judges or public attorneys, the previous examination not the one in process now, out of 150 or 130 people, only 11 came out, the others failed,” he says. “They have around 130 this time and I believe not more than 20 for sure, but I am afraid that maybe only 10 will get admitted, it’s not enough.”
The Public Prosecutions Office spokeswoman says it would make more sense to hold examinations for prosecutors and magistrates every year, instead of every couple of years. “I do not want to express an opinion on the education system,” she explains. “The biggest problem is the examination is not held annually, if it was done every year we would get candidates every year which would help.”
