Unlawful Suppression of Rally against Police Brutality in Hong Kong
The organising team of the Macau Rally against Police Brutality in Hong Kong is aghast at the decision by the Court of Final Appeal (TUI) of Macau to uphold the police’s unlawful ban on the assembly.
Putting the ongoing political dispute aside, we believe that speaking against torture and police brutality is a matter of conscience rather than political orientation. The issue of police brutality in Hong Kong has been raised by the UN Human Rights High Commissioner, Amnesty International and many more international organisations.
The organisers of the rally wish to call on the Hong Kong Police Force to adhere to their legal obligations not to use torture under international law. The international prohibition of torture is absolute and does not allow any exception. Such prohibition has attained the status of a peremptory norm (jus cogens) in international law. All police and military authorities must refrain from the use of torture in any circumstance notwithstanding the existence of relevant domestic legislation or accession to a treaty. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
The most dangerous part of the judgement is that the TUI has made official proclamations a prerequisite for the people’s exercise of freedom of assembly. In the judgement, the TUI echoed the Macau police’s argument “no public authority in Hong Kong has found that the actions of the police amount to [torture or other Cruel, Inhuman or Degrading Treatment or Punishment] as charged by the applicants” as a basis for determination of “purposes [of the assembly] against the law”. The ruling effectively grants unfettered powers to the Macau police to carry out political censorship on the topics of assemblies and demonstrations, to an extent which an assembly about legal obligations (jus cogens norms in this case) could be considered “purposes against the law”. From then on, Macau citizens could be arbitrarily prohibited from organising a demonstration or an assembly about an opinion not officially recognised by the government.
Furthermore, the TUI unlawfully ignored the arguments presented by the organisers. The organisers presented twelve main legal arguments in the submission. However, the TUI selectively deliberated on only three of them. Such ignorance would render a decision invalid. All arguments of the applicants must be considered unless one or some of the arguments would suffice for the acceptance of the application. (For details, see Article 74(5) of the Litigation Administrative Process Code; Article 563(2) and Article 571(1)(d) of the Code of Civil Procedure; Judgement in TUI case no. 20/2002)
The judgement deviates from the jurisprudence on freedom of expression, freedom of assembly and prohibition of torture of highly respected international and regional courts. The TUI is putting Macau’s judiciary system further away from those of the civilised world. The blatant violation of fundamental rights is making Macau a more unconvincing instance of “one country two systems”.
Despite the unlawful oppression, we should seize every chance to denounce police brutality against the comrades in Hong Kong.
Last but not least, we would like to thank honourable judge Viriato Manuel Pinheiro de Lima for his professionalism. We believe that history will appreciate the value of his dissenting opinion.
The full text of the organisers’ appeal application (in Chinese only) is available at https://www.scribd.com/document/428302002/
The judgement of TUI case 94/2019 is available at http://www.court.gov.mo/sentence/zh-b94c1d08b129e03f.pdf (in Chinese) or http://www.court.gov.mo/sentence/pt-b94c1d08b129e03f.pdf (in Portuguese).
