The Invisible Constitution in Comparative Perspective

Portugal (Alphen aan den Rijn: Wolters Kluwer, 2nd edn, 2015) 129–30.

59 

The TUI that was established upon the establishment of the MSAR consisted of a bench of 

three judges. The President, Sam Hou-fai, was born in Mainland China and aged thirty-eight 

at the time of his appointment in December 1999. He had, prior to his appointment to the 

TUI, worked in the Macau judicial system for four years and as a judge since 1997. Of the 

other two judges, Justice Virato Manuel Pinheiro de Lima had more than twenty years of 

judicial experience, the last seven years of which were spent in Macau as a judge. The third 

judge, Justice Chu Kin, was the first Chinese Macanese judge (mentioned above), having 

been appointed as a judge in 1996. Justice Chu Kin was declared in 2011 to be incapable of 

holding office due to critical injuries suffered in a traffic accident in Mainland China and was 

therefore subject to compulsory retirement. His vacancy was filled by Judge Song Man-lei, 

formerly the first female prosecutor of Chinese origin in Macau when she was appointed to 

that position in September 1996.

60 

This may include resolving differences between two TUI judgments; see Godinho and Cardi-

nal, Supra note 57, 613.

61 

Ibid.

, 627–30 (discussing the case of Ao Man Long, a principal official in charge of land policy 

who, among other things, solicited bribes from property developers). See also ‘MDT inter-

view/Paulo Cardinal, Legal Expert: The Denial of the Right of Appeal is Inadequate and Embar-

rassing’,  Macau Daily Times, 8 March 2016 (accessible at: 

http://macaudailytimes.com.mo/ 

mdt-interview-paulo-cardinal-legal-expert-denial-right-appeal-inadequate-embarrassing.html

) 

(discussing the case of Ho Chio Meng, a former Prosecutor-General who had been accused of 

corruptly awarding the Prosecutor’s Office’s contracts to associates) (last accessed on 28 May 2018).

---

248 

Albert H. Y. Chen and P. Y. Lo

For our present purposes, two aspects of the TUI’s activities are examined 

by reading the Chinese version of its judgments.

62

 The first concerns its power 

to review legislation on the basis of consistency with the MBL. The second 

involves its application of the principle of proportionality.

8.4.2.  Judicial Review of Legislation and Legal 

Norms Having Legislative Effect

Unlike the Hong Kong Court of Final Appeal, the TUI had not been ini-

tially active in developing a ‘constitutional jurisdiction’. Rather, in 2000, as 

Paulo Cardinal had described, it dealt ‘a deadly blow’ to the availability of 

the traditional continental mechanisms of constitutional review, namely the 

amparo and constitutionality appeal.

63

 Jiang Chaoyang considered that the 

absence of jurisdiction to entertain challenges to the validity of legislation or 

administrative regulations on the ground of contravention with the MBL was 

well justified under art. 19(2) of the MBL as well as the previous organic law 

of the Macau judiciary.

64

 On the other hand, the TUI explained in Case No 

9/2006 (25 October 2006) that the Code of Administrative Procedure (Código 

do Procedimento Administrativo) of the MSAR was at first enacted with an 

expectation that later there would be conferred upon the TUI an appellate 

jurisdiction to examine the validity of legal enactments on the ground of 

inconsistency with the MBL, but this expected jurisdiction of the TUI was 

not subsequently provided for, with the result that art. 44 of the Law on the 

Organisation of the Judiciary (Lei de Bases da Organização Judiciária) of the 

62 

Judgments of the TUI are prepared by one of the judges of the three-person bench hearing the 

case; this designated author judge or ‘relator’ can choose to write the judgment in Chinese or 

Portuguese, one of the two official languages of the MSAR. Judgments of the TUI are accessi-

ble in their Chinese version at: 

www.court.gov.mo/c/cdefault.htm

.

63 

See Godinho and Cardinal, Supra note 57, 621, referring to TUI Case No 1/2000 (16 February 2000) 

and TUI Case No 2/2000 (23 February 2000) in respect of amparo and TUI Case No 8/2000 (29 

March 2000) and TUI Case No 4/2000 (2 February 2000) in respect of constitutionality appeal.

64 

Jiang Chaoyang, ‘The judicial application of the Macau Basic Law’ 23(2) Journal of Nation-