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Albert H. Y. Chen and P. Y. Lo
that the constitutional issues raised by the impugned legislation on Legislative
Council by-elections involved political or policy considerations.
55
8.4. Constitutional Judicial Review and
Proportionality Analysis in Macau
8.4.1. The Judicial Transition of Macau
The judicial system of Macau had remained relatively less developed in the
course of history. Before 1990, there were established in Macau only courts
of first instance jurisdiction belonging to the judicial district of Lisbon, with
the result that appeals from first instance decisions had to be heard and deter-
mined in the intermediate and supreme courts of Portugal. Judges were then
solely of Portuguese in origin appointed to positions in the Macanese courts
from the Portuguese judicial establishment. In 1990, the Estatuto Organico de
Macau (or the Organic Statute of Macau) was amended to make specific pro-
vision for an autonomous judiciary for Macau of independent courts subject
only to law, even though this had already been guaranteed in the Portuguese
constitution.
56
Later in 1991 and 1992, legislative changes separated the judici-
ary of Macau from that of Portugal and established a court of second instance,
which functioned as the apex court in Macau, save and except in relation to
constitutional and certain administrative matters, until the end of Portuguese
administration in 1999. The signing of the SPJD and the enactment of the
MBL required rapid localisation both of the laws and the judiciary in Macau,
but it was only in 1996 that the first Macanese judge of Chinese origin was
appointed.
57
55
(2017) 20 HKCFAR 353.
56
See the Estatuto Organico de Macau, arts. 51–3 (as amended by Lei No 13-A/90); and Paulo
Cardinal, ‘Macau: Transformation of an Historic Autonomy’, in Yash Ghai and Sophia Wood-
man (eds.), Practising Self-Government: A Comparative Study of Autonomous Regions (Cam-
bridge: Cambridge University Press, 2013) 386–7 (referring to art. 292(5) of the Portuguese
Constitution).
57
See Wei Dan, ‘Macao’s Legal System Under Globalization and Regional Integration: Between
Tradition and Evolution’ (2014) 9(2) Frontiers of Law in China 233, 234–5, 244–9; Jorge Godinho
and Paulo Cardinal, ‘Macau’s Court of Final Appeal’ in Simon Young and Yash Ghai, Hong
Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (Cam-
bridge: Cambridge University Press, 2014) 610–11; Huang Henghui, A Brief History of Macau
Law (Aomen falü jianshi 澳門法律簡史) (Hong Kong: Joint Publishing (Hong Kong) Ltd,
2015) 75–92 (in Chinese). For greater detail, see Alberto Martins and Vitalino Canas, The
Amendments to the Estatuto Organico de Macau (accessible at:
http://library.gov.mo/macreturn/
DATA/A12-355/index.htm
) (last accessed 5 April 2016).
The Constitutional Orders of ‘One Country, Two Systems’
247
Another important change made to the Estatuto Organico de Macau in
1990 concerned the laws that the Macanese courts may apply in the adju-
dication of cases. Article 41 of the Estatuto Organico de Macau declared,
among others, that the Macanese courts may not, in respect of matters placed
before them for adjudication, apply norms (‘normas’) that are inconsistent
with the Portuguese constitution, the Estatuto Organico de Macau or princi-
ples established by them. Nevertheless, as Alberto Martins and Vitalino Canas
had pointed out, the jurisdiction of abstract review of laws belonged to the
Portuguese constitutional court.
58
The MBL required the establishment of a court of final instance exercising
the power of final adjudication of the judicial power of the MSAR in art. 84.
The Macau Court of Final Appeal (Tribunal de Ultima Instancia or TUI) is
a court consisting of three members and exercises its jurisdiction usually by
way of hearing appeals from the lower courts.
59
The TUI is also vested with the
judicial function of ensuring the uniformity of judicial decisions in Macau,
60
the original jurisdiction of conducting criminal proceedings against principal
officials accused of crimes committed in respect of the performance of their
duties,
61
and the appellate jurisdiction in respect of restrictions on the right of
assembly and protest imposed by the police authority of Macau.
58
See Martins and Canas, Supra note 57. See also Jorge Bacelar Gouveia, Constitutional Law in
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