Ladies and Gentlemen,
First of all, on behalf of the Justice and Prosecution Association of Macau, I would like to extend my gratitude to all of you who arranged time to attend this Conference.
As a host in this event, it is a great opportunity for us to organize together with the Research Center of Criminal Jurisprudence of Renmin University of China, the Legal Conference on Regional Criminal Judicial Cooperation of the Macau Special Administrative Region. The topic of this Conference is of great interest to many of our friends of the legal circle present here today, due to the reason that, aside from being the first conference held in Macau with this topic, we are conscious of the fact that contacts and cooperation on the area of criminal judicial cooperation are favourable not only to the joint combat against transborder crimes, repression of crimes and protection of human rights but also to the defense and promotion of stability, development and prosperity of different regions.
At present, we are facing great influences resulting from unpredictable and unstable factors, such as, peace and security, transborder crimes, economical instability, drug crimes etc. These problems have already exceeded the limits of a State or a territory. In face of urgent necessity for a joint combat on transborder crimes, many States and territories have established different forms of cooperation agreements that resulted to many criminal judicial cooperation treaties, at international as well as regional levels. The enforcement of these agreements and treaties are our effective legal weapons in tackling transborder organized crimes.
The implementation of regional judicial cooperation involves theoretical and practical problems. It involves on one hand, theoretical values worthy of discussion and on the other, strong practical characteristics. We should review the successful experiences gained from the existing mechanism and learn from the experiences of other States or territories. In the studies about the development of its basic theories and legal basis, the setting up of a system and legislations about its functional development under the orientation of a correct legal basis will be possible. This is a responsibility that we should assume in this historic period of the implementation of the principle of “One Country Two Systems”.
Therefore, please let me take this opportunity to express our legal points of view.
1. Legal nature of Regional Criminal Judicial Cooperation
According to the nature of judicial cooperation, it can be classified as international judicial cooperation and regional judicial cooperation. The former refers to judicial cooperation between States where as the latter refers to judicial cooperation between regions with autonomous law orders within a State.
Under the principle of “One Country Two Systems”, the original judicial systems and law orders are maintained in the Macau and Hong Kong Special Administrative Regions. The two Regions enjoy legislative powers, judicial independence and the power of final adjudication. They are considered as regions with autonomous law orders independent from that of Mainland China. If Taiwan is taken into account, then China can be considered as one country with two systems and four regions (or territories) with autonomous law orders. This is the most outstanding legal nature of regional judicial cooperation.
2. Legal basis for the development of regional judicial cooperation of the MSAR on criminal matters
There are two levels of regulations: Article 93 of the Basic Law of Macau provides that the MSAR may, through consultations and in accordance with law, maintain judicial relations with the judicial organs of other parts of the Country, and they may render assistance to each other. This provision covers the essential factors of the establishment of judicial cooperation between Macau and other parts of the Country, for example, the competent authorities in this matter (apart from Macau, the other three territorial entities with autonomous law orders, that is, Mainland China, Hong Kong and Taiwan), method of establishment (through consultations), method of operation (in accordance with law) and the contents (judicial relations and assistance to each other) etc. These serve as a constitutional legal basis for the development of regional judicial cooperation of the MSAR on criminal matters.
On the other hand, the Macau Criminal Procedure Code (volumne V) in force (“relationship with authorities outside of the Region) expressly stipulates that judicial assistance can be rendered between the judicial organs of the MSAR and those outside of the Region, in accordance with bilateral agreements and international conventions or when the referred agreements or conventions do not exist, mutual legal assistance can be rendered with a supplementary application of the Criminal Procedure Code. “Judicial organs outside of Macau” refer not only to those of other States but also to those of Mainland China, Hong Kong and Taiwan. Therefore, the above mentioned provision of the Criminal Procedure Code also serves as a legal basis for the development of regional judicial cooperation of the MSAR on criminal matters.
3. Competent authorities for the development of regional judicial cooperation of the MSAR on criminal matters and the related contents
1. Competent authorities
According to article 93 of the Basic Law, the competent authorities in the matter of regional judicial cooperation of the MSAR are “the judicial organs”.
According to the Basic Law and the Judicial Organization Law of Macau, the courts and the Public Prosecutions Office are the judicial organs of Macau. However, the criminal police and the judicial-administrative organs sometimes have to intervene in the enforcement of certain duties related to judicial assistance (for example, the criminal police intervenes in the handover of fugitive offenders; the judicial-administrative organs intervene in the transference of convicted persons). Therefore, the term “judicial organs” in the Basic Law should be understood in broad sense. This means that “the judicial organs” include not only the courts and the Public Prosecutions Office but also the criminal police and judicial-administrative organs.
As for the question of who should be the judicial organs of China, Hong Kong and Taiwan in the referred matter, or the, this can be defined according to the legislation of each of these territorial entities. In order to coordinate and guarantee the correct application of law and facilitate the actual process of operation, it is necessary to appoint a liaison organ in the implementation of mutual legal assistance with different regions, to set up contact channels for the presentation and handling of rogatory letters of both sides. Now in Macau, the Public Prosecutions Office will be appointed as the only competent authority to communicate with the outside in the matter of regional judicial cooperation.
The Basic Law did not provide specific limits on the matter of regional judicial cooperation of Macau. This means that any judicial matters in which assistance is possible may fall within the ambit of cooperation, provided that consensus is reached between the parties through consultations. On the hand, the amplification of the ambit of cooperation will be advantageous not only to the defense of the Country's unification and security but also to the maintenance of stability and prosperity of each of the regions with autonomous law orders as well as to the protection of the legitimate rights of the parties concerned.
The regional judicial cooperation of Macau on criminal matters involves a vast area of contents including the following 7 topics:
1. Service of judicial documents
The service of judicial documents is an indispensable condition for the normal proceeding of investigations and trials in the ambit of criminal procedure. In Macau, judicial documents include copies of accusations and indictments, summons, judicial orders, judgements, notifications, certificates etc. In order to safeguard the legality of judicial proceedings, it is necessary to ask for assistance of judicial organs of another region to serve the judicial documents in accordance with legal procedures. At the same time, the judicial organs of Macau also have to take up the responsibility of helping to serve in Macau the judicial documents of other regions.
2. Investigation and taking of evidence
Mutual legal assistance in investigation and taking of evidence includes: to find and identify the persons involved in a criminal procedure; to render assistance in the inquiry of witnesses, offended, experts; to conduct searches, authentication, inspection, detention and other acts related to investigation and taking of evidence; to help the witness, the offended and the experts to travel to the requesting territory to carry out the judicial act; to hand over the documents and objects that serve as evidence.
3. Exchange of criminal data and information
In this aspect, the cooperation includes not only mutual assistance in the collection, handling and exchange of criminal information between Macau and Mainland China, Hong Kong and Taiwan, but also regular notification between regions of the punishments applied and the exchange of criminal records and important criminal legislations through an effective liaison mechanism.
4. Transfer of jurisdiction over criminal cases
This refers to the transfer, through consultations between judicial organs, of a case related to the conflict of jurisdiction to be handled by one judicial organ and the other judicial organs will have to provide to this organ all the information about the case.
5. Handover of fugitive offenders and proceeds of crime
This refers to the cooperation developed in the area of search and capture of fugitive offenders between different territories with autonomous law orders and the handover of these criminals to be trialed in the territory where the crime occurred as well as the recovery of proceeds of crime or remuneration obtained through commission of crimes and that are found in another territory.
6. Transfer of convicted persons
Prisioners that are serving their sentence in Macau or prisioners that are residents of Macau and are serving their sentence in other territories can be transferred to another territory to serve the sentence in accordance with an effective judgement and in observance with the related legal prerequisites.
7. Recognition and enforcement of criminal judgements
In this aspect, the double crime principle should be observed. Sentences that contain life imprisionment terms or death penalty are not included in the list of recognition and enforcement. If a region recognises, according to legal procedures, a criminal judgement passed by another, it should be responsible for the protection of the convicted person's legitimate rights and be obliged to cooperate in the enforcement of the judgement passed by that region.
Dear colleagues and friends, we believe that the cooperation between territories of autonomous law orders of a State has already gained a new legal spirit under the implementation of the Basic Laws of Hong Kong and Macau, therefore it is necessary to advance with the times, update legal concepts and explore appropriate fundamental principles for judicial cooperation. We believe that to solve the regional judicial cooperation under the observance of the principles of “One Country Two Systems”, reciprocity and high level of efficiency is a guiding concept to the resolution of the problem. To proceed progressively with pragmatic and enterprising attitudes, starting from simple matters and gradually to complicated ones, is also one of the substantial and feasible ways to solve the problem.
“The trees seem to have snows of flowers, the willow seems to have ten thousands branches”. In the same way, studies on theories also seem to be endless. The spirit of law insists us to defend and protect unconditionally the legal interests defined by law. This Conference organized by academic circles of China and Macau has as its objective, the promotion of exchange of ideas about the problem of regional judicial cooperation among the four regions of both sides of the Straits. I hope that the scholars, workers of the legal field and all other guests invited to this Conference can freely express their opinion and achieve great success, in practical and theoretical terms, in the finding of solutions to the problem of regional judicial cooperation on criminal matters.
Finally, once again, I would like to welcome and thank all of you for your attendance at the meeting.