Stéphane Bonifassi: “Respect for suspect rights problematic in Macau”

The lengthy proceedings of the Commission Against Corruption (CCAC) coupled with intensive media coverage “has made the respect for suspect rights problematic in Macau”, said Stéphane Bonifassi, co-director of Human Rights and Defence at the International Association of Lawyers (UIA), in an exclusive interview with Macau Daily Times. The French lawyer also called for supervision of CCAC, for “no governmental agency can ever be completely independent, it has to be accountable for what it’s doing”. Bonifassi also questioned: “Does it really make it an independent commissioner if he is discretionary nominated by the Chief Executive?”

Macau Daily TImes (MDT) – About a year ago, the UIA sent an open letter to CCAC expressing concern for the “violation of some basic principles of international and domestic law”, especially in the Ao Man Long case. A month later the now former Commissioner wrote back…
Stéphane Bonifassi (S.B.) – Yes, the Commissioner took the time to write us an answer. It was a very elaborate reply, very focused and giving us precise answers about the concerns we had. He listed quite a few issues we had and gave us reasonable assurances.

MDT – As co-author of the letter to CCAC, were you happy with the answers?
S.B. – Well, at the end of the day, what I would retain is that the use of media was an issue. How you handle the media when you’re a commission like this was a serious question and it’s in a way connected to the length of the investigation. What is said on international agreements on human rights is that media should not be used as a tool to prevent a fair trial for the suspects. Every country can adapt to this and so, for example, the Americans have a rule about this, according to which they select the members of the jury to assure they were not overly influenced by the media stance. This can be a worldwide problem: if you have very lengthy proceedings, which seems to be the case with the CCAC, and at the same time there is media covering the investigations that are going, and the suspect doesn’t really know what’s going on because he cannot access the case files. You are in a situation where this balance is problematic. In France we have rules to protect suspects from media pressure and the secrecy of investigation is one of them.

MDT – Could the media coverage in Macau hinder a fair trial for the corruption suspects?
S.B. – From what we understood, the investigations have been going on for a long time and there was media coverage, with information given by the Commission itself. Meanwhile the suspects are not in a position to say: “Look, what you are reporting is wrong, for that and that reasons”, because they don’t even know what the investigation is about. If the inquiry hadn’t lasted for so long, then perhaps this all can be relaxed and other ways can be found to balance this. But for years you’ve been going on, “This man is guilty”, and the whole public is thinking he is guilty. So then it’s very difficult for anyone to come and say, “No, he’s innocent”.

MDT – So even a judge would find it difficult to decide against public opinion?
S.B. – The Macau judiciary system has professional judges, so I suppose we tend to consider that they are less influenced by the media than a jury. But even professional judges are humans.
MDT – UIA also showed “alarm” that the CCAC is not obligated to conclude the investigation in the period due to the law. Should there be a deadline?
S.B. – In international agreements on human rights there is generally a rule about reasonable delay. The European Court said that indeed for very complex cases reasonable delay should be understood in a special way, and corruption are usually difficult cases to investigate – very often you need to get information from abroad, so you need time. Even though the investigation might last for a long time it should still be reasonable, but reasonable should be understood in a different way. In my mind, what is really wrong in this case are the lengthy proceedings along with the intensive media coverage. So you double the effect of those two problems and that’s what we felt has made the respect for suspect rights problematic in Macau and that’s why we wrote to the Commission in the first place.

MDT – Should there be, even considering reasonable delay, a specific time frame for CCAC investigations?
S.B. – Personally I don’t think so. Of course if you say 20 years, that’s just not reasonable. Setting time limits is not feasible, but I do think there should be some sort of judicial review able to say, “Look, you’ve been investigating this now for 4 years, you’ve been saying this person is under investigation for all that time and where is the accusation?” Should you be allowed to go on if you haven’t found anything? In the French system, if the investigation is just going on and on, you can appeal to the Court of Appeal.

MDT – But in Macau there is actually no entity that fully supervises the Commission...
S.B. – There should always be someone controlling people trusted with public powers. If you let people free they simply have a tendency to abuse. Investigating cases can go on and on for years, they won’t drop the investigation, they will keep it going. It’s a problem also in France and in other countries. Probably what we can say about this situation is that it’s not unique to Macau. But it’s problematic and we feel a situation like this shouldn’t be accepted.

Stéphane Bonifassi:  ‘One of the European Convention for the Protection of Human Rights and Fundamental Freedoms protocols allows an exception to the right to an appeal when the suspect was judged by the highest court.’

MDT – Also CCAC doesn’t have to keep the Public Prosecution Office informed of the cases under investigation....
S.B. – I guess it’s the same issue all over again. Who controls the length of the proceedings and how things are handled? No governmental agency can ever be completely independent, it has to be accountable for what it’s doing and there should be a way to say, “This going out of hand”. It’s true that the purpose of an independent commission is to be independent, but the problem is the way the Commissioner is nominated. Does it really make it an independent commissioner if he is discretionary nominated by the Chief Executive? It should be a little more complex than that because there’s a contradiction here.

MDT – The CCAC “is nominated and exonerated” by the Beijing Government and “it responds only to the Chief Executive”, so it “can in addition be considered a political organism”, said the Regional UIA Secretary and local lawyer João Miguel Barros. Do you agree with this warning?
S.B. – Of course these kinds of tools can be used against your political enemies. Nomination is a sensitive subject, yes. I suspect there should be some parliamentary review over these nominations, like in the USA. The question is also whether or not they will only go after their enemies and not their friends. Nomination of people in charge of independent agencies with investigative powers is a very sensitive subject and there should be a sort of control, by the parliament or by the judiciary, perhaps.

MDT – Ao Man Long was not able to appeal his conviction of 27 years imprisonment for corruption because he was tried by the Court of Final Appeal. What is the UIA’s opinion on this issue?
S.B. – Well, everyone should have the right to an appeal, especially on such a heavy sentence. And we have had complaints about the way the trial and investigation of Ao Man Long’s case were conducted so there are even more questions. On their reply to our letter, the Commission didn’t mention this problem; they just said the Macau law is like that. Nonetheless, one of the European Convention for the Protection of Human Rights and Fundamental Freedoms protocols allows an exception to the right to an appeal when the suspect was judged by the highest court.

MDT – How important could the expansion of CCAC’s investigation powers be to private commercial corruption?
S.B. – As long as they do it according to the rule of law, there is no problem there. But there have been big commercial bribery cases and they’re difficult cases as well. We don’t see a lot of companies being prosecuted for this kind of accusation in France. There have been a few cases in Germany connected to the supply of large markets and we think it’s a very large problem.

V.Q.