The proposal, which will frame the National Security Defense Commission (CDSE) in Macau, is set for discussion and a general vote this afternoon by lawmakers in the Legislative Assembly before moving on for committee analysis.
According to Macau-based lawyer Luís Almeida Pinto, the document “contains disturbing elements regarding the constitutional functioning of various powers, as well as certain matters of rights, freedoms, and guarantees enshrined in the ‘Constitution’ of Macau: the Basic Law.”
Anticipating amendments to the Basic Law of the Judiciary, the proposal stipulates that the selection of a lawyer for national security cases must be approved by a judge, who will then forward the request to the CDSE for a binding and non-appealable opinion.
The proposed special authorization may occur in criminal proceedings or others when there are “substantiated reasons to believe that there is a need to protect the interests of state security.”
Almeida Pinto cites the Basic Law, which guarantees “access to the law, to the courts, and assistance by a lawyer in the defense of one’s legitimate rights and interests,” emphasizing that it should be the defendant’s right to “freely choose the lawyer who best serves them.” He asserts that “this seems to be a provision that will be unconstitutional once approved and applied concretely.”
In addition to constituting “a violation of the Basic Law,” which has constitutional force in Macau, Pedro Leal, a practicing lawyer in the territory for several decades, points out a clear “collision” between what is proposed and “the decree regulating the Bar Association and the very Statute” of the Lawyer concerning the free choice of a defense attorney.
On July 30, 2025, Macau police arrested Au for violating article 13 of the national security law, which carries a maximum 10-year sentence, the first arrest under this law in the city
Leal acknowledges that this is “the most debatable issue” of the proposal, although he agrees with the legislative initiative. “China pays special attention to security issues. It is a world power and does not want any interference. I understand that position and realize they want to avoid changes to the status quo. (…) If they intend to do things, they should do them correctly,” he adds.
Almeida Pinto also considers “unacceptable the regime proposed” for “the scrutiny of lawyers” wishing to represent a defendant in national security cases. Attached to the request made by the lawyers to the judge must be, among other elements, information about the lawyer’s family members, nationality, and connections to foreign entities or individuals.
This requirement constitutes a “true investigation into personal life,” when “what is at stake is merely the exercise of the profession for which they are duly registered and authorized in the Bar Association of Macau,” he notes.
Leal assesses this demand as “extremely vague and entirely impossible” to fulfill, suggesting it implies that a non-Chinese lawyer would not be permitted to represent in these cases—highlighting that only Chinese judges are allowed to intervene in national security matters.
Another concern raised by legal expert António Katchi is the potential delay in the CDSE’s issuance of its opinion. The proposal does not clarify this aspect, so “the Administrative Procedure Code,” which sets a 15-day timeline for administrative body actions, “should” apply.
Katchi questions, “Will the CDSE follow this interpretation, or will it, without the possibility of being contested by any court, simply defer the issue until its next ordinary semi-annual meeting?”
He adds that if the opinion is negative and the process must be repeated with a new legal representative, “how many months or years will the defendant, who remains deprived of their freedom, be without a lawyer?”
Referring to the principle of judicial independence guaranteed by the Basic Law, Katchi concludes that “it is completely inadmissible to subject a judicial decision to a binding opinion from an administrative body, notably the CDSE.”
He further emphasizes the importance of a trusting relationship between the client and attorney, particularly for individuals at risk of imprisonment, who must be defended by a lawyer genuinely motivated for the cause and well-versed in the matter at hand.
In addition to the Basic Law and the Joint Declaration signed by Lisbon and Beijing in 1987, which established rules for Macau following the handover, Katchi cites another legal provision contradicted by the proposal: the International Covenant on Civil and Political Rights (ICCPR), which states that “every person accused of a crime shall have the right, on an equal footing, (…) to present their case in court and to defend themselves personally or to be assisted by a chosen counsel.”
The ICCPR is one of the instruments comprising the UN International Bill of Human Rights. In 1992, when Macau was still a Portuguese-administered territory, Lisbon extended this convention to the region. Although China signed the treaty in 1998, it has never ratified it and is thus not bound by its provisions.
The Basic Law, Katchi explains, indicates that restrictions on fundamental rights, including the right to legal assistance, “cannot contradict the provisions of the ICCPR.”
