macau basic law ii
DESCRIPTION
It assesses how Macao is perceived in the context of China's political system of governance. It defines the constraints of the principle "One Country, Two Systems" and looks for the future of autonomy in China's constitutional context.TRANSCRIPT
Macao Basic Law and the future of the MSAR
Arnaldo M.A. GonçalvesAssistant Professor of International Relations (Macau Polytechnic Institute);
Researcher on International Law and Asian Studies
University of Macau, 18.10.2007
Starting point Macao is a special territorial entity of the People’s
Republic of China since 20.12.1999 Before it was a territory under Portuguese administration
for more than 400 years, when the Portuguese arrived at Macao
That quality was given to it by act of sovereignty of the PRC represented by the President of the Republic – Jiang Zemin
This was possible following the agreement between the governments of China and Portugal on how to handle the Macau issue (JDQM – 13.04.1987)
Macao and
Guandong Province
Starting point
• Jiang Zemin promulgated by decree of March 31, 1993, the Basic Law of MSAR, that defines the status of the region and includes additional rules referring to the selection of the Chief Executive, the creation of the Macau Legislative Assembly, the National laws applied in Macao and the banner and flag of the MSAR
Administrative Divisions of the People’s Republic of China
Administrative Divisions of China
• China is divided into 3 layers of territorial divisions:– Provinces, autonomous regions and municipalities
directly under the Central Government– Provinces and autonomous regions are divided into
autonomous prefectures, counties, autonomous counties and cities
– Counties and autonomous counties are divided into townships, ethnic townships
Source: Article 30 of the Constitution of the PRC
Administrative Divisions of China
• And includes a special territorial entity– Special Administrative Regions that are
approved by the National People’s Congress (NPC) under a special law (a basic law) that defines their nature and system “in the light of special conditions”
Source: Article 31 of the CPRC
Constitution of the PRC and article 31
Constitutional and Political foundations on the creation of MSAR
• Constitutional foundation Article 31 of the CPRC
•Political foundation The Theory (or principle)
of One Country, Two Systems elaborated
by former Chinese paramount leader Deng Xiao Ping
What the One Country, Two Systems Theory says
– On the premise of adhering to the principle of national unification, the socialist system will be put to practice in the main body of the country, while the existing capitalist system and way of living will remain unchanged for a long period of time in Taiwan, Hong Kong and Macau
Source: Deng Xiao Ping, “One Country, Two Systems” June 22, 1984, extract of talks with Hong Kong entrepreneurs included in Fundamental Issues in Present-Day China
What is the reasoning?
• China could have recovered its sovereignty over both territories by two means: the use of force or through negotiation
• China preferred negotiation for pragmatic reasons:China would appear as a responsible country in the
international community’s eyesChina would confirm that the revolutionary phase of its
foreign policy has ended with the death of Mao ZedongChina would use this strategy to attract capital,
investment, and multinational corporations involving them into pushing China’s economy
A sequential set of guaranties set by Central Authorities
• The MSAR will be able to exercise a high degree of autonomy…which means that it will govern itself as an autonomous entity under the supervision of the Central Government
• The MSAR will enjoy executive, legislative and independent judicial power…which means Macao will have its Chief of Government, its proper Parliament, its separated courts, including the Court of Final Appeal
A sequential set of guaranties set by Central Authorities
• Macao residents will benefit from the rights and freedom they are entitled to under Portuguese law (and during Portuguese rule) (a chapter of MBL details the frame of fundamental rights)
• Socialist systems and policies (on the continent) will not be applied; the capitalist system and way of life shall remain unchanged for 50 years
Source: articles 2 and 4 of MBL (Hong Kong Basic Law is identical)
A sequential set of guaranties set by Central Authorities
• The right of private ownership of property would be assured
• The laws previously in force would be maintained except for those inconsistent with the Basic Law or amended accordingly
• Portuguese language continues to be used as official language side-to-side with Mandarin
• The MSAR will have a flag and regional emblem
Political orbits
Mainland’s politicalsystem and socialist-run
logic
Macau
Hong Kong
Taiwan
Time of coexistence of the Two Systems
• 50 years starting from the empowerment of the legitimate organs of government in the SARs
• In the case of Macao that deadline ends at December 2049
First problematical question
Will this exemption from the application of the socialist-set of laws and logic continue after 2049?
We don’t know. We may only speculate.
Macao as an autonomous region in China
• Was this the best option to ensure the continuation of Macao’s multicultural identity?
• Probably yes. China has blocked in November 1972 (pushing for an UN resolution removing Macau and Hong Kong from the list of non-self governing territories) any change for self-determination under the UN Charter
• Great Britain has proposed to China to continue administrating Hong Kong under China’s supervision - that proposal was strongly rejected by Deng
System of governance3 Branches
LEJ1st layer
2nd
3d
3 Layers
Chief Executive
• Elected by a “broad” representative Election Committee composed of 300 members and appointed by the Central Government
• The election committee responds to a certain composition along functional lines (or sectors of activity)
• The Chief Executive serves for a 5 years term and may serve another (identical) term
• Second problematical question:Is this a democratic form of electing the core of Macao’s
political government? Hardly.
Chief Executive
He enjoys very broad powers, in what is typical of executive-led systems of government (like presidential and semi-presidential)
He is politically responsible both to the Legislative Assembly and the Central People’s Government
What’s next?A second election to elect the 2nd Chief Executive
will come on 2009
Chief Executive
• What are the rules for electing the next?• The same (Annex I of MBL). Unless an
alternative proposal is submitted to the Standing Committee of the National People’s Congress after collecting the approval of two thirds of the MLA members and the agreement of the (present) Chief Executive
• Source: Paragraph 7 of Annex I
Legislative Assembly
• Legislative organ of Macau SAR• Has basic functions:- To enact, amend, suspend or repeal laws;- To examine and approve budgets; and examine the report on
audit;- To decide on taxation and approve debts to be undertaken by
the government;- To debate the policy addresses by the Chief Executive;- To debate any issue concerning public interests;- To receive and handle complaints from Macao residents;
Legislative Assembly
• Composed by 29 members (2nd term) elected in a precise proportion:– 10 by “universal” suffrage,
– 12 by indirect suffrage,
– 7 nominated by the Chief Executive.
• The election is conducted according with the prescriptions of an Electoral Law, previously proposed by the Government and approved by the Legislative Assembly
Legislative Assembly
Committee
President of theLA•Shanghai native•Entrepreneur•CPPCC•BLDC
Susana ChouSusana Chou
• Vice-Pres. •Labour Union• Pro-Beijing• Probably CCP •Legislator NPC• Beijing operative
Lau Cheok VaLau Cheok Va• 1st Secretary• Lawyer• Local economicInterests- Macanese lobbying• BLCC•Economic Council
Leonel AlvesLeonel Alves• 2nd Secretary •Entrepreneur w/ Good connections China• Pro-Beijing•Vice-Pre MCA• Legislator NPC
Kou Hoi InKou Hoi In
All them elected by Indirect suffrage
Legislative Assembly
• Balance of power
• 29 members:
– 10 CCP cadres
– 12 entrepreneurial/
corporative interests: Macao, Fujian, Zhuhai
– 3 non-aligned w/ Beijing (+-10%)
– 2 Macanese lobbying
– 15 non-enterpreneurial interests
– 3 lawyers/jurists
Scenarios of evolution for the political landscape
Integration andabsorption
Continuation
Evolution towards a polycentric constitutional system
Fragmentationand chaos
Scenarios of evolution
• 1st Scenario….Integration– Integration in Guandong province as a district w/ some
sort of autonomy and self-governance
– Has many supporters in the entrepreneurial community
– Has many practical advantages and is favored by a fast economic regional integration in the Pearl River Delta
•2nd Scenario…. Continuation–Maintenance as a Special Administrative Region after 2049 for more…..years–Can be an option if the “memory” of the autonomy is not eroded by the course of time–May be secretly wiched by Beijing as a counterpower to the Guandong Viceroy
Scenarios of evolution
• 3d Scenario….Political Opening– China evolves towards a multinational federal system
at the same time as China democratizes its political system – the end of Communist-monolithic rule
– Macao will be a valid “state”, or “länder”, economic self-sufficient and built around a core business activity (gaming industry and associated tourist activities)
•4th Scenario….China breaks up– Macao would not resist to factional struggles and
would vanish
Factors in the evolution of the Macao political system
Lack of a civic culture in the Macao society: apathy, lack of concern for the future, lack of generational responsibility
Improbability of a serious revision of the electoral law and consolidation of the functional and elite system of political representation
Why? The entrepreneurial elite who controls the balance of power doesn’t Why? The entrepreneurial elite who controls the balance of power doesn’t want it to change or democratize. Why? Because it will loose its powerwant it to change or democratize. Why? Because it will loose its power
Factors in the evolution of the Macao political system
Dependence on the political evolution of Hong Kong as a SAR (What is going to happen with the Green Paper on the Constitutional Development?)
Capacity of the 5th generation of Chinese Communist leaders appointed by CCP Congress to transform China in a more open, just and pluralistic society
What means “deepening political restructuring and keep to the correct political orientation”? (Hu Jintao, 17th Congress, 15.10.2007)
Final factor