One Country, Two Systems, Three Legal Orders - Perspectives of Evolution - Essays on Macau's Autonomy after the Resumption of Sovereignty by China

von: Jorge Oliveira, Paulo Cardinal

Springer-Verlag, 2009

ISBN: 9783540685722 , 826 Seiten

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One Country, Two Systems, Three Legal Orders - Perspectives of Evolution - Essays on Macau's Autonomy after the Resumption of Sovereignty by China


 

Preface

5

Contents

7

Contributors

13

Opening Ceremony

18

Welcome Address by the Secretary for Administration and Justice

19

Speech by the Head of the Office of the European Union Commission in Hong Kong and Macao SARs

21

Address by the Project Director

23

Panel 1 Evolution and Interaction of the Three Legal Systems: Romano-Germanic, Common Law, Socialist

27

The Intersection of Chinese Law and the Common Law in the Special Administrative Region of Hong Kong: Question of Technique or Politics?

28

1 The Argument

28

2 The Context of the Common Law

31

3 The Common Law in the Basic Law

33

4 The Interface Between Chinese and Hong Kong Legal Systems

35

5 The Management of the Interface and the Mediation Between the Legal Systems

36

5.1 Constitutional Jurisdiction of Hong Kong Courts

36

5.2 The Approach of the Hong Kong Courts to Interpretation

44

5.3 Jurisdiction of the NPCSC

50

5.4 The Approach of the NPCSC to Interpretation

54

5.5 Comments on Methods of Interpretation

59

6 The Triumph of the Civil Law or the Might of the Chinese Communist Party?

60

References

64

Law of Things in the Macau Civil Code: An Extension of the Romano–Germanic System Built Upon the Classical Concept of Ownership

66

1 Introduction

66

1.1 As to Why This Topic was Chosen

66

1.2 As to the Term Law of Things

66

1.3 Method and Sequence

67

1.4 Reserves

68

2 A Review of the Formal Aspect of the Law of Things in the Macau Civil Code: In Search of a Tradition

68

2.1 The Basic Structure of the Macau Civil Code

68

2.2 The Possible Legal Tradition Hidden Behind This Structure

68

3 The Formation of a Tradition of Ownership

70

4 A Disruption of the Ownership Tradition

71

5 The Origin and Consequences of a Contorted Interpretation of the Ownership Tradition

74

6 The Convergence of Ownership Tradition with the Aristotelian Tradition

79

7 The Extension of the Ownership Tradition from Portugal to Macau

80

8 The Possibility of Continuation of the Tradition of Ownership

85

References

87

Legal Transplants and Economic Development: Civil Law Vs. Common Law?

89

1 Introduction

89

2 Why Legal Transplants?

90

3 Legal Transplants and Economic Development

98

4 A First Conclusion

100

References

101

Modernisation, Westernisation, and Globalisation: Legal Transplant in China

104

1 Introduction

104

2 The Beginning of Modernisation – The Wholesale Westernisation of Chinese Law

105

2.1 Constitutional and Political Reform at Gunpoint

105

2.2 The Beginning of Westernisation of Chinese Law

107

2.3 A Second-Hand Introduction of the Continental Civil Law Model

108

3 A Balancing Act Between Westernisation and Modernisation

109

3.1 The Establishment of a Continental Civil Law System in China

109

3.2 Between Westernisation and Modernisation

110

4 Behind the Ideological Mask – The Second-Hand Civil Law Tradition Continues

113

4.1 The Short-Lived Triumph of the Soviet Model

113

4.2 Mixed Influences Under Utilitarian and Instrumentalist Guidelines

114

5 Globalisation and ‘Rational’ Law

117

5.1 ‘Rational’ Law and Bold Legal Transplant

117

5.2 From Western Law to International Law

120

6 Concluding Remarks – The Search for Chinese Law Continues

121

References

124

Comments Globalization and the Politics of Comparative Law

128

Comments “Law of the Things in the Macao Civil Code: An Extension of the Roman–Germanic System Built Upon the Classic Concept of Ownership”

130

Scotland: The Constitutional Protection of a Mixed Legal System

132

1 Introducton

132

2 The Scottish Devolution Settlement in Outline

134

3 The Mixed Legal System of Scotland

135

4 Devolution and the Other (New Labour) Constitutional Reforms

140

5 Conclusions

153

References

153

The South-Tyrol Autonomy in Italy

155

Preface

155

1 The International Foundation of Autonomy

156

1.1 Historical and Political Background

156

1.2 The International Agreement and First Regional Statute

159

1.3 Specific Treaty Arrangements

162

2 The Local Foundations of Autonomy

162

2.1 The Purposes of Autonomy

162

2.2 Constitutional Provisions for Autonomy

163

2.3 The Relationship of the Constitution of the Autonomous Region to the National Constitution

163

2.4 The Scope of the Autonomous Region to Make and Adopt its Own Constitution

164

2.5 Interpretation and Implementation of Constitutional/Legal Provisions for Autonomy

165

3 The Institutions of Autonomy

165

3.1 The Structure and Composition of Governments Institutions at the Autonomous Level and Relations Between Them

165

3.2 The Relations Between Institutions at the National and Autonomous Levels

167

3.3 The Scheme for the Division of Powers Between the National and Autonomous Governments

168

4 The Methods of Autonomy

175

4.1 Methods of Cooperation and Consultations Between Different Levels of Government

175

4.2 Methods of Dispute Resolutions

175

4.3 Notions of State or Parliamentary Sovereignty

176

4.4 The Relative Size of the Autonomous Region Compared to the State as a Whole

176

4.5 Differing Legal Traditions Between the State and the Autonomous Region

177

5 Conclusion: Autonomy for Peace

181

References

182

The Europeanization of Law

183

1 Introduction

183

2 Europeanization of Law: Brief Analysis

185

2.1 First Perspective: Direct Legal Integration

185

2.2 Second Perspective: Indirect Legal Integration

188

2.3 Third Perspective: Beyond EU Boundaries

193

3 Concluding Remarks

199

References

201

The Notion of Reparations as a Restorative Justice Measure

203

1 Introduction

203

2 International Law

205

3 Reparation Justice Theories

207

3.1 Corrective Justice

207

3.2 Distributive Justice

208

3.3 Restorative Justice

209

4 Some International Examples of Reparations

211

4.1 Australia

212

4.2 Canada

213

4.3 Ireland

214

4.4 Japanese War Crimes (Particularly Sex Slaves)

215

5 Conclusion

216

References

217

Comments - Jorge Godinho

219

Comments - Zhenmin Wang

222

Panel 2 Evolution of the Judicial Systems – Role of Public Prosecution, Role of the Lawyers, Specialised Courts, Judicial Guarantees of Fundamental Rights

225

Lawyers, the Protection of Human Rights and Harmonious Society

226

1 The Protection of Human Rights and a Harmonious Society

226

1.1 A Harmonious Society is a Society Governed by Law, While the Protection of Human is Due Justice of a Harmonious Society

226

1.2 New Development and Existing Inharmonious Factors on the Protection of Chinese Human Rights

227

2 Lawyers and the Protection of Human Rights

228

3 Lawyers and the Structuring of a Harmonious Society

229

The Judicial Guarantees of Fundamental Rights in the Macau Legal System: A Parcours Under the Focus of Continuity and of Autonomy

230

1 Some Preliminary Remarks: To Lay the Buoys that will Guide the Journey

230

2 A Glance at Macau’s Juridical-Political History: Anomaly in the Annals … and Shaping the Future

232

3 The Continuity Principle as the Transition Process Master Guarantee: The Joint Declaration of Macau from Here to (Almost) Eternity

236

3.1 The Transition Process

237

3.2 The Continuity Principle

240

4 The Macau S.A.R. Autonomy: An Internationally Plugged Autonomy

242

4.1 The Joint Declaration: Genesis and Anchor of the Macau Autonomy

243

4.2 The PRC Constitution vis–à–vis the Macau SAR

246

4.3 Autonomy and the Basic Law

248

5 (Still) The Macau SAR Autonomy: An Anonymous New Federalism?

253

5.1 Less than (Political) Regionalist Elements

255

5.2 Regionalist Elements of the SARs

255

5.3 Federal Elements of the SARs

255

5.4 Statehood Elements of the SARs

256

5.5 Uncategorized/Unique Elements

256

5.6 The Dynamics of the Macau Autonomy

257

6 An Autonomous and Self Contained Fundamental Rights System in a mere Autonomous Region Tailored in a Statehood Like Fashion

257

7 An Overview of the Macau Fundamental Rights Constitutional System: A Rich Catalogue with a Moderated Depth and Some Lacunae in the Protective Dimension

261

8 The Fundamental Rights Judicial Mechanisms of Protection: Two Assessments, within International Standards and with a Continuity Rupture and a Correlative Deficit

268

8.1 The Non Judicial Mechanisms

269

8.2 The Judicial Mechanisms

269

8.3 The Continuity

272

8.4 The Deficit

273

References

273

Public Prosecution vis à vis the Protection of the Legal System and the Protection of Fundamental Human Rights

279

Synopsis

279

1 Decision to Prosecute

279

2 Public Interest Criteria

280

3 The Basic Law-Entrenching Freedoms

281

4 Public Order Prosecutions

281

5 The Decision

282

6 Consent to Prosecutions

284

The United Kingdom Position

285

The Hong Kong Position

285

Consent as an Effective Human Rights Safeguard

286

7 Disclosure

287

8 Necessary Support for Prosecutors

288

9 Conclusion

288

References

289

International Criminal Procedure and the Protection of the Fundamental Rights of the Person

290

1 Introduction

290

2 The International Criminal Procedure in the Era of Institutionalization

293

2.1 Introduction

293

2.2 Compulsory Regulated Justice and the Emergence of the Criminal Tribunals and the International Criminal Procedure

296

3 International Criminal Proceedings in the Era of Human Rights

298

3.1 The International Criminal Proceedings of the International Military Tribunal (Tribunal of Nuremberg)

300

3.2 International Criminal Proceedings of Nuremberg or the Emergence of a Paradigm International Criminal Procedure Based on Principles

301

4 International Criminal Proceedings in the Era of Humanitarian Solidarity

307

4.1 Introduction

307

4.2 The Transformation of the International Criminal Procedural Law

308

5 Conclusion

319

References

319

Comments

322

Trend of Evolution of Chinese Mainland Prosecutorial System in the Context of Judicial Reform

326

1 The Prosecutorial System of the Mainland under the Contemporary Constitutional System

326

2 Trend of Reform of Prosecutorial System in Chinese Mainland

330

2.1 Perfect Legal Supervision over Litigation to Improve its Efficiency

330

2.2 Establish and Perfect the Integrated Mechanism of Performing Prosecutorial Power and the Mechanism of Managing Prosecutorial Work

332

2.3 Establish and Perfect the Management System of Prosecutors with Professional Construction as the Breakthrough

333

The Role of the Ombudsman in Defending Human Rights

336

1 The Importance of the Ombudsman in Defending Human Rights

336

2 Overview of Human Rights Protection in the People’s Republic of China

337

3 Overview of Human Rights Protection in Hong Kong S.A.R.

338

4 Macao’s Case: An Independent Ombudsman

339

5 Help and Consultation

340

6 Investigation

340

7 Real Cases

341

8 Research and Examination

342

9 Operational Research

343

10 Formulation of Guidelines

343

11 Conclusion

344

References

344

Domestic and International Judicial Protection of Fundamental Rights: A Latin American Comparative Perspective

345

1 Introduction

345

2 The Evolution of the Amparo Writ in Mexico up to the Late Nineteenth Century

346

3 The Widening of the Amparo Writ in Latin America

349

4 The Amparo Writ in Mexico at the Threshold of the Twenty-first Century

350

5 The Shortcomings of the Mexican Amparo: The Usefulness of the Comparative Legal Perspective

351

6 The Inter American System of Protecting Human Rights and the Amparo Writ in Latin America

354

7 Something About the International Responsibility of the State Provoked by the Judiciary Performance

360

8 Conclusion

361

References

362

Fundamental Rights and Constitutional Limits and Constraints to the Police Action in the Criminal Procedure: Several Aspects in Some Juslusophony Systems

364

1 Preliminaries

364

2 The Constitutional Framework for the OPC Acting in Criminal Procedure

366

3 The Police and Criminal Procedure

367

4 Observations and Conclusions

375

References

376

Comments Reciprocal Enforcement of Court Judgments in Civil and Commercial Matters Between Hong Kong SAR and the Mainland

379

1 The Arrangement on Reciprocal Enforcement of Court Judgments in Civil and Commercial Matters (2006)

379

2 Finality

380

3 Grounds for Refusing Enforcement

381

4 Implementation

382

5 The Arrangement on Mutual Service of Judicial Documents in Civil and Commercial Proceedings (1999)

382

6 The Arrangement on Mutual Enforcement of Arbitral Awards (1999)

383

Comment

385

Comments - Zhu Lin

386

Panel 3 Autonomy – A Comparative Approach: Purpose, Origins, International Foundations, Structures, Financial Aspects, Evolution

389

Evolution of Autonomy and Federalism

390

1 Sub-State Entities and the Law

391

2 Positive Potential of Autonomy and Federalism

392

3 Decentralization and Self-Determination

394

4 Self-Administration as a Remedy

396

5 Democracy and the Devolution of Powers

397

6 Sub-State Entities and Sovereignty

399

7 Shortcomings of Self-Government Regulations

402

8 Conclusion: Which Evolution?

405

References

406

Autonomy Experiences in Europe – A Comparative Approach: Portugal, Spain and Italy

409

1 A Brief Approach to the Concept of Autonomy

409

2 Autonomy and the Federal State

411

3 Spain, Portugal and Italy as Compound States

414

4 Elements of Comparison

419

5 And Does the European Union Have Anything to Say?

433

6 Macao’s Autonomy: Elements for Comparison with the Sub-State Entities of the European States

435

References

439

French Overseas: New Caledonia and French Polynesia in the Framework of Asymmetrical Federalism and Shared Sovereignty

442

1 French Polynesia and New-Caledonia in Context

444

2 The Institutional Setting of New-Caledonia and French Polynesia

448

3 Policy-Making Competencies in New-Caledonia and French Polynesia

452

4 The Relationship of New-Caledonia and French Polynesia with the European Union

454

References

458

The Development of Asymmetric Regionalism and the Principle of Autonomy in the New Constitutional Systems: A Comparative Approach

460

1 From the Federalizing Process to Multilevel Constitutionalism

460

2 Recognizing the Autonomy of Territorial Communities: The Main Characteristics of the Concept of Autonomy

462

3 The Most Important Organizational Expressions of the Principle of Autonomy: From Homogenous Regionalism to Asymmetric Regionalism

465

4 The Drive Towards Differentiation and the Search for Unitary Principles

469

5 Some Suggestions About Macau’s Autonomy

471

References

476

Comments Chris Himsworth

481

1 Defining Our Topic

481

2 Justifications for Autonomy

482

3 The Essential Conditions for Sustaining Autonomy

482

Decentralization and Structural Policies: The European Experience

483

1 Introduction

483

2 The First EU Worries with Regional Disequilibria

484

3 The Reasons Behind Regional Policy

486

4 The Most Important Steps Taken Up To Now

487

5 The Criteria and the Means of Support

488

6 The Results of the Policy Implemented

489

7 The Future of EU Regional Policy

490

References

491

Legal Foundations, Structures and Institutions of Autonomy in Comparative Law

492

1 Introduction

492

2 Participation and Self-Determination

492

3 Distinction Between Spatial and Normative Dimensions

497

4 Combination of the Normative Dimension and the Level of Entrenchment Concerning Territorial Autonomy in Europe

500

5 Different Forms of Entrenchment

511

6 Concluding Remarks

512

References

515

Comments Autonomy as an Enduring Concept

517

Panel 4 Autonomy Within the P.R. of China - S.A.R.s et alii; Purpose, Origins, Structures and Evolution

521

The Relationship Between Central and Local Governments Under the Unitary State System of China

522

1 Formation of the Relationship Between the Central and the Local Governments

522

2 Diversification of the Relationship Between the Central and the Local Governments Under the Unitary State System

524

3 Problems with the Relationship Between the Central and Local Governments Under the Unitary State System

532

4 Approaches to the Adjustment of the Relationship Between the Central and the Local Governments

534

Autonomous Legislative Power in Regional Ethnic Autonomy of the People’s Republic of China: The Law and the Reality

536

1 Introduction

536

2 Autonomous Legislative Power in REA

538

4 Conclusion

556

Reference

557

Macao SAR Inter-Regional Mutual Legal Assistance in Criminal Matters1

559

1 Introduction

559

2 Legal Framework

560

3 Possible Models

564

4 The Inter-Regional MLA Arrangements in the Hierarchy of the Sources of Law in Macao

567

5 Current Arrangements and Pending Negotiations

569

6 Main Sensitive Issues on Inter-Regional MLA Between Macao and Mainland China

570

Comments Local Autonomy in the Context of Chinese Political Modernization

576

1 Concept of Local Autonomy

576

2 China’s Peculiarities

576

3 Local Autonomy’s Diversity in China

578

4 Control of Local Autonomy by the Central Government

581

5 Assessment and Conclusions

582

References

583

Panel 5 Fundamental Rights and Interaction of the Legal Systems

584

The Ranking of the International Law in the Framework of “The Basic Law of the Macao SAR of the People’s Republic of China” and the Introspection on the Perplexities of Fundamental Rights

585

1 From “International Law” to “Regional Law”

585

2 Practice of International Law Stretched to Macao Without Participation in the Negotiation

589

3 The Absorption of International Laws to National Laws

594

4 A Few Questions on the Fundamental Rights

596

The Validity of the International Agreements of the Human Rights in the Juridical Order of the Special Administrative Region of Macau

599

References

621

Interpretation of the Basic Law by the Courts of the Macao SAR

622

1 Introduction

622

2 Constitutional Interpretation

623

3 Three Main Criteria

627

4 The Basic Law’s Foundational Political Context

628

5 The Content of the Basic Law

630

6 The Relevant Criterion of Belonging

636

7 Article 143 of the Basic Law and the Standing Committee

637

8 Some Final Remarks

643

References

644

The General Regime of Fundamental Rights in the Basic Law and in the International Instruments

646

1 Delimitation of the Subject

646

2 Democratic and Liberal Conception of Fundamental Rights

648

3 International Covenant on Civil and Political Rights (ICCPR)

649

4 Charter of Fundamental Rights of the European Union (CFREU)

651

5 Basic Law of Macau Special Administrative Region (BLM)

654

References

667

Comments - Paulo Martins Chan

669

Fundamental Rights and the Basic Laws of the Hong Kong and Macau Special Administrative Regions

671

1 Introduction

671

2 Overview of the Systems of Protection in Hong Kong and Macau

672

3 Rights Provided for Within the Basic Laws

673

4 Extrinsic Law and Principles of the Basic Laws

675

5 Conclusion

683

References

683

The Fundamental Rights in Macao

684

1 Introduction

684

2 The Sources of the Fundamental Rights

689

3 The General Meaning of the Fundamental Rights

695

4 The Fundamental Rights Regime

699

References

703

Constitutionalism and Western Legal Traditions in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems

704

1 Constitutionalism and Western Legal Traditions in Human Rights: A Global but Diversified Influence

706

2 The Pendulum Between Universalism and Particularism

710

3 Convergences in Asia

712

4 Conclusion: Are Democracy and Human Rights the End of History?

718

References

719

Comments Macau’s Autonomy: Looking for a Fresh Awakening?

721

1 Macau as a Chinese Subject

722

2 The Need for a Democratic Awakening

725

3 The Road Ahead

727

References

728

Comments Fundamental Rights and the Basic Laws of Hong Kong and Macau Special Administrative Regions

729

The Autonomy of the Macau Special Administrative Region

733

1 Context and Basic Idea

733

2 Centripetalism

734

4 Governance in the Context of the Special Administrative Region

736

References

738

The Theory, Constitution and Practice of Autonomy: The Case of Hong Kong

739

1 Autonomy: General Considerations

739

2 The Theory, Constitution and Practice of “One Country, Two Systems”

743

3 Governance and Democracy in Hong Kong as a Test for Hong Kong’s Autonomy

751

4 Conclusion

753

References

754

Interaction and Integration Between the Legal Systems of Hong Kong, Macao and Mainland China 50 Years After Their Return to China

756

1 Introduction

756

2 Meaning of the “Remaining Unchanged for 50 Years” Rule

757

3 Hong Kong SAR and Macao SAR Will Remain Separate Law Districts

758

4 Establishment of an Interregional Mechanism of Legal Consultation, Coordination and Cooperation

759

5 Conclusion

761

References

762

The Special Administrative Regions of the PRC in Comparison with Autonomous Regions Models

763

1 Introduction

763

2 The Special Administrative Regions of Hong Kong and Macao and the Models of Territorial Distribution of Powers

764

3 Some Remarks on the More Interesting Aspects of the Autonomy of the Chinese SARs

766

4. The Asymmetrical Position of the SARs as a Key to Explain Their Form of Autonomy

780

Comments - Markku Suksi

785

Comments - Paulo Cardinal

789

Conference Final Comments

793

Closing Ceremony

795

Closing Speech by the President of Court of Final Appeal

796

International Conference

799