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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
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