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