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

Preface

Contents

Contributors

Opening Ceremony

Welcome Address by the Secretary for Administration and Justice

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

Address by the Project Director

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

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

1 The Argument

2 The Context of the Common Law

3 The Common Law in the Basic Law

4 The Interface Between Chinese and Hong Kong Legal Systems

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

5.1 Constitutional Jurisdiction of Hong Kong Courts

5.2 The Approach of the Hong Kong Courts to Interpretation

5.3 Jurisdiction of the NPCSC

5.4 The Approach of the NPCSC to Interpretation

5.5 Comments on Methods of Interpretation

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

References

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

1 Introduction

1.1 As to Why This Topic was Chosen

1.2 As to the Term Law of Things

1.3 Method and Sequence

1.4 Reserves

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

2.1 The Basic Structure of the Macau Civil Code

2.2 The Possible Legal Tradition Hidden Behind This Structure

3 The Formation of a Tradition of Ownership

4 A Disruption of the Ownership Tradition

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

6 The Convergence of Ownership Tradition with the Aristotelian Tradition

7 The Extension of the Ownership Tradition from Portugal to Macau

8 The Possibility of Continuation of the Tradition of Ownership

References

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

1 Introduction

2 Why Legal Transplants?

3 Legal Transplants and Economic Development

4 A First Conclusion

References

Modernisation, Westernisation, and Globalisation: Legal Transplant in China

1 Introduction

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

2.1 Constitutional and Political Reform at Gunpoint

2.2 The Beginning of Westernisation of Chinese Law

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

3 A Balancing Act Between Westernisation and Modernisation

3.1 The Establishment of a Continental Civil Law System in China

3.2 Between Westernisation and Modernisation

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

4.1 The Short-Lived Triumph of the Soviet Model

4.2 Mixed Influences Under Utilitarian and Instrumentalist Guidelines

5 Globalisation and ‘Rational’ Law

5.1 ‘Rational’ Law and Bold Legal Transplant

5.2 From Western Law to International Law

6 Concluding Remarks – The Search for Chinese Law Continues

References

Comments Globalization and the Politics of Comparative Law

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

Scotland: The Constitutional Protection of a Mixed Legal System

1 Introducton

2 The Scottish Devolution Settlement in Outline

3 The Mixed Legal System of Scotland

4 Devolution and the Other (New Labour) Constitutional Reforms

5 Conclusions

References

The South-Tyrol Autonomy in Italy

Preface

1 The International Foundation of Autonomy

1.1 Historical and Political Background

1.2 The International Agreement and First Regional Statute

1.3 Specific Treaty Arrangements

2 The Local Foundations of Autonomy

2.1 The Purposes of Autonomy

2.2 Constitutional Provisions for Autonomy

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

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

2.5 Interpretation and Implementation of Constitutional/Legal Provisions for Autonomy

3 The Institutions of Autonomy

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

3.2 The Relations Between Institutions at the National and Autonomous Levels

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

4 The Methods of Autonomy

4.1 Methods of Cooperation and Consultations Between Different Levels of Government

4.2 Methods of Dispute Resolutions

4.3 Notions of State or Parliamentary Sovereignty

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

4.5 Differing Legal Traditions Between the State and the Autonomous Region

5 Conclusion: Autonomy for Peace

References

The Europeanization of Law

1 Introduction

2 Europeanization of Law: Brief Analysis

2.1 First Perspective: Direct Legal Integration

2.2 Second Perspective: Indirect Legal Integration

2.3 Third Perspective: Beyond EU Boundaries

3 Concluding Remarks

References

The Notion of Reparations as a Restorative Justice Measure

1 Introduction

2 International Law

3 Reparation Justice Theories

3.1 Corrective Justice

3.2 Distributive Justice

3.3 Restorative Justice

4 Some International Examples of Reparations

4.1 Australia

4.2 Canada

4.3 Ireland

4.4 Japanese War Crimes (Particularly Sex Slaves)

5 Conclusion

References

Comments - Jorge Godinho

Comments - Zhenmin Wang

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

Lawyers, the Protection of Human Rights and Harmonious Society

1 The Protection of Human Rights and a Harmonious Society

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

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

2 Lawyers and the Protection of Human Rights

3 Lawyers and the Structuring of a Harmonious Society

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

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

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

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

3.1 The Transition Process

3.2 The Continuity Principle

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

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

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

4.3 Autonomy and the Basic Law

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

5.1 Less than (Political) Regionalist Elements

5.2 Regionalist Elements of the SARs

5.3 Federal Elements of the SARs

5.4 Statehood Elements of the SARs

5.5 Uncategorized/Unique Elements

5.6 The Dynamics of the Macau Autonomy

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

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

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

8.1 The Non Judicial Mechanisms

8.2 The Judicial Mechanisms

8.3 The Continuity

8.4 The Deficit

References

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

Synopsis

1 Decision to Prosecute

2 Public Interest Criteria

3 The Basic Law-Entrenching Freedoms

4 Public Order Prosecutions

5 The Decision

6 Consent to Prosecutions

The United Kingdom Position

The Hong Kong Position

Consent as an Effective Human Rights Safeguard

7 Disclosure

8 Necessary Support for Prosecutors

9 Conclusion

References

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

1 Introduction

2 The International Criminal Procedure in the Era of Institutionalization

2.1 Introduction

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

3 International Criminal Proceedings in the Era of Human Rights

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

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

4 International Criminal Proceedings in the Era of Humanitarian Solidarity

4.1 Introduction

4.2 The Transformation of the International Criminal Procedural Law

5 Conclusion

References

Comments

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

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

2 Trend of Reform of Prosecutorial System in Chinese Mainland

2.1 Perfect Legal Supervision over Litigation to Improve its Efficiency

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

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

The Role of the Ombudsman in Defending Human Rights

1 The Importance of the Ombudsman in Defending Human Rights

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

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

4 Macao’s Case: An Independent Ombudsman

5 Help and Consultation

6 Investigation

7 Real Cases

8 Research and Examination

9 Operational Research

10 Formulation of Guidelines

11 Conclusion

References

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

1 Introduction

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

3 The Widening of the Amparo Writ in Latin America

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

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

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

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

8 Conclusion

References

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

1 Preliminaries

2 The Constitutional Framework for the OPC Acting in Criminal Procedure

3 The Police and Criminal Procedure

4 Observations and Conclusions

References

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

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

2 Finality

3 Grounds for Refusing Enforcement

4 Implementation

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

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

Comment

Comments - Zhu Lin

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

Evolution of Autonomy and Federalism

1 Sub-State Entities and the Law

2 Positive Potential of Autonomy and Federalism

3 Decentralization and Self-Determination

4 Self-Administration as a Remedy

5 Democracy and the Devolution of Powers

6 Sub-State Entities and Sovereignty

7 Shortcomings of Self-Government Regulations

8 Conclusion: Which Evolution?

References

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

1 A Brief Approach to the Concept of Autonomy

2 Autonomy and the Federal State

3 Spain, Portugal and Italy as Compound States

4 Elements of Comparison

5 And Does the European Union Have Anything to Say?

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

References

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

1 French Polynesia and New-Caledonia in Context

2 The Institutional Setting of New-Caledonia and French Polynesia

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

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

References

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

1 From the Federalizing Process to Multilevel Constitutionalism

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

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

4 The Drive Towards Differentiation and the Search for Unitary Principles

5 Some Suggestions About Macau’s Autonomy

References

Comments Chris Himsworth

1 Defining Our Topic

2 Justifications for Autonomy

3 The Essential Conditions for Sustaining Autonomy

Decentralization and Structural Policies: The European Experience

1 Introduction

2 The First EU Worries with Regional Disequilibria

3 The Reasons Behind Regional Policy

4 The Most Important Steps Taken Up To Now

5 The Criteria and the Means of Support

6 The Results of the Policy Implemented

7 The Future of EU Regional Policy

References

Legal Foundations, Structures and Institutions of Autonomy in Comparative Law

1 Introduction

2 Participation and Self-Determination

3 Distinction Between Spatial and Normative Dimensions

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

5 Different Forms of Entrenchment

6 Concluding Remarks

References

Comments Autonomy as an Enduring Concept

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

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

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

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

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

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

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

1 Introduction

2 Autonomous Legislative Power in REA

4 Conclusion

Reference

Macao SAR Inter-Regional Mutual Legal Assistance in Criminal Matters1

1 Introduction

2 Legal Framework

3 Possible Models

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

5 Current Arrangements and Pending Negotiations

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

Comments Local Autonomy in the Context of Chinese Political Modernization

1 Concept of Local Autonomy

2 China’s Peculiarities

3 Local Autonomy’s Diversity in China

4 Control of Local Autonomy by the Central Government

5 Assessment and Conclusions

References

Panel 5 Fundamental Rights and Interaction of the Legal Systems

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

1 From “International Law” to “Regional Law”

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

3 The Absorption of International Laws to National Laws

4 A Few Questions on the Fundamental Rights

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

References

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

1 Introduction

2 Constitutional Interpretation

3 Three Main Criteria

4 The Basic Law’s Foundational Political Context

5 The Content of the Basic Law

6 The Relevant Criterion of Belonging

7 Article 143 of the Basic Law and the Standing Committee

8 Some Final Remarks

References

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

1 Delimitation of the Subject

2 Democratic and Liberal Conception of Fundamental Rights

3 International Covenant on Civil and Political Rights (ICCPR)

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

5 Basic Law of Macau Special Administrative Region (BLM)

References

Comments - Paulo Martins Chan

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

1 Introduction

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

3 Rights Provided for Within the Basic Laws

4 Extrinsic Law and Principles of the Basic Laws

5 Conclusion

References

The Fundamental Rights in Macao

1 Introduction

2 The Sources of the Fundamental Rights

3 The General Meaning of the Fundamental Rights

4 The Fundamental Rights Regime

References

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

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

2 The Pendulum Between Universalism and Particularism

3 Convergences in Asia

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

References

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

1 Macau as a Chinese Subject

2 The Need for a Democratic Awakening

3 The Road Ahead

References

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

The Autonomy of the Macau Special Administrative Region

1 Context and Basic Idea

2 Centripetalism

4 Governance in the Context of the Special Administrative Region

References

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

1 Autonomy: General Considerations

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

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

4 Conclusion

References

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

1 Introduction

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

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

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

5 Conclusion

References

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

1 Introduction

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

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

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

Comments - Markku Suksi

Comments - Paulo Cardinal

Conference Final Comments

Closing Ceremony

Closing Speech by the President of Court of Final Appeal

International Conference