Analysis | The failed Land Law

“Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”
 Henry David Thoreau, American philosopher

In the early 90s, numerous  land concessions were granted to private entrepreneurs for industrial and residential development. Many of those lands were developed, but a significant number were not and for very different reasons.
In 2010, the Government conducted an in-depth investigation into 113 undeveloped lands to determine whether the lack of development could be imputed to the land owners. After hearing from all parties and the Land Commission, the Government concluded that for 65 of the lands (to which 16 were later added) the “causes for non-development were not imputable” to their respective owners. In several cases, the non-development was caused exclusively by inactions or delays on the part of successive governments.
One of the most extreme examples – and one with which I am professionally involved – may be the lands located in the Seac Pai Van area of Coloane. The majority of the land concessions in this area were granted for industrial purposes. As early as 1993, the Government informed all land owners that it would develop Coloane as a residential area and would cease industrial development, to which all land owners agreed. However, this came with one caveat: the land owners would need to wait for the urban plan for the area to get their projects approved and ultimately, their lands developed.
To make a long story short, after two decades, while an Urban Planning Law was finally enacted in 2013, there is still no sign of an urban plan. With all concessions expired, the Government is basically saying, “Tough luck, under the new Land Law, it is time to return the lands back.” For 25 years, land owners were saddled with lands that they were prevented from developing due to Government inaction, all while paying rental and premiums for the questionable ‘privilege’ of holding idle land. Throughout the years, land owners were led to believe by successive Governments that urban plans would be approved, and there is vast documentation to prove it. Their hopes and trust in the Macau Special Administrative Region (MSAR) were misplaced.

Changing the rules midgame
The new Land Law was enacted in 2013, and while applying to all land concessions – including those granted prior to its enactment – it failed to address situations of undeveloped concessions that were soon to expire. Article 48 goes as far as directly prohibiting the renewal of undeveloped concessions, regardless of who or what caused the non-development. The now infamous provision was widely discussed during the legislative committee meetings, with a number of legislators fiercely opposed to treating all cases equally, especially when the Government acknowledged that the non-development of certain lands was its responsibility.
After talking with several legislators and colleagues from the legal industry, it seems all were under the impression that the Government would find an administrative solution within the existing Land Law, which would allow the non-culpable land owners to develop their land and avoid the injustice of a ‘blind’ enforcement of Article 48.
To the surprise of all stakeholders, the Government announced late last year that the Land Law gave the Government no alternative but to move forward with the declaration of expiry of the 113 undeveloped land concessions – regardless of who was responsible for its non-development. Yes, this included the 65, meaning that the Government is now proposing to treat the ‘guilty’ and the ‘innocent’ equally. Confiscation and expropriation were words extensively used during the days after this announcement, and rightly so.

What now?  
All stakeholders have publicly spoken against the injustice of this situation and the need to solve it. During the Policy Address debate at the Legislative Assembly in December last year, nearly all legislators criticized the law and the Government’s hard-line stance on the matter. Financial experts have expressed fears over the economic impact of foreign entrepreneurs becoming reluctant to invest in a Region whose Government does nothing to correct injustices, especially when it has the powers and the duty to do so.
This is a key point: the Government has the duty under the Basic Law and Administrative Law to protect the interests of its citizens and private property and, in its actions, to proceed under certain principles which are the basic foundations of our legal and political system, such as the principles of justice, equality and good faith.
Therefore, the Government and the Legislative Assembly have the legal duty to come together and amend the Land Law, allowing non-culpable land owners to exercise their right to develop the land concessions that the Government did not allow them to – following, for example, the mechanism of Article 104(5) of the Land Law, which allows the suspension or extension of the development term when the non-development was not ‘imputable’ to the concessionaire.
Actually, an amendment or interpretative law in this direction would simply reflect the true intention of the Legislators and the Government – expressed publicly by the Chief Executive on April 22, 2016 – which was always to allow non-culpable land owners to exercise their rights under their concessions. In fact, the concept of ‘culpability’ – part of the underlying spirit of our Civil Law system – is mentioned throughout the Land Law; in which suspensions of terms, renewals and extensions are granted to land owners when they are not ‘culpable,’ and the causes for the non-compliances and delays are not ‘imputable’ to them (e.g., inter alia, articles 51, 66, 104 and 215 of the Land Law).
By refusing to politically support and promote an amendment of the Land Law (or an interpretative law) and simply advising land owners to go to court, the Government is in fact refusing to  exercise their basic duties, which are to rule and govern. In reality, the Government is now transferring the burden of correcting its mistakes to the Judiciary, with serious implications for the Region in terms of time, cost and political credibility.
Courts do not exist to correct injustices created by the law, but to interpret the law and settle disputes between parties. A law does not have a minimum period of existence, and it is no shame to change it three years later. It is certainly worse to recognize an injustice and not correct it when one has the power to do so.  Laws exist to be fair and just, and must be changeable and adaptable according to social and economic developments. Above all, a law must be amended if found contrary to the Basic Law and to the principles of conduct of Government, or if it is socially incorrect, unjust, unfair and prejudicial to the economy and the global reputation of the MSAR. Gonçalo Mendes da Maia Lawyer, MdME

Editor’s Note: Mr Mendes da Maia is a partner of MdME, a law firm representing clients concerning this issue, which accords him a considerable amount of knowledge on the matter. The opinions expressed within this article are solely the personal opinions of the writer.