Analysis | The defence of the Basic Law and the principle ‘One country, Two systems’ is a duty of all

As stated in several of its provisions, it is a duty of all holders of political power to respect, uphold and defend the Basic Law of the MSAR from the very moment of taking office. Article 101 strongly determines as a duty of “the Chief Executive, principal officials, members of the Executive Council and of the Legislative Assembly, judges and procurators (…) [that they] must uphold the Basic Law (…)”; in paragraph (2) of Article 50 it also prescribes the duty of the Chief Executive to “be responsible for the implementation” of the Basic Law; in paragraph (1) of Article 71, it determines the duty of the Members of the Legislative Assembly “to enact, amend, suspend or repeal laws in accordance with the provisions” of the Basic Law.

Also, complementary legislation of the “mini-constitution” of the MSAR prescribes the duty of the Members of the Legislative Assembly to “strictly observe and uphold the Basic Law,” as results from paragraph (4) of Article 38 of the Regime of the Legislature and the Statutes of Members of the Legislative Assembly (Law 3/2000); and, finally, the validity of the laws, independent administrative regulations, and of supplementary administrative regulations and other normative acts of the MSAR, depends on its “conformity with the Basic Law,” as per paragraph 1 of Article 3 of Law 13/2009.

The Central Authorities of the People’s Republic of China (PRC), starting with its President, have also repeatedly and consistently affirmed the need to promote and defend the Basic Law, whether at the solemn meetings of the NPC, or when the leaders of the MSAR visit Beijing to render accounts of achievements and work under development, or at other less solemn occasions.

Thus, for example, following “The full implementation of the spirit of the “Two Sessions”: New journey of the development of Macao,” the director of the Liaison Office of the Central People’s Government in the MSAR, Zheng Xiaosong, introduced four aspirations in the sessions, highlighting the following two: the full implementation of the principle of “one country, two systems” and the strict observance of the Constitution and the Basic Law of Macao” (Source: GCS, 2018-03-26).

Subsequently, the principal officials and the General Prosecutor of the MSAR were summoned to Beijing in April this year to undertake the necessary training. At the meeting which Han Zheng, member of the Standing Committee of the Politburo of the Communist Party of China and vice-prime minister, had with the trainees, he said he “hopes the government team of the MSAR will bring into daily life the spirit referred in the instructions of the Secretary-General, Xi Jinping, about the role of Macao, and the implementation of the principle of “one country, two systems” and the Basic Law in the staunch defence of the sovereignty, security and interests of the development of the Country.” For the vice-prime minister, “the government team in charge must always defend the population and work for their benefit.”

In order to strengthen the Government’s capacity to manage and promote the development of Macau, of the four requirements, Secretary Sonia Chan highlighted the following two when speaking to the media: the first, with the meaning that “the directors shall implement, in full, the Basic Law and the principle of “one country, two systems”; the second, referring to the “need to defend the unity and sovereignty of the Country, as well as the interests of national development and security” (GCS, 2018-04-24, Source: Office of the Government spokesman Han Zheng). We see, therefore, special relevance has been given to the full and strict compliance with, and defence of, the Basic Law, both by the National People’s Congress, the Central Authorities, and by the government team of the MSAR (at least in their declarations).

If, however, we take a look at the political activity and legislative action taken, whether by the Secretaries of the Executive, or by the Members of the Legislative Assembly (and of the house), it can be quickly discerned that instead of the “strict observance of the Constitution and the Basic Law of Macao” (Zheng Xiaosong), or the implementation of the principle of “one country, two systems” and the Basic Law (Han Zheng), that instead of the leaders perform[ing], fully, the Basic Law and the principle of “one country, two systems (Sonia Chan), and instead of “defend[ing] the Basic Law,” to which all have sworn at the time of taking up their roles, this has not always occurred. This is because the Secretaries have not been known to adequately transmit the training the leaders have received to their respective public services, or because the Secretaries themselves have not internalized the importance of non-violation of the Basic Law.

As an example you can point to the principle of equality (from the negative angle, the prohibition on discrimination), as set out in Article 25 of the Basic Law: the attempt to force non-resident workers to pay more for public transport than residents, or that non-resident women pay disproportionately more for the costs of child-birth, or, more recently, that homosexual students should be subject to exceptional and corrective measures serve as reminders of this principle.

This violation of the Basic Law has not only been at the hands of the Secretaries and of their public departments, but also by our very own Members of the Legislative Assembly, as per Article 37 (paragraph 2) of the Law 15/2009 regarding retroactivity of indexed valuations as at 1 July 2007, and with the Law on Prevention and Combating Domestic Violence, in such a way that led to the always insightful Pereira Coutinho to observe in June 2016, that Article 25 of the Basic Law is precisely the one that is most violated: “This article is constantly being violated.”

What should also be mentioned, referred to earlier, is the draft resolution, which was tabled by the Members who intended to replace the law and wanted to interfere with the competences of the courts, all of which had been established by law and in the exercise of the legal profession. In addition, finally, by the conjunction of Article 105 of the Rules of Procedure of the Legislative Assembly with paragraph (a) of Article 107, we see the violation of the provisions in the final part of Article 75 of the Basic Law, which relates to the presentation by the Members of proposals for amendments to bills pertaining to Government Policy.

On the other hand, if we look at the events in Hong Kong which have challenged the unity, the sovereignty and security of the people’s Republic of China, we find that it is, above all, from within society that radical sectors and separatists have emerged to lodge the strongest attacks on the Basic Law of the HKSAR and the principle ‘one country, two systems’.

In Macau, the residents, lovers of the Motherland and the MSAR, conversely – and it is unanimously recognized as such – have not only not expressed any sympathy and agreement with these attacks, equally clearly and unequivocally, they have disapproved and rejected them. And, we are, nevertheless, “somewhat victims of a situation that is not ours”, “we are paying the price of that irreverence,” as President of the Foundation Rui Cunha recently commented, in reference to “Occupy Central.”

If the attacks to the Basic Law, in Hong Kong, come, especially, from certain sectors, minority interests and extremists in society, the danger of attacks to the Basic Law in the MSAR come mostly and surreptitiously from the Executive and even the Legislature, which should be the first organs of political leadership in the region to worry about their defence, their respect and strict compliance.

The announcement of the non-renewal of the contracts of lawyers Paulo Taipa and Paulo Cardinal, as advisors to the Legislative Assembly is of extreme concern to the residents of Macau, in particular, to the Portuguese community and, within this, to the legal community. As a result of this de facto “dismissal,” the Legislative Assembly has lost two legal experts, who are unanimously considered to be highly qualified and with extensive technical-legal experience. They have thoroughly scrutinized, together with the rest of the advisors under their direction, the violations to the Basic Law, as well as the rigorous use of the categories of the various branches of the Law and the design of the systematic construction of the provisions of law. They served, also, as an interface with the lawyers of the Executive in the pursuit of the best legal solutions for the residents of Macau, which greatly facilitated the work of the lawmakers and judges who are now called upon to be the ultimate guardians of the Basic Law.

Such legal advice, given all the meritorious descriptions, helped to compensate for the lack in (legal) training of almost all of the  Members of Legislative Assembly, without compromising the last word on policy, which always lies with the legislators. It is certain that Macau society has now gained two voices that certainly will continue to scrutinise future violations, but without the restraint and the moderation that their roles had heretofore imposed. The Legislative Assembly has, however, lost them, with manifest damage to the proper conduct of its legislative work and, thus, it is the MSAR that is made poorer.

The President of the Legislative Assembly has been touted as one of the three candidates for the Chief Executive and he has not denied this intention. Being imputed with the liability for the termination of the contracts of those advisors (refer to the request for clarification from members Pereira Coutinho, Ng Kuok Cheong and Sulu Sou on the non-renewal), his message to the community is likely to be the subject of several interpretations, all of them with negative impact upon his image: first as “political sanitation” (as already characterized by some commentators) and/or as a planned exchange of Portuguese lawyers (with exceptional qualifications and experience) for Chinese ones (young and still far from meeting the requirements) or, even for Portuguese lawyers without the necessary and in-
depth knowledge of the realities of the MSAR. In any case, it results in an incomprehensible devaluation of the importance and the necessity for strict compliance with of the Basic Law. Or, as implicated, although not yet publicly, the withdrawal of his candidacy.

Indeed, to dispense of the best and most experienced legal consultants, who could guide him (as well as other legislators and Chairmen of the Committees) on the strict compliance with the Basic Law, the President of the Legislative Assembly is going in a direction counter to that of the other candidates for the role of the Chief Executive, who have sought to surround themselves with legal advisors with technical capacity and the professional experience to enable them to perform their job well and display an irreproachable record of accomplishments: resolution of the problems of the residents of Macau, without violations of the Basic Law, or, at least, with the least possible violations. On the other hand, no longer intending to apply for the position, the act in question can be understood as part of his declaration to withdraw his candidature.

In any case, it is unfortunate that such interpretations are politically possible, because Ho Iat Seng would undeniably be a good candidate for Chief Executive. On the other hand, perhaps the Central Authorities, one day, will summon, too, all the Members of the Legislative Assembly, to receive training in Beijing on the Basic Law and the imperative for its defence, as were the principal officials and the General Prosecutor. If that would happen, the MSAR will benefit, because the Basic Law and the principle of “one country, two systems” must be defended by all: by its residents and by all its political and public officials. João Albuquerque Lawyer

Translated from the Portuguese original by MDT/KTranz

This article was also published in Portuguese and Chinese by Plataforma weekly.