In order to have a better understanding of the Territory's institutional framework it would be advantageous to provide a comprehensive and thorough view on some of the subjects related to it. Therefore, we will focus once again on the Legislative Assembly.
Our attention will be drawn to legislative powers, legislative procedures as well as the structure and operation of the Legislative Assembly's technical and administrative support services.
Later, in the following article, it would be of interest to deepen our study into other subjects like the Legislative Assembly's history and an analysis on the most important laws approved by this body.
Legislative Assembly's legislative limits
Although it plays a somewhat important role in the approval of constitutional bills regarding Macau since it holds exclusive powers to deal with the Macau Organic Statute, the Legislative Assembly's legislative powers are limited to statutory laws.
In addition, the Legislative Assembly's powers are also subject to the following two limits concerning the subjects covered by the said statutory laws (1):
1 - They must be of the Territory's exclusive interest; and
2 - They must not be exclusive of the Parliament nor the Government of Portugal.
An exact definition of these two limits is quite difficult to provide. To start with we should find a meaning for exclusive interest. Regarding the same matter (limits of the Azores and Madeira's legislative powers), article 229 of the Portuguese Constitutions makes use of the following expression: specific interest. It is thought that in this case exclusive and specific bear the same meaning, i. e., an interest in which the national bodies(2)are not directly involved.
Neither the Constitution nor the Law state the meaning of exclusive interest or specific interest. However, the Azores Statute gives the following account of specific interests for the region:
- Demographic policy and residenceship statute;
- Supervision and power over local governments, their territorial division and definition of powers of their respective bodies;
- Supervision, management, coordination and surveillance of public services and institutions as well as nationalized or government companies which operate only in the Azores;
- Means of transportation (land, sea, air), between the islands, their timetable and fares;
- Management of ports and airports, including taxes and charges;
- Agriculture, forestation, cattle raising and fishing;
- Juridical system and land usage, including rural letting;
- Soil policy, organization of the territory, ecological balance and hydric, mineral and thermal resources;
- Locally produced energy;
- Health and social welfare;
- Labour, employment and training;
- Education system covering preschool, primary school, intermediate school and university;
- Protection of the cultural heritage as well as museums, libraries and archives;
- Public shows and entertainment;
- Sports;
- Tourism and hotel industry;
- Handicraft and folklore;
- Expropriation of property owned in the Region based on public utility reasons, and civil requisition (when on strike government may force strikers to go back to work under this 'civil requisition' provision);
- Public works, social housing and urban policy;
- Foreign and domestic trade and supplies;
- Supervision and control of exports and imports;
- Foreign investment and exchange of technology;
- Mobilization of all savings originated in the Region so as to finance investments made therein;
- Distribution and control of credit amounts;
- Use of remittances of immigrants' savings;
- Control and management of foreign exchange in the Region;
- Industrial development;
- Updating the tax system in the light of economic conditions in the Region and granting tax benefits;
Maintaining public order.
The above description of the Azores' regional legislative powers leads us to arrive at the conclusion that not very often can we or should we draw a line between the exclusive interest and specific interest. In the case of the Macau legal system the same conclusion should be based on the exclusive interest concept. For the purposes of interpretation and application of the Macau Organic Statute is therefore necessary to build up an exclusive interest doctrine because the legislative powers assigned to the Territory's government bodies are much wider than those in Madeira and Azores.
It is also important to note that defining the exclusive interest should not be done at random, i. e., should not depend on any momentary circumstance, be it political, economical, personal or any other. Quite the contrary, when defining and assessing it, legislators must make use of objective criteria and pre-set limits.
Exclusive interest matters are those which concern only the Territory while a corporate body. In addition, Portugal's government bodies should not have any direct interest in the said matters either, even though there might be indirect and remote interests because decisions taken in Macau may influence the political trend of those bodies which in any way might be related to Macau.
The subject of exclusive interest could be approached differently. Thus it can be said that all matters arising from the Republic constitutional laws which are not basically of national interest nor assumed by the national government bodies, are of exclusive interest to the Territory.
As regards the limits arising from the specific powers of the national government bodies, attention should be drawn to Articles 167 and of the Portuguese Constitution. While the former sets out the matters which are under the exclusive powers of the Parliament, the latter describes those issues which can be assigned to the Government upon approval by the Parliament, being the exclusive power of the latter notwithstanding.
The Legislative Assembly's specific powers must be 'deducted' from the above articles of the Portuguese Constitution and only then we will be able to know which business the Legislative Assembly is not allowed to transact. That is the case of gaining and/or losing Portuguese citizenship, status and capacity of people, organization and powers of Courts and Department of Justice and Judges, among others.
Legislative Powers after 1999
What will be the limits to the legislative powers in the Special Administrative Region of Macau after 20th of December, 1999?
Based on our knowledge of the existing Joint-Declaration and the development of the drafting of Hong Kong's Basic Law, we believe that the following will be the regional legislative powers:
1 - Territorial integrity of the PR China;
2 - Political unity of the PR China;
3 - Compliance with those constitutional principles of the PR China which are expressly related to Macau;
4 - Respect for the major principles of the Macau legal system;
5 - Record of laws passed by the People's National Assembly.
Regional legislative powers under nos. 2 and 4 might create some practical problems because the concept of political unity (3) can be narrower or wider and this is likely to affect the understanding of the set of rights, liberties and guarantees. Therefore if such a limit is to be included in the Basic Law it should be done in a precise manner in order to assure that the 'one-country-two-systems' policy is not disregarded due to momentary and personal interpretations. Otherwise the confidence that Macau residents have in the system and the institutional stability might be lost. Again, if that is to be included in the Basic Law, its scope should be set out objectively.
Let us imagine that both the freedom of expression and religious freedom were either suppressed or cut off because they were thought to jeopardize the political unity of the PRC. In this case several legal principles would be broken and international agreements subscribed by the Chinese Government would be violated.
As regards the major principles of the Macau legal system it is also important to set out their contents and this is not going to be an easy task if a thorough description is to be made.
Those legal principles are the basis of the current legal system and are the core of the solutions adopted in the light of the Territory's Positive Law the contempt of which would deprive the Macau Legal System of its features. Some of those legal principles can be found in no.4 of the Joint-Declaration '(Quote) All rights and liberties of Macau citizens and others, namely personal freedom, as well as the freedom of expression, press, meeting, association, travelling and migration, to go on strike, to choose jobs, academic investigation, religion and faith, communications and private ownership (Unquote)'.
Common Legislative Procedures
The law is a set of resolutions passed by the Legislative Assembly. In order to pass resolutions all collegial bodies must perform quite a number of procedures before their decision can be enacted. These procedures may be defined as '(Quote) a set of phenomena which lead to a given result (Unquote)' (4).
The Legislative Assembly deals with common or specific procedures. The former covers general cases and the latter is applied to those cases which must be transacted differently due to their importance or meaning.
There are three special procedures which cover matters of the Macau Organic Statute, legislative authorization and ratification of decrees.
As regards the common legislative procedures, these can be originated either by the Governor with the submission of bills or any member or members since they are entitled to submit bills. Both members of the Assembly and the Governor can propose amendments to existing laws.
Upon submission of the bill or proposal to the Assembly's board, it shall be published in the Legislative Assembly Gazette and submitted to the Speaker who shall state whether such document is to be accepted or rejected.
If a document is to be rejected an order explaining why it has been rejected must be released. Proposals or bills shall be rejected only when they are covered by any of the following five cases: -
a) - They are unconstitutional either in terms of organic or material unconstitutionality, i. e. the former deals with matters exclusive of the Republic's sovereignty bodies and the latter violates constitutional provisions set out in the Portuguese Constitution or the Macau Organic Statute;
b) - They are illegal because they go against the national law originated in the Portuguese sovereingty bodies in respect of Macau and are not exclusive of the Legislative Assembly;
c) - They bring up matters which have already been rejected in the legislative session providing those proposals or bills deal only with matters previously rejected by the Legislative Assembly. This is designed to prevent the Assembly from getting involved in useless and tiring disputes;
d) - They are uncharacteristic or subjective because they fail to state precisely the scope of amendment to the current legal system; and
e) - In case of bills submitted by the Governor, they miss the Consultative Committee's advice.
Following the release of the rejection order, an appeal to the Assembly's plenary may be lodged in order to confirm whether to keep or change the Speaker's initial order.
In general, prior to their voting proposals and bills submitted within the same legislature do not need to be re-submitted. They can however be brought forward to the following legislative sessions.
Proposals or bills may be withdrawn by those who have submitted them. This notwithstanding, other members may take up any withdrawn proposal or bill and submit it again.
Proposals can only be submitted by a maximum of six members while bills must clearly state that the Consultative Committee's advice had been sought and signed by the Governor.
The submission of proposals and bills shall comply with the following formal rules:
a) - Submitted in writing; b) - Divided into articles; c) - Name or title to disclose their major object; d) - Explanatory note of the problems they are intended to solve and the solutions proposed.
Once a proposal or bill has been accepted and passed on to the relevant committee, the Speaker shall advise the Legislative Assembly of the fact. After this and no later than the second following meeting any member shall be free to appeal to the plenary for the removal of the acceptance order or the distribution order to the relevant committee.
Proponents of accepted proposals or bills are entitled to address the plenary and provide its members with explanations and answers regarding their proposals or bills.
Those members who have not subscribed to a proposal or bill can propose amendments, replacements, additions or deletions to the text of the proposal or bill.
Once a proposal or bill has been passed on to the relevant committee which might be of a permament or temporary nature (the latter being set up due to the importance of the project), the said committee shall release its advice within the period laid down by the Legislative Assembly's bylaws or the Speaker.
The committee can propose the Legislative Assembly to replace the text of the proposal or bill which has been submitted to it.
Should the committee fail to release its advice within the initial period of time or any extension therefrom, the proposal or bill shall be submitted to the plenary without the committee's advice.
Where proponents of the proposal or bill disagree with the committee's advice they are entitled to lodge an appeal to the plenary.
The first stage of the legislative procedure is completed when the text of the proposal or bill is finally settled to be discussed by the plenary. We would call it the initial or preparatory stage which comes before the deliberation stage.
Before proposals or bills can be discussed by the plenary they must be published in the Legislative Assembly Gazette or distributed to its members five days prior to their discussion.
The discussion and voting of proposals or bills is first done in general terms and then in particular terms.
The general discussion is aimed at the principle and system, i. e. their main ideas, organization and inter-relation as well as their global structure.
As regards the discussion in particular terms this is aimed at analysing and approving a given article or set of articles which deals with the same subject. This will allow a position over the whole proposal or bill to be taken.
Upon completion of the discussion in particular terms and if more than one committee has been involved in the process, the committee which has given its advice on the subject or the committee appointed by the Speaker for that purpose, shall set out the final version of the bill.
However, when writing the bill's final version the said committee shall not change the principles behind all documents and discussion. The committee's task shall be nothing else but to improve the style and the text structure.
The final version shall then be published in the Legislative Assembly Gazette and given to the members who can lodge an appeal to the Plenary in case they are in disagreement with the accuracy of the text.
When there are no appeals or if the ones lodged have been resolved and the matter has been settled, the final version of the bill can be prepared and this ends the second phase of the legislative procedure.
The last phase of the legislative procedure concerns the enactment of the bill by the Governor who shall sign the new law and send it for publication in the Government Gazette.
In case the Governor disagrees with the bill, the Legislative Assembly might take it again for discussion. If its position remains unchanged and two thirds of its members approve it, the Governor must proceed with the enactment his disagreement notwithstanding. However, if the said bill is an infringement to any constitutional law or any other Portuguese law which the Legislative Assembly is unable to revoke, the decision of whether to enact it or not shall be taken by the relevant Court.
Legislative Assembly's Support Services
In the early years the Legislative Assembly counted on the help from an Office(5). In August 1986 that was replaced by a General Office(6)which was divided into a Technical Section and an Administration Section. The former is engaged in: a) - juridical matters; b) - bibliographic and documental services; c) - writing orders, minutes and others; d)-written translation and instant interpretation between the Chinese and Portuguese and vice-versa; e) - publishing the Legislative Assembly Gazette and her publications.
The Administration Section is involved in more clerical affairs like staff management, accounting, property maintenance and filing.
The Legislative Assembly's General Office is under the direct supervision of the Board(7)which is headed by the Secretary General who in turn is helped by the Assistant Secretary General.
The Speaker has a personal secretary who shall be freely appointed by the former. The personal secretary shall terminate his assignment at the end of the Speaker's term of office or whenever the Speaker wishes to terminate the said assignment.
Translated from the Portuguese by José Vieira
NOTES
(1)In addition to the general limits specified herein some specific limits can be set up in accordance with the subjects being dealt with. The latter are the result of a more precise definition of the general limits, That is the case of the Criminal Law and Social Structuring Law which we will be focusing on in the next article.
(2)Some say that exclusive interest and specific interest have different meanings. Jorge Miranda, in his Constitutional Law Manual, Book III, 2nd Edition, Coimbra, 1987, page 267, and regional legislative autonomy and the specific interest in the Autonomic Regions, Constitution Papers, Volume 1, Lisbon, 1977, page 307, expresses the same view.
(3)Instead of political unity the expression national unity is used in most of the cases. We have chosen the expression political unity for the unity of the Chinese State because of the several nationalities it comprises. This is based on a cultural and sociological point of view rather than a juridical one.
(4)In João de Castro Mendes, Civil Procedural Law, 1980, Volume 1, page 34.
(5)The Legislative Assembly's Office was established pursuant to Decree-Law no.3/77/M, dated 28th of May, the purpose of which was to give the Legislative Assembly technical and administrative support.
(6)The Legislative Assembly's General Office was set up pursuant to Law no.8/86/M, dated 2nd of August.
(7)The power to manage the General Office can be assigned to the Speaker who can also delegate it to any other member, pursuant to article 7 of the above-mentioned law.
*Jurist
start p. 102
end p.