“Post-Colonial” Legal Interpretation in Macau, China: Between European and Chinese Influences

Chapter 4 “Post-Colonial” Legal Interpretation in Macau, China: Between European and Chinese Influences

Denis de Castro Halis

I Introduction

In the frame of academic discussions concerning transformation in post-colonial regions, this chapter presents a particular approach to the development of Macau’s1 political status and legal reality from a colonial to a non-colonial system under specific political and constitutional transition circumstances. On December 20, 1999 – the date when the Portuguese administration ceased – Macau effec- tively became a Special Administrative Region (sar) of the People’s Republic of China.2 As a result, similarly to Hong Kong, it is now marked by a high degree of autonomy from mainland China. As the number one gambling destination in the world, with casino revenues of about seven times that of Las Vegas,3 the small territory of Macau (about 30 km2) is quickly gaining the world’s attention and becoming known as the “Las Vegas of the East.”4 This booming economic development has raised great interest in Macau’s history and its peculiar characteristics, which include its legal system and its relation with that of the mainland. To classify Macau as a post-colonial region means that its characteristics might express a combination of different cultures (in this case, Asian and European). This chapter attempts to examine important aspects of that combination with a focus on the legal reality of Macau. Macau still stands as a place where European legal principles and procedures remain integrated in a Chinese context. The chapter discusses whether this legal reality is becoming

* Senior Lecturer, Faculty of Law, University of Macau. Contact: [email protected]. 1 Also spelled “Macao,” despite the fact that “Macau” is the original name in Portuguese. 2 Henceforth “China,” unless the full formal name is needed for establishing the difference between the “Republic of China” (or “Taiwan,” or yet “Taiwan, Province of China”) and for indicating that important turn into China’s history marked by the victory of the Chinese Communist Party led by Mao Zedong over the Kuomintang Party. 3 For the official revenue figures by time periods, in total, and by gaming concessionaires, see Gaming Inspection and Coordination Bureau of the Macau sar, accessed July 7, 2014, http://www.dicj.gov.mo/web/en/information/index.html. 4 In January 2015, Macau had a total of 35 casinos controlled by both foreign and local tycoons.

“post-colonial” Legal Interpretation In Macau, China 69 more “Chinese” to the detriment of its strong European roots and heritage. To address this, it is relevant to discuss the controversial political status of Macau throughout its history. Section II of this chapter discusses a sort of Shakespearean dilemma: “was Macau a colony, or was it not?” Also, is it possible to talk about Macau today in terms of a post-colonial reality? A brief historical outline will explain why Macau can be considered a “post-colonial” region. That will demonstrate some of the reasons behind the particularities of the region and its legal system. It will also help to visualize how those particularities influence government officials’ and judges’ interpretation of its laws. After discussing the political status of Macau, Section III begins by addressing the relation between Macau and mainland China, and the main principles that inform this relation. Later, it addresses the issue of how laws are interpreted in Macau, both from a partial description of its relevant pos- itive law and from a discussion of which interpretive perspective prevails (or must prevail) given that the region’s legal culture is marked by very dis- tinct influences (particularly from Asia and Europe). As for the latter discussion, the judges of the Court of Second Instance of Macau have formally disagreed on a “Chinese-law oriented perspective” versus a “Macau-based perspective” (which somehow reinforces its European legal heritage) for interpreting the laws. Finally, Section IV argues that the choice between those two interpretive perspectives (“Macau’s interpretive dilemma”) has very relevant practical implications in the evaluation of situations and on the outcome of cases to be decided by government officials and judges. Those practical implications are discussed and two real situations are provided as illustrations of how the government has been using the law in actual cases that involve fundamental rights and freedoms.

II Was Macau a Colony or Not? Is There a Post-colonial Reality in Macau?

Macau became a Special Administrative Region of China on December 20, 1999. On this day China officially resumed its sovereignty over the region, although it has yet to formally observe the terms agreed with Portugal for a period of 50 years. Thus, Macau is in a transitional period between the end of the Portuguese administration in 1999 and the moment when China will be able to exercise its unrestricted sovereign control in December 2049. The region is a historical locus of converging social, legal and political heri- tages from the East and the West. Such encounters of cultures and peoples