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UNIVERSIDADE ESTÁCIO DE SÁ DOUTORADO EM DIREITO BETWEEN TWO SYSTEMS of LAW: Administrative Law Litigation in Macau's Court O

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UNIVERSIDADE ESTÁCIO DE SÁ DOUTORADO EM DIREITO BETWEEN TWO SYSTEMS of LAW: Administrative Law Litigation in Macau's Court O UNIVERSIDADE ESTÁCIO DE SÁ DOUTORADO EM DIREITO BETWEEN TWO SYSTEMS OF LAW: Administrative Law Litigation in Macau’s Court of Final Appeal DENIS DE CASTRO HALIS RIO DE JANEIRO 2019 UNIVERSIDADE ESTÁCIO DE SÁ DOUTORADO EM DIREITO BETWEEN TWO SYSTEMS OF LAW: Administrative Law Litigation in Macau’s Court of Final Appeal DENIS DE CASTRO HALIS Tese apresentada à Universidade Estácio de Sá, sob a orientação do Professor Doutor Rafael Mario Iorio Filho, como requisito parcial para a obtenção do título de Doutor em Direito RIO DE JANEIRO 2019 H173b Halis, Denis de Castro Between two systems of law: administrative law litigation in Macau’s Court of Final Appeal / Entre dois sistemas de direito: litigância em direito administrativo no Tribunal de Última Instância de Macau. / Denis de Castro Halis.– Rio de Janeiro, 2018. 206 f. Tese (Doutorado em Direito) – Universidade Estácio de Sá, 2018. 1. Macau. 2. China. 3. Litigância de Direito Administra – tivo. 4. Independência do judiciário. 5. Um país e dois sistemas. I. Título. CDD 340.1 To my energetic baby Lucas, who offered the support that all one-year-old balls of joy can offer. ABSTRACT The Special Administrative Region (SAR) of Macau, China, has a high degree of autonomy from the Central Government in Beijing despite being a part of the Chinese territory. Macau’s high degree of autonomy is intertwined with the political-legal principle of “one country, two systems”, under which Macau can maintain some of its important distinctive characteristics derived from its own special historical development, strongly connected to the region’s previous administration by Portugal. In its blend of Asian and European legacies, Macau’s own cultural, political, economic, and legal realities are, in many ways, different from those of the mainland China. This thesis addresses the way that Macau’s Court of Final Appeal has used its power to decide cases against the government during its initial ten years of operation. This study resorts to literature review and legal and empirical analysis, linking law and social sciences. It lies at the crossroads of different thematic areas, from judiciary studies to studies on the greater China. To categorize and analyze the administrative law disputes brought before the Court of Final Appeal is vital because this area of law most directly involves the government and its agents and the possibility of challenging their actions. It was found that the Court of Final Appeal has not mimicked the behavior of the mainland courts which operate under a framework of close cooperation with the government. Keywords: Macau, China, Administrative Law Litigation, Judicial Independence, One Country and Two Systems. RESUMO A Região Administrativa Especial de Macau, na China, tem um alto grau de autonomia em relação ao Governo Central em Pequim, apesar de fazer parte do território chinês. Este elevado grau de autonomia está entrelaçado com o princípio político-jurídico de “um país, dois sistemas”, segundo o qual Macau pode manter algumas das suas características distintivas derivadas do seu desenvolvimento histórico fortemente ligado à anterior administração da região por Portugal. Em sua combinação de legados asiáticos e europeus, as realidades culturais, políticas, econômicas e jurídicas de Macau são, em muitos aspectos, diferentes das da China continental. Esta tese aborda a forma como o Tribunal de Última Instância de Macau usou seu poder para decidir casos contra o governo durante seus primeiros dez anos de operação. Este estudo recorre à revisão de literatura e análise jurídica e empírica, usando métodos de direito e ciências sociais. Encontra-se na encruzilhada de diferentes áreas temáticas, desde estudos judiciários até estudos sobre a grande China. É vital categorizar e analisar as disputas de direito administrativo levadas ao Tribunal de Última Instância porque essa área de direito envolve diretamente o governo e seus agentes e a possibilidade de contestar suas ações. Entre outras, conclui-se que o Tribunal de Última Instância não imitou o comportamento dos tribunais da China continental que operam sob uma estrutura de estreita cooperação com o governo. Palavras-chave: Macau, China, Litigância de Direito Administrativo, Independência do Judiciário, Um País e Dois Sistemas. LIST OF CONVENTIONS ADOPTED “Mainland” – Term that refers to the continental portion of the territory of the People’s Republic of China except Macau and Hong Kong. “China” – The People’s Republic of China. “PSC” – People’s Supreme Court. “CCP” – Chinese Communist Party CFA – Macau’s Court of Final Appeal “The Court” – Macau’s Court of Final Appeal CSI – Macau’s Court of Second Instance Table Numbers – The numbering of the tables re-starts in each of the chapters. Any term, expression or passage in a language other than English will be presented in italic. TABLE OF CONTENTS I. INTRODUCTION I.1. Thesis Overview………………………………………………………………………...p. 1 I.2. Relevance, Timeframe, Methods and Goal…………………………………………...p. 6 II. LITERATURE REVIEW: LAW AND JUDICIARIES OF MACAU AND MAINLAND CHINA II.1. Introduction……………………………………………...…………………………...p. 10 II.2. Literature on Macau’s Judiciary and its Court of Final Appeal………….…………p. 11 II.3. The First System: Legal and Judicial Systems of Mainland China……...………….p. 14 II.3.1. Contemporary Role of Law in the Chinese Society……………….………….p. 14 II.3.2. Legal and Judicial Systems with “Chinese Characteristics”………..……….p. 16 II.3.3. Chinese Rule of Law…………………………………………………...……p. 17 II.3.4. Legislatures……………………………………………………………........p. 23 II.3.5. Democratic Centralism: Cooperation Rather than Separation of Powers…...p. 25 II.3.6. Judicial Review……………………………………………………………...p. 26 II.3.7. Judiciary’s Independence and Relation with the Communist Party………...p. 29 II.3.8. Legal Profession…………………………………………………………….p. 34 II.3.9. The People’s Supreme Court: Development and Role……………………….p. 38 II.3.10. Administrative Law Litigation…………………………………………….p. 43 II.4. Conclusion…………………………………………………………………………….p. 46 III. METHODOLOGY III.1. Thesis Design and Overall Methods…………………………………………….…p. 47 III.2. Research Questions and Hypotheses……………………………………………….p. 49 III.3. Data Setting and Sample Collection…………………………………………………p. 52 III.3.1. Difficulties in Measuring Judicial Independence……………………………p. 52 III.3.2. Timeframe…………………………………………………………………p. 56 III.3.3. Analysis of Administrative Law Disputes in Macau’s Judiciary……….…p. 56 III.3.4. Universe of Cases and Decisions: The Differences in the Data……………p. 60 III.4. Conclusion…………………………………………………………………………p. 64 IV. LAW AND JUDICIARY OF AMBIVALENT MACAU: THE SECOND SYSTEM IV.1. Introduction…………………………………………………………………………..p. 65 IV.2. Ambivalent Macau and its Legal Reality……………………………………………p. 66 IV.2.1. History and Overview: A Blend of Asian and European Influences…….…p. 66 IV.2.2. Portuguese Legal Matrix and Other Influences…………………………...….p. 70 IV.2.3. Legal and Judicial Systems: Main Principles Securing the Ambivalence…...p. 72 IV.2.3.1. “One Country, Two systems” and “High Degree of Autonomy”….....p. 72 IV.2.3.2. Continuity………………………………………………...……………p. 76 IV.2.3.3. Residency and “Macau People Governing Macau”…………………...p. 78 IV.3. Macau’s Judiciary and Court of Final Appeal……………………………………...p. 79 IV.3.1. Introduction………………………………………………………………...p. 79 IV.3.2. Provisions on Judiciary Independence……………………………………...p. 80 IV.3.3. Publicity of Judicial Decisions and Hearings………………………………...p. 83 IV.3.4. Judiciary Structure…………………………………………………………p. 85 IV.3.5. Judicial Precedents, Doctrine and Comparative Law………………………p. 87 IV.3.6. Relevance of the Administrative Law Judicial Litigation in the CFA…….p. 92 IV.4. Conclusion…………………………………………………………………………p. 94 V. MACAU’S COURT OF FINAL APPEAL: BETWEEN LAW AND POLITICS V.1. Introduction…………………………………………………………………………p. 96 V.2. The Court of Final Appeal: Structure, Functioning, Competence……………….…p. 97 V.2.1. Structure…………………………………………………………………….p. 97 V.2.2. Functioning…………………………………………………...…………….p. 98 V.2.3. CFA’s Number of Requests and Decisions.…………………...……………p. 99 V.2.4. Competence……………………………………………….………………p. 102 V.3. Courts’ Use of their Political Power and the Case of the CFA…...……………….p. 104 V.4. Law and Politics in the SARs and in the Mainland……………………………….p. 108 V.5. Frontiers of the High Degree of Autonomy……………………………………….p. 111 V.6. The NPC Standing Committee’s Intervention………………………………………p. 116 V.7. Interpretation of the Basic Law……………...…………………………………….p. 119 V.8. Interpretive Perspectives…………………………………………………………….p. 121 V.9. Legal Resources in CFA’s Administrative Law Decisions………….…………….p. 125 V.10. Conclusion...…………………………………………………………...………...…p. 128 VI. JUDICIAL ADMINISTRATIVE LITIGATION AND THE ADJUDICATION OF THE COURT OF FINAL APPEAL VI.1. Introduction………………………………………………………………………..p. 129 VI.2. Judicial Review of Administrative Law Cases: A Comparison Across Macau’s Judiciary………….……………………………...………………………………..p. 132 VI.2.1. Caseload by Area of Law in the First Instance………………….…………p. 133 VI.2.2. Caseload by Area of Law in the Court of Second Instance……………….p. 135 VI.2.3. Caseload by Area of Law in the Court of Final Appeal………………….p. 139 VI.2.4. Conclusion from the Caseload Analysis of all Areas of Law in the Three Judicial Instances………………………...………………………………………...p. 144 VI.3. CFA’s Adjudication in Administrative Law Cases…………………………….....p. 146 VI.3.1. Introduction………………………………………………………………p. 146 VI.3.2. Differences in the Universe of CFA Decisions and Cases……………….p. 148 VI.3.3. Effectiveness of the Use of the Law in Challenging the Government
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