Macao Legal Landscape | Introduction to Macao's Legal System (Part 1) - The Basic Law and Fundamental Judicial System

Preface

With the continuous strengthening and increasing cooperation and exchanges between Shandong and Hong Kong and Macao in various fields of economic and trade cooperation, as well as the smooth holding of activities such as the "Hong Kong Macao Shandong Week", there are more and more opportunities for cooperation between Shandong and Hong Kong and Macao. In the process of deepening economic and trade cooperation, understanding the legal system and business environment of Hong Kong and Macao has become crucial - the differences in legal systems between different jurisdictions, compliance requirements for cross-border transactions, and the choice of dispute resolution mechanisms all have a profound impact on the implementation and promotion of cooperation projects. To this end, the author will write a series of articles on the legal systems of Hong Kong and Macao, systematically sorting out the legal frameworks and practical rules of the two places, providing accurate legal references for Shandong enterprises to expand into the Hong Kong and Macao markets, and helping cross-border cooperation to steadily move forward on the compliance track.

Macao, a land that integrates diverse cultures, carries a profound historical heritage and unique development trajectory in its legal system. Since its return to the embrace of the motherland in 1999, under the guidance of the "One Country, Two Systems" policy, the legal system of Macao has not only retained its past characteristics, but also continuously adapted to the needs of the new era, undergoing profound changes and innovations, playing a key role in maintaining social stability and promoting economic prosperity in Macao. Exploring the legal system of Macao in depth not only helps us to have a comprehensive understanding of Macao's social governance model, but also provides valuable experience for regional legal and cultural exchange and integration. This article will first deeply analyze the basic legal system of Macao, starting from its historical evolution, elaborating on its process from feudal legal system to current autonomous legal system, as well as the core position and key role of the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the "Basic Law") under the "One Country, Two Systems" policy.

In the early feudal legal system stage, the judicial organization in Macao constantly changed with the change of dynasties. At that time, the functions of administration and judiciary were not clearly distinguished, and local administrative officials often concurrently served as judicial adjudicators. The legal system is mainly based on the laws and regulations of feudal dynasties, which cover various aspects such as criminal and civil norms, with the main purpose of maintaining feudal order and ensuring basic social stability. In the handling of civil cases such as land disputes and contract disputes, as well as criminal cases such as theft and brawling, we follow the principles and procedures of feudal law, and pay attention to the embodiment of the principles of etiquette and hierarchical order in judicial judgments.

In the early feudal legal system stage, the judicial organization in Macao constantly changed with the change of dynasties. At that time, the functions of administration and judiciary were not clearly distinguished, and local administrative officials often concurrently served as judicial adjudicators. The legal system is mainly based on the laws and regulations of feudal dynasties, which cover various aspects such as criminal and civil norms, with the main purpose of maintaining feudal order and ensuring basic social stability. In the handling of civil cases such as land disputes and contract disputes, as well as criminal cases such as theft and brawling, we follow the principles and procedures of feudal law, and pay attention to the embodiment of the principles of etiquette and hierarchical order in judicial judgments.

With the gradual occupation of Portugal, Macao entered a period of colonial rule of law. During this period, Macao's legal and judicial system was deeply influenced by the Portuguese legal system, with a large number of legal provisions and judicial procedures transplanted from Portugal's legal system. The introduction of the prosecutor system changed the single mode of judicial adjudication in the past and strengthened the prosecution and supervision of criminal acts; The establishment of Chinese exclusive courts to a certain extent takes into account the special situation and traditional customs of the local Chinese society in Macao, and is a limited adaptation to the local actual situation under colonial rule. However, this legal system is essentially aimed at safeguarding the interests of colonial rule, and there are obvious inequalities and limitations in the application of law and the distribution of judicial power.

With the gradual occupation of Portugal, Macao entered a period of colonial rule of law. During this period, Macao's legal and judicial system was deeply influenced by the Portuguese legal system, with a large number of legal provisions and judicial procedures transplanted from Portugal's legal system. The introduction of the prosecutor system has changed the single mode of judicial adjudication in the past and strengthened the prosecution and supervision of criminal acts; The establishment of Chinese exclusive courts to a certain extent takes into account the special situation and traditional customs of the local Chinese society in Macao, and is a limited adaptation to the local actual situation under colonial rule. However, this legal system is essentially aimed at safeguarding the interests of colonial rule, and there are obvious inequalities and limitations in the application of law and the distribution of judicial power.

At a specific historical stage, Macao obtained legislative autonomy, thus entering a period of dual legal systems. Although it could formulate some laws based on local needs to a certain extent, the judicial system was still deeply influenced by Portugal. During this period, Macao's legal system presented a complex state, with laws enacted by local legislative bodies and the continued application of Portuguese law. In the process of applying the law, conflicts and coordination issues frequently arose between different legal sources, requiring solutions through special legal interpretations and application rules, which also posed certain challenges to Macao's judicial practice.

At a specific historical stage, Macao gained legislative autonomy, thus entering a period of dual legal system. Although some laws can be formulated according to local needs to a certain extent, the judicial system is still deeply influenced by Portugal. During this period, the legal system in Macao presented a complex state, with both laws enacted by local legislative bodies and the continued application of Portuguese law. In the process of legal application, conflicts and coordination issues between different legal sources often arise, which require special legal interpretations and application rules to be resolved. This also poses certain challenges to the judicial practice in Macao.

During the transitional legal period before the return, Macao took important steps towards judicial independence and gradually established its own judicial organizational system. Through a series of legal reforms and institutional construction, Macao has been able to break free from excessive dependence on the Portuguese judicial system in terms of the selection and appointment of judicial personnel, as well as the standardization of judicial procedures, laying the foundation for judicial autonomy after its return. During this period, Macao began to actively participate in the process of legal localization, integrating some internationally recognized legal principles and concepts into the local legal system, in preparation for adapting to the new system after the return.

During the transitional legal period before the return, Macao took important steps towards judicial independence and gradually established its own judicial organizational system. Through a series of legal reforms and institutional construction, Macao has been able to break free from excessive dependence on the Portuguese judicial system in terms of the selection and appointment of judicial personnel, as well as the standardization of judicial procedures, laying the foundation for judicial autonomy after its return. During this period, Macao began to actively participate in the process of legal localization, integrating some internationally recognized legal principles and concepts into the local legal system, in preparation for adapting to the new system after the return.

After the return, the Macao Special Administrative Region entered a period of autonomous legal system. According to the Basic Law, Macao enjoys a high degree of autonomy, including independent judicial power and the power of final appeal. During this period, the legal system in Macao was continuously adjusted and improved based on the actual situation and development needs of Macao, while retaining the characteristics of the original European legal system. The Legislative Council of the Macao Special Administrative Region actively exercises its legislative power and has formulated a series of laws that are in line with the local socio-economic development. It has built a legal system with Macao characteristics in various legal fields such as civil and commercial, criminal, and administrative.

After the return, the Macao Special Administrative Region entered a period of autonomous legal system. According to the Basic Law, Macao enjoys a high degree of autonomy, including independent judicial power and the power of final appeal. During this period, the legal system in Macao was continuously adjusted and improved based on the actual situation and development needs of Macao, while retaining the characteristics of the original European legal system. The Legislative Council of the Macao Special Administrative Region actively exercises its legislative power and has formulated a series of laws that are in line with the local socio-economic development. It has built a legal system with Macao characteristics in various legal fields such as civil and commercial, criminal, and administrative.

In 1987, the governments of China and Portugal signed a joint statement on the issue of Macao, confirming that the government of the People's Republic of China resumed sovereignty over Macao on December 20, 1999. In order to ensure the stability and development of Macao after its return, in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, the National People's Congress began to formulate the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the "Basic Law"). During the formulation process, the opinions of people from all walks of life in Macao were widely solicited, and various factors such as Macao's history, culture, society and economy were fully considered. After years of research, discussion and revision, it was finally adopted at the first session of the Eighth National People's Congress on March 31, 1993, and officially implemented on December 20, 1999.

In 1987, the governments of China and Portugal signed a joint statement on the issue of Macao, confirming that the government of the People's Republic of China resumed sovereignty over Macao on December 20, 1999. In order to ensure the stability and development of Macao after its return, in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, the National People's Congress began to formulate the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the "Basic Law"). During the formulation process, the opinions of people from all walks of life in Macao were widely solicited, and various factors such as Macao's history, culture, society and economy were fully considered. After years of research, discussion and revision, it was finally adopted at the first session of the Eighth National People's Congress on March 31, 1993, and officially implemented on December 20, 1999.

The Basic Law consists of nine chapters and 145 articles, covering various aspects such as general provisions, the relationship between the Central Government and the Macao Special Administrative Region, the basic rights and obligations of residents, political system, economy, culture, and social affairs. Its core principles are reflected in "One Country, Two Systems", "High Degree of Autonomy", and "Australians Governing Australia". The "high degree of autonomy" grants the Macao Special Administrative Region extensive administrative, legislative, independent judicial, and final adjudication powers, enabling it to independently manage internal affairs based on local conditions; The concept of 'Australians governing Macao' emphasizes that permanent residents of Macao shall form administrative and legislative bodies in accordance with the law, participate in the governance of Macao, and fully demonstrate respect for the right of Macao residents to be the masters of their own affairs.

The Basic Law consists of nine chapters and 145 articles, covering various aspects such as general provisions, the relationship between the Central Government and the Macao Special Administrative Region, the basic rights and obligations of residents, political system, economy, culture, and social affairs. Its core principles are reflected in "One Country, Two Systems", "High Degree of Autonomy", and "Australians Governing Australia". The "high degree of autonomy" grants the Macao Special Administrative Region extensive administrative, legislative, independent judicial, and final adjudication powers, enabling it to independently manage internal affairs based on local conditions; The concept of 'Australians governing Macao' emphasizes that permanent residents of Macao shall form administrative and legislative bodies in accordance with the law, participate in the governance of Macao, and fully demonstrate respect for the right of Macao residents to be the masters of their own affairs.

The Basic Law is the constitutional law of the Macao Special Administrative Region and holds a core and foundational position in Macao's legal system. It serves as the basis and standard for the formulation of other laws in Macao. No laws, decrees, administrative regulations, or other normative documents of the Macao Special Administrative Region may contradict the Basic Law. The Basic Law not only guarantees Macao's high degree of autonomy and protects the basic rights and freedoms of Macao residents, but also provides a solid legal guarantee for Macao's political stability, economic development, and social harmony. It is the fundamental law for Macao's long-term stability and prosperity.

The Basic Law is the constitutional law of the Macao Special Administrative Region and occupies a core and cornerstone position in the Macao legal system. It is the basis and guideline for the formulation of other laws in Macao, and any laws, decrees, administrative regulations, and other normative documents of the Macao Special Administrative Region shall not conflict with the Basic Law. The Basic Law not only guarantees a high degree of autonomy for Macao and safeguards the basic rights and freedoms of Macao residents, but also provides solid legal protection for Macao's political stability, economic development, and social harmony. It is the fundamental law for Macao's long-term stability, prosperity, and development.

The court organization system of the Macao Special Administrative Region includes primary courts, intermediate courts, administrative courts, and final courts.

As the first instance court, the primary court undertakes a large amount of trial work for first instance cases. It can establish specialized courts for criminal, civil, economic, etc. according to actual needs. Usually, a single judge forms a sole court to hear simple cases, and for complex cases, a collegiate bench is formed to hear them.

The Intermediate Court exercises some of the powers of the High Court before the return, responsible for hearing appeal cases against the judgments of the lower courts, as well as some specific types of first instance cases, and operates in the form of review committees and hearings during the trial of cases.

The Administrative Court is a court specialized in handling administrative litigation, tax litigation, and customs litigation. At the trial level, it belongs to the primary court, and if dissatisfied with its judgment, it can appeal to the intermediate court.

The Court of Final Appeal exercises the power of final appeal of the Special Administrative Region and is the highest judicial body in the Macao judicial system, with final legal effect on the final judgments of various cases.

The court organization system of the Macao Special Administrative Region includes primary courts, intermediate courts, administrative courts, and final courts. As the first instance court, the primary court undertakes a large amount of trial work for first instance cases. It can establish specialized courts for criminal, civil, economic, etc. according to actual needs. Usually, a single judge forms a sole court to hear simple cases, and for complex cases, a collegiate bench is formed to hear them. The Intermediate Court exercises some of the powers of the High Court before the return, responsible for hearing appeal cases against the judgments of the lower courts, as well as some specific types of first instance cases, and operates in the form of review committees and hearings during the trial of cases. The Administrative Court is a court specialized in handling administrative litigation, tax litigation, and customs litigation. At the trial level, it belongs to the primary court, and if dissatisfied with its judgment, it can appeal to the intermediate court. The Court of Final Appeal exercises the power of final appeal of the Special Administrative Region and is the highest judicial body in the Macao judicial system, with final legal effect on the final judgments of various cases.

The Macao Special Administrative Region has established a prosecutor's office with broad powers. The prosecutor's office represents the Macao region, the Macao Currency and Exchange Supervision Office, the municipal government, and persons without legal capacity to participate in litigation, initiate public prosecution and appear in court to support the prosecution in criminal proceedings, lead criminal investigation work and supervise the work of police agencies, maintain judicial independence, ensure the execution of court judgments, act as litigation agents for workers and their families in accordance with the law, prevent criminal activities, participate in bankruptcy and all litigation involving public interests, provide legal advice to the Chief Executive, and file protests against improper court judgments. Unlike the mainland procuratorial organs, the procurator general of the Macao Special Administrative Region Procuratorate is nominated by the Chief Executive and appointed by the Central People's Government, while prosecutors are appointed by the Chief Executive, and their work is to some extent under the command and supervision of the Chief Executive.

The Macao Special Administrative Region has established a prosecutor's office with broad powers. The prosecutor's office represents the Macao region, the Macao Currency and Exchange Supervision Office, the municipal government, and persons without legal capacity to participate in litigation, initiate public prosecution and appear in court to support the prosecution in criminal proceedings, lead criminal investigation work and supervise the work of police agencies, maintain judicial independence, ensure the execution of court judgments, act as litigation agents for workers and their families in accordance with the law, prevent criminal activities, participate in bankruptcy and all litigation involving public interests, provide legal advice to the Chief Executive, and file protests against improper court judgments. Unlike the mainland procuratorial organs, the procurator general of the Macao Special Administrative Region Procuratorate is nominated by the Chief Executive and appointed by the Central People's Government, while prosecutors are appointed by the Chief Executive, and their work is to some extent under the command and supervision of the Chief Executive.

The selection and appointment of judicial personnel in Macao have strict procedures and standards. The selection of judges usually requires candidates to possess good legal professional qualities, rich legal practice experience, and noble professional ethics. Generally, excellent legal talents need to be selected through open recruitment and selection procedures, rigorous qualification review, written exams, interviews, and other processes. The appointment of prosecutors also follows a similar strict procedure, emphasizing the professional competence and ethics of candidates. In addition, in order to ensure the independence and impartiality of judicial personnel, they shall enjoy corresponding judicial immunity and professional security during their tenure, and shall not be arbitrarily dismissed or transferred without legal procedures.

The selection and appointment of judicial personnel in Macao have strict procedures and standards. The selection of judges usually requires candidates to possess good legal professional qualities, rich legal practice experience, and noble professional ethics. Generally, excellent legal talents need to be selected through open recruitment and selection procedures, rigorous qualification review, written exams, interviews, and other processes. The appointment of prosecutors also follows a similar strict procedure, emphasizing the professional competence and ethics of candidates. In addition, in order to ensure the independence and impartiality of judicial personnel, they shall enjoy corresponding judicial immunity and professional security during their tenure, and shall not be arbitrarily dismissed or transferred without legal procedures.

In its historical development, Macao's legal system has integrated traditional Chinese legal culture, Portuguese legal culture, and internationally accepted legal principles and concepts, forming a unique legal cultural landscape. This integration of diverse legal cultures enables Macao's legal system to be eclectic and comprehensively utilize the advantages of different legal cultures when solving practical problems, providing rich legal resources for the harmonious development of Macao society. When dealing with disputes involving family ethics, it can draw on the values of traditional Chinese legal culture that emphasize family harmony and respect for the elderly and the young, and also use the rights and obligations norms in modern legal systems to achieve the unity of legal effects and social effects.

In its historical development, Macao's legal system has integrated traditional Chinese legal culture, Portuguese legal culture, and internationally recognized legal principles and concepts, forming a unique legal cultural landscape. This integration allows Macao's legal system to leverage the strengths of different legal cultures when addressing practical issues, providing abundant legal resources for the harmonious development of Macao society. When handling family disputes, it draws upon the values of family harmony, respect for elders, and care for the young from traditional Chinese legal culture, while also applying the rights and obligations of modern legal systems to achieve a balance between legal and social outcomes.

Macao's legal system is closely structured and refined around the economic and social development needs of the region. In the economic sphere, laws and regulations are tailored to Macao's dominant industries (gambling, tourism, and services), fostering healthy industry growth and maintaining market order. In the social welfare sector, laws guarantee residents' basic rights (education, healthcare, housing, and social security), ensuring social stability and harmony. For instance, strict regulations govern the gambling industry, preventing excessive speculation and negative social consequences while promoting its coordinated development with other sectors.

The legal system of Macao is closely built and improved around the economic and social development needs of the Macao region. In the economic field, corresponding legal norms have been formulated in response to the characteristics of Macao's dominant industries such as gambling, tourism, and services, promoting the healthy development of industries and ensuring market order. In the field of social livelihood, the basic rights of residents such as education, healthcare, housing, and social security are guaranteed through legal means, providing legal protection for social stability and harmony. For example, in terms of regulating the gambling industry, strict laws and regulations have been formulated to regulate gambling operations, prevent excessive speculation and negative social impacts, while promoting the coordinated development of the gambling industry with other industries.

The Basic Law and other related laws provide comprehensive and detailed protection for the rights and freedoms of Macao residents. Residents are equal before the law and enjoy freedoms of speech, publication, assembly, association, procession, demonstration, and religious belief; their personal freedom and dignity are protected, as are their residential and communication privacy. Judicial practice strictly follows legal procedures, safeguarding the litigation rights of all parties and ensuring equality before the law, creating a free, fair, and just social environment.

The Basic Law and other relevant laws provide comprehensive and detailed protection for the rights and freedoms of Macao residents. Residents are equal before the law and enjoy various rights such as freedom of speech, publication, assembly, association, procession, and demonstration, freedom of religious belief, personal freedom from infringement, personal dignity from infringement, and legal protection of residential and communication secrets. In judicial practice, strict adherence to legal procedures, safeguarding the litigation rights of parties, ensuring equality before the law, and creating a free, fair, and rule of law social environment for residents.