The Legal and Judiciary System
Macao’s legal system is founded on the Rule of Law and judicial independence.
Under the principle of “One country, two systems”, the legal system of the Macao
Special Administrative Region (MSAR) remains unchanged, belonging to the
Romano-Germanic family of law.
The Basic Law of the Macao Special Administrative Region of the People's
Republic of China is the constitutional document for the Macao Special
Administrative Region, adopted by the National People's Congress (NPC) in
accordance with the Constitution of the People’s Republic of China (PRC).
The Basic Law sets a foundation for all systems and policies implemented in
Macao including its social system, economic system, protection of fundamental rights
and freedom, administration, legislation and justice, and the relevant policies.
Laws of the Macao Special Administrative Region
The laws presently in force in the Macao Special Administrative Region
include: The Basic Law; National laws listed in Annex III to the Basic Law; Laws
that were in effect before 20 December 1999 and which have been retained as laws
of the Macao Special Administrative Region by the Standing Committee of the
National People’s Congress; and Laws enacted by the legislature of the Macao Special
Administrative Region.
The Penal Code, Criminal Procedural Code, Civil Code, Civil Procedural Code
and Commercial Code, collectively known as the “Five Codes”, form the authoritative
framework of Macao’s legal system.
National laws shall not be applied in the Macao Special Administrative Region,
except those listed in Annex III to the Basic Law. Laws listed in Annex III shall be
applied locally by way of promulgation or legislation by the Macao Special
Administrative Region. Currently, 13 national laws apply in the Macao.
The Standing Committee of the National People’s Congress may add to or delete
from the list of laws in Annex III after consulting its Committee for the Basic Law of
the Macao Special Administrative Region and the Government. Only those laws
relating to defence, foreign affairs and other matters outside the limits of the
Region’s autonomy as specified in the Basic Law are to be listed in Annex III to the
Basic Law.
Fundamental Rights
The Basic Law safeguards the fundamental rights of the people of Macao. These
include the freedom of speech, freedom of the press, freedom of association and
assembly, freedom of procession and demonstration, the right to organise and join
trade unions and to strike, freedom of religion, freedom to travel, and freedom to enter
and leave Macao. Provisions applicable to Macao in the International Covenant on
Civil and Political Rights, the International Covenant on Economic, Social and
Cultural Rights and a number of international labour conventions also remain in force.
Macao continues to comply with the main international conventions on human
rights, including the International Convention on the Elimination of All Forms of
Racial Discrimination, Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Convention on the Rights of the Child,
Convention on the Elimination of All Forms of Discrimination Against Women and the
Convention on the Rights of Persons with Disabilities, among others.
Key Characteristics and Sources of Law
The Macao Special Administrative Region legal system has its foundation in
the Romano-Germanic family of Law (civil law family) due to well-known historical
reasons.
Following the civil law tradition, written law is the primary source of law in
accordance with Article 1 of the Macao Civil Code. In addition, the major relevant
legislation is inserted in the ‘five big codes’, with a clear division of the branches of
law between private and public law.[1] The Macao Civil Code, for instance, follows the
model of the German Civil Code (Bűrgerliches Gesetzbuch — BGB), which was also
the main source of inspiration for the Portuguese Civil Code. The structural division of
the Civil Code in Five Books, the rules relating to the interpretation and application of
the law, as well as the subsidiary nature of the Civil Code to the other sub-branches of
private law are key examples of the civil law characteristics embodied in the Macao
legal system (and which have been maintained).
Principles such as the rule of law, legal certainty, equality, non-discrimination,
publicity, as well as the protection of fundamental rights, are milestone principles of
the Macao Special Administrative Region legal system. Official publication of laws in
Criminal Code, Commercial Code, Commercial Registry Code, Civil Registry Code, Property Registry
Code.
[1]
the Macao Special Administrative Region Official Gazette, regardless of their source,
is a requisite for their effectiveness (Article 4 of the Civil Code and Law 3/1999, of 20
December).
Another civil law feature is that the Macao Special Administrative Region
remains a monist system. International and domestic laws are part of the same legal
order. Once international treaties duly ratified or approved by the PRC, or in the
appropriate fields by the Chief Executive, are published in the Official Gazette, they
become part of the Macao Special Administrative Region legal system immediately
and automatically. There is no need to incorporate international law into domestic law
in order to have effect.
Furthermore, in the event of a conflict between international conventional law
and ordinary domestic law, the former prevails over the latter (Article 1 (3) of the Civil
Code).
So, the hierarchy of sources of law also follows the civil law tradition, with
constitutional law at the top of the hierarchy, international conventional law at the
second level, and ordinary legislation at the next level. Custom and case law are not
primary sources of law.
The Judiciary System
The Basic Law gives the Macao Special Administrative Region independent
judicial power, including the power of final adjudication. The courts of Macao exercise
judicial power independently and are subordinated to nothing but the law.
The Macao Special Administrative Region has the Court of First Instance,
the Court of Second Instance and the Court of Final Appeal. The structure, powers
and functions of the courts are established by law.
The Lower Court can form specialised tribunals, as required. The Examining
Magistracy has been retained by the SAR Government.
As to the judiciary structure, it comprises three layers: Courts of First Instance
(Primary Courts), a Court of Second Instance (Intermediate Court) and a Court of Final
Appeal. There are two Courts of First Instance: the Judicial Court, with general
jurisdiction, and the Administrative Court, with jurisdiction over administrative, tax
and customs and excise cases. The Judicial Court comprises the following sections
with subject-matter jurisdiction: Civil Sections (3), Criminal Investigation Sections
(1), Small Claims Sections (1), Criminal Sections (4), Labour Sections (1), and Family
and Minors Sections (1). The Court of Second Instance has general appellate
jurisdiction and the Court of Final Appeal is vested with the power of final
adjudication. The Macao Special Administrative Region courts have no jurisdiction
over acts of State, namely defence and foreign affairs.
The judges of the courts of the Macao Special Administrative Region at all
levels are appointed by the Chief Executive, on the recommendation of an independent
commission composed of local judges, lawyers and eminent persons. Judges are
chosen on the basis of their professional qualifications. Qualified judges of foreign
nationality may also be employed. Hence, some Portuguese judges have continued to
serve the territory.
The Presidents of the courts of Macao Special Administrative Region at all
levels are appointed by the Chief Executive from amongst the judges of the courts.
The President of the Court of Final Appeal must be a Chinese citizen who is a
permanent resident of the Macao.
The Public Prosecutions Office of Macao Special Administrative Region
exercises its functions as vested by law independently and free from any interference.
The Public Prosecutor-General is nominated by the Chief Executive and appointed by
the Central People's Government and must be a Chinese citizen who is a permanent
resident of Macao Special Administrative Region. Public Prosecutors are nominated
by the Public Prosecutor-General and appointed by the Chief Executive. The structure,
powers and operation of the Public Prosecutions Office are prescribed by law. At
present, there are four experienced Portuguese procurators in the procuratorate
and one of whom is the Assistant Public Prosecutor-General.