Abstract | The Sino-Portuguese Joint Declaration affects the development of the legal system of Macau in several ways.
1. The legal system is indispensable for the institutionalisation of the process of the transference of sovereignty both in the transition period itself and in the period after those powers revert to the People's Republic of China.
2. The Joint Declaration is the defining statute concerning the status of Macau for the governments of the People's Republic of China and the Repub-lic of Portugal, and is a constitutional, self-limiting and materially binding agreement.
3. The Joint Declaration defines the transition period, in the strict sense, as the period between the date in which the Joint Declaration takes effect and 19 December 1999, inclusive. This transition must be undertaken and insti-tutionalised by the Republic of Portugal and the Portuguese administration of Macau. This fact is especially important to the People's Republic of China, which lends its friendly cooperation to ensure the application of the Joint Dec-laration so that the appropriate conditions will be created for the transfer of power in Macau, and to promote economic development and social stability during this period.
4. The Joint Declaration also establishes a period which extends from 20 December 1999 to 19 December 2049, and which may be called "the transi-tion period in a wider sense." This period may be described as one of separate systems, or as a period without transition. In other words, it is a period of self-limiting sovereignty and of the binding of the People's Republic of China and the Macau Special Administrative Region, which these two will achieve together.
This period is multifaceted if seen from different angles. It is not only the period of the establishment and consolidation of the Macau Special Adminis-trative Region of the People's Republic of China, but also the period of guar-antee, or of the bilateral and international binding of the People's Republic ofChina, acting on behalf of the Macau Special Administrative Region, with the Republic of Portugal and the international community according to the rules of international law.
It is a crucial period, although relatively neglected compared with the previous one, because no special arrangements or means of supervision are provided. It can be understood as a period that, without being indifferent to the Republic of Portugal once the powers of sovereignty have been transferred to the People's Republic of China, will take place under the People's Republic of China and Macau Special Administrative Region and, eventually, a period in which the principles of sovereignty and non-interference assume a more important dimension than the previous conditional self-binding limitations.
5. The approval of the Basic Law represents the manifestation of the sov-ereign will of the People's Republic of China with respect to the status of Macau as it arises from the Joint Declaration. According to the Joint Declaration, the fundamental policies mentioned in the Basic Law shall remain unchanged for fifty years. The Basic Law must comply with the Joint Declaration.
The approval of the Basic Law has occurred during the transition period, but it has not yet come into effect. As its premature application is impossible, the essential question is, "What is its present significance as a point of refer-ence; and once it takes effect, what is the possibility of its retroactive applica-tion?"
The legal implication of the Basic Law is essentially that influence which it should have on legislative policy and on the importance of its promulgation. In the development of the legal system of Macau no one can remain indifferent to the approval of the Basic Law because the legal implication of ignoring the Basic Law will be the eventual non-compliance with the Joint Declaration and the negative publicity arising from its divulgence.
6. The Joint Declaration must naturally be reaffirmed and consolidated as an important agreement, as an international treaty and as a normal consti-tutional model for the legal System of Macau and the Macau Special Admin-istrative Region by both the Republic of Portugal and the People's Republic of China from now until 19 December 2049.
7. The Joint Declaration must be protected as an indispensable instru-ment for the harmonious development and preservation of the legal system of Macau and the Macau Special Administrative Region. Nevertheless, as far as the Joint Declaration is concerned, reality must always be kept in mind. |
Recommended Citation GB/T 7714 |
Manuel M.Escovar Trigo. The Transition in the Sino-Portuguese joint Declaration[C]. Rufino Ramos, D. Y. Yuan, John E. M. Barnes, Wong Hon Keong, Macau:University of Macau Publication Centre, Macau Foundation, 1994.
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