The History Evolution And Research Of Macao's Jurisdiction

Macao, as China's territory since ancientry, does not break off the central government of the past dynasties. However, because of the long occupancy of Portuguese and great difference on political and legal civilization between China and Portugal, the variance of Portugal's jurisdiction presents its particular side-by-side character.The fruit of the localization of law of Macao is plentiful in the academe, but the attention to the history of law of Macao is little. Although the clime of Macao is not big, but its social relation is complicated, different political powers collide here. This article researches the controversy of the sovereignty and dominion of Macao and the evolvement of the legal origin., and then the article strives to hackle the evolution of the jurisdiction of Macao since the open of its ports. At last, we can demonstrate the history continuity of China's sovereignty toward Macao. According to the history of China and Portugal, the scholar Wu Zhi-liang carves up the development of Macao's history as seven phases: the early intercourse between China and Portugal, the period of discussing official business, the enervation of the former period, the period of colonial control, Portugal's domination China's territory, transition period and the symbiosis between China and Portual in 21st century. The author of this article reckons that the partition is reasonable because it can reflect more directly that the strife of different political powers in Macao has great influence on the side-by-side character of Macao's legislation and judicatory and it is convenient to research the evolution of Macao's jurisdiction. Because it is the research of history of law, this article takes the six periods before transition as the scope of research. The four hundred history of evolution of Macao's jurisdiction is also the history of the contention and resistance of the ownership of Macao's jurisdiction. The colonial dilation of Portugal and the collision of the civilization between China and Portugal harm the traditional benefits and principles of China, a predominant country, but because of the power of Portugal and limited resources of Macao, the process of the contention appears relaxative, which looks like deep water flows under the quiet river.Though the centralization of state power was strengthened by Ming and Qing governments and they dominated the right of ultimate punishment to Macao's judicature all the time, there were some differences in the form of supervising. Concerning the reality of Portugal's territory expansion, Ming and Qing authorities established Macao to be a special emigrant community under their domination, inheriting and developing the Foreign-related organization system and local autonomy tradition of Ancient China. Meanwhile, Qing government tried to setup more institutions to rule Macao's justice. However, many reasons, such as the recessionary in national power and useless methods of regulating local government, resulted in the rudiments of self-government system leading by citizen of Marco from Portugal. Along with foreign great powers'colonial domination in China and Qing government's decadence, Portuguese living in Marco maturated the self-rule system and intensively disputed the jurisdiction of Marco. At the same time, owing to the changes in Portugal's interior and policies to other countries, Macao-Portuguese separated into several political forces and drastically pursuing their own benefit. Therefore, there were various governmental conflicts within the political powers, for instance, congress and viceroy, congress and royal judges, church and public, viceroy and legislative.In 1822, the first constitution of Portugal officially regarded Macaw as its overseas colony, and naturally applied Portuguese law. After the Opium War, Portugal gained control over Portugal, then simply transplanted Portuguese law system. Consequentially, the main statute books were adopted in Macaw one after another, on basis of which established the framework of Macao judicature system before transitional period. However, the Portuguese and Macao government mainly applied these transplanted law to Portuguese who lived in Macaw, therefore this judicial system obviously comes apart from the Chinese community. The social regulation function of judicature cannot have the full display. The Chinese people in Macaw seldom solve the civil and criminal disputes through legal way. This is the important reason for the two-track system of judicature.In 1974, the Portugal coup d'etat, announced the policy of "non-colonization", giving up the overseas colony. "The Constitution of Republic of Portugal" stipulated that Macaw did not belong to the Portugal, but was the Chinese territory ruled by Portuguese. From then on Macaw was regarded as a special area in fact. In 1976, Portugal announced a new constitution, allowing Macaw to enjoy the internal autonomy. "Macao Organization Regulation" was enacted in the same year, and establishing Macao Legislative Committee. According to the "Regulation" and "Constitution", Macaw, as a legal person in public law, enjoys the administrative, the economic, the financial and the legislative autonomy in a certain degree. This would be confirmed officially after three years when China and Portugal establishing diplomatic relationship. Portugal thus obtains the authorization from China to administrate Macaw in some sense, which justified its present dominance in Macaw. Hereafter, Macaw relatively independently exercises the judicial activity by one whole set of legal system transplanted from Portugal.After entering the transition-period, based on the widespread mutual understanding of the question of Macaw between China and Portugal, under the policy of "one country two systems", "ruled by the Macao people ", "substantial autonomy", Macaw launches the localization of "the original law". This is the most frequent time for legislation during Macao history of law. Many simply-transplanted codes and statutes can not be used once more because concerned with sovereignty question. Under the Joint effort of China and Portugal, Macaw characteristic legal system starts to form, and the judicial independence and the judicature Chinese-adapted have been realized. All these achievements lay a solid foundation for constructing Macaw's own legal system after return to China.Looking through the 400-year evolution of Macaw's judicial right, the Chinese government has never completely lost and continuously argued for the judicial right of Macaw. China has the solid foundation of law to restore the sovereignty to Macaw.