Abstract

This article discusses the biligualistic legal system in Macau. The discussion begins with the outline of the history of the Macanese bilingualism. The author then examines the crucial distinction between the language in the law and the law in the language. By analogy to European Community and other bilingual legal systems, this article identies the characteristic of Macanese mulitlingualism. This article concludes with suggestions about a new approach and the role of universities in resolving the matter.


I. Introduction

My experience as a comparatist in Macau reminds me of the “accommodation method” rooted in the Jesuit missionary activity, an activity aimed at diffusing Christianity all over the world and addressing complex religious and cultural challenges.

Matteo Ricci used to adapt himself (“accomodare”) to the Chinese context, dressing as a Confucian monk, learning Chinese language and philosophy and overall finding similarities and harmonies in classical Chinese texts with Christian teachings. Similarly, this author attempts to consolidate a methodological approach to Macau, a jurisdiction which possesses a unique social and historical context.

A foreign observer in Macau immediately has two impressions: a multi-layered scaffolding of the society and of its legal system, and a sense of a continuous and not always foreseeable movement of change.

From a legal perspective, the new Macanese status of Special Administrative Region (SAR) of the People’s Republic of China surely represents to a non-Chinese scholar something new in comparison with the contemporary western legal landscape, but also something difficult to thoroughly understand through the mere use of the “conceptual lens” of the jurists.

The Macau SAR stems from the principle “one country, two systems” that allows two different systems to co-exist within one nation: Macau (and Hong Kong) under the previous capitalist system and the mainland China under its socialist system.

This principle, celebrated as a “creative masterpiece” by Deng Xiaoping, is the foundation of the “Basic Law” of Macau. It is expressed in a kaleidoscopic bundle of sub-principles related to each other: the principle of state sovereignty; the principle of high degree of autonomy; the principle of maintaining prosperity and protecting private property; and the principle of proceeding to democracy systematically.

On the one hand, the above shows that the relationship between Mainland China and Macau seems to be deeply and clearly entrenched in the Basic Law after the Sino-Portuguese Joint Declaration defined the time scheduled for solving the Macau handover to China; on the other hand, in the perspective of the evolution of the Macanese legal system, it is contended that section 5 of the Basic Law (“The socialist system and policies shall not be practiced in the Macau Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years”) (emphasis added) should not be seen as a mere and simple legal rule.

Notwithstanding the expressed political willingness of not changing the policies for the SARs of Macau and Hong Kong even beyond that period, it appears clear to me that section 5 of Macau Basic Law has a nature of a “metanorm” – belonging more to the political discourse rather than to a legal one. It could be objected that also in the western legal tradition countries, despite absence of an express “expiration date” of the law such as that stated in the aforementioned section 5, persistence of a certain juridical solution is linked to political willingness. However, the cited provision of the Basic Law affects not only a single norm, institute or a branch of the system, but an entire legal system, with its legal tradition and philosophy, culture and reasoning, values and founding principles.

Deng Xiaoping once said, “to make sure the (SARs) policy remains unchanged for 50 years and beyond, we must keep the socialist system in the mainland unchanged”. However, at present, Mainland China’s legal system is undergoing rapid legal reforms, of which its long term political and economic effects will be impossible to predict.

Just thirty years ago, Prof Victor Li of Stanford University, stated, “not having a substantial legacy of law and lawyers, contemporary Chinese society has assigned many functions which are handled by law in the United States to non legal organs”. Chow further commented “although a western concept of the rule of law failed to take root in China, China’s rulers did use law as an instrument of social control”, and that “China has made important progress in establishing rights of the individual as protection against the type of mindless persecution of innocent victims. . . . China has also made particularly significant strides in enacting new laws in the area of commercial and business law, intellectual property, administrative litigation and reform of the judiciary”.

It is clear from the above that there is a noticeable level of uncertainty concerning the future of Macau. If this uncertainty can be easily managed through the categories of politics and diplomacy, it will be more difficult to manage through the category of the law: lawyers work well when the winds of political changes cease and settle.

From a comparative perspective, one of the most interesting aspects of the Macanese legal system is represented by its bilingualism: that it is – paradoxically – either the expression of the abovementioned legal uncertainty, or the potential instrument to consolidate and strengthen the Macanese model.

In my opinion, there are at least four reasons for the interest: 1. The effort to translate all previous laws from Portuguese to Chinese heralds a historic moment of change which resulted in the construction of a new legal system; 2. the Macanese bilingualism is also of great interest because it intersects with the local and peculiar legal culture (differentiated somehow from the dominant Portuguese model); 3. Multilingualism in the legal systems has always been an engaging challenge and fascinating opportunity for the comparatist to experiment the efficacy and efficiency of the methodological luggage of comparative law; 4. Finally, multilingualism imposes the scientist to an accurate study on the special relation between law and the language.