The Legal and Judiciary System of Macao

11:12, December 15, 2009      

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The Legal System
Macao’s legal system is founded on a strong tradition of adherence to the rule of law and judicial independence. Under the principle of “One country, two systems”, the Macao Special Administrative Region (MSAR) maintains Continental European law as the foundation of its legal system.

“The Basic Law of the Macao Special Administrative Region of the People's Republic of China” is the constitutional document for MSAR, adopted by the Seventh 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.

Almost all laws, decrees, by-laws and regulatory documents enacted in Macao prior to 20 December 1999, unless they conflicted with the Basic Law of the MSAR, remain in effect.

The Penal Code, Criminal Procedural Code, Civil Code, Civil Procedural Code and Commercial Code, which are collectively known as the “Five Codes”, form the authoritative framework of Macao’s legal system.

With the exception of laws regarding national defence, foreign affairs and other issues beyond its autonomy, MSAR can choose whether to adopt national laws of PRC. If it does not adopt a national law for use in Macao, it can choose to enact its own corresponding legislation.

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, and the Convention on the Elimination of All Forms of Discrimination Against Women.

The Judiciary System
The Basic Law gives MSAR independent judicial power, including the power of final adjudication. The courts of MSAR exercise judicial power independently and are subordinated to nothing but the law.

The MSAR 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.

With the establishment of the MSAR, two new courts, the Lower Court and Administrative Court, came into being as constituent parts of the Court of First Instance. The Basic Law also permits the Lower Court to form specialised tribunals, as required, and to retain the Examining Magistracy created under the former Portuguese administration. The Examining Magistracy therefore functions as part of the Lower Court.

The Administrative Court has jurisdiction over administrative and tax cases. Appeals against judgments by the Administrative Court can be lodged with an intermediate court.

The judges of the courts of the MSAR 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 MSAR 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 MSAR.

The Public Prosecutions Office of MSAR 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 MSAR. 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.

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