Duas leis parecidas, uma diferença básica

Two similar sets of laws, one basic difference

Frank Ching (*)
South China Morning Post
December 15, 2009

Following Portugal's Carnation Revolution of 1974, the new socialist government in Lisbon offered to return Macau to China but the offer was turned down. China knew that, if it took back Macau, there would be alarm in Hong Kong. The fates of Macau and Hong Kong were, and still are, very closely connected. In the end, China did not take Macau back until after the handover of Hong Kong from Britain.

Both Hong Kong and Macau were provided with a Basic Law by the National People's Congress. These mini-constitutions are largely similar, but with some significant differences. Each, for example, contains an Article 23 obliging the local government to enact laws prohibiting treason, secession, sedition and subversion against the central government.

With the 10th anniversary of the establishment of the Macau Special Administrative Region approaching on Sunday, a symposium was held in Beijing a week ago to mark the coming into effect of Macau's Basic Law.

Wu Bangguo, the NPC chairman, had words of praise for Macau that, to many, seemed like veiled criticism of Hong Kong. For one thing, he praised Macau's people because they "did not politicise conflicts and problems" and had properly handled relations between Macau and Beijing.

He also praised the patriotism of Macau's people and said they agreed that "Macau affairs are China's internal affairs" and they "resolutely oppose and resist interference by external forces". Furthermore, he said that the promulgation of Macau's state security law, in line with Article 23, had further strengthened local people's concept of nationhood.

He did not have to mention that Hong Kong has still not implemented Article 23 legislation after the fiasco in 2003, when half a million people marched to oppose the proposal.

No doubt, in Beijing's mind, many people in Hong Kong have not properly handled relations with the central government and so are not even allowed to travel to the mainland. They have also invited "interference by external forces" and politicised "conflicts and problems".

Of course, Chinese officials denied that the words were directed at Hong Kong. Li Gang, a deputy director of the central government's liaison office in Hong Kong, rejected the idea that Wu's remarks were actually criticism of Hong Kong.

Nonetheless, many Hong Kong politicians - and, no doubt, government officials - are interpreting Wu's remarks as pressure on the former British colony to implement Article 23. If this does not happen in the remaining years of Chief Executive Donald Tsang Yam-kuen's term, no doubt the next chief executive will see it as one of his primary missions.

There are other striking differences between the Macau Basic Law and that of Hong Kong. For one thing, while Hong Kong's legislature is technically fully elected, albeit in various ways, Macau's has appointed members. The Macau Basic Law, speaking of the legislature, says simply: "The majority of its members shall be elected."

Unlike the Hong Kong Basic Law, which says the ultimate goal is the election of both the chief executive and all legislators by universal suffrage, the Macau Basic Law is silent on that point. Since China had two more years to ponder the provisions in the Macau Basic Law, it seems likely that they more accurately reflect Beijing's preferences.

The British lobbied hard for an elected legislature to be put first in the Joint Declaration, and then implemented in the Basic Law. The Portuguese, it seems, did not consider it important. The result is that Macau's much tamer population, which can probably be counted on to return chief executives and legislators acceptable to Beijing, have been denied such a right. Ironically, Hong Kong's much more assertive population is demanding such a right, and Beijing clearly does not feel comfortable about granting it.

(*) Frank Ching is a Hong Kong-based writer and commentator.