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Tourists take photos at the Ruins of St Paul's in Macau on December 13. In addition to religion and culture, Portugal brought to its colony a continental European civil law system. Photo: Nora Tam
Opinion
Opinion
by Jerome A. Cohen
Opinion
by Jerome A. Cohen

Macau and Hong Kong are too different for Beijing to treat them like peas in a pod

  • Their different colonial histories bequeathed to Hong Kong and Macau different legal heritages that influenced their populations’ expectations of the government
  • While Portugal offered Macau residents full citizenship, it also paved the way for Beijing to embed its officials in Macau’s postcolonial civil service and legal system
Jerome A. Cohen
Jerome A. Cohen
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Hong Kong and Macau have never been twins. Yet, despite the huge differences between the two former European colonies, China has long sought to treat them like peas in a pod.

Chinese President Xi Jinping’s visit to Macau to celebrate the 20th anniversary of Portugal’s handover of the territory to China is an occasion to consider why the “one country, two systems” formula that has been applied so smoothly to Macau has led to a depressing disaster in Hong Kong.
This occasion also highlights the importance of the legal system, especially the criminal justice system, in the implementation of one country, two systems. After all, it was the opposition to the Hong Kong government’s proposed extradition bill, which would have subjected anyone within Hong Kong to the mainland’s criminal justice system, that sparked the present conflagration.
It is the Hong Kong government’s refusal, presumably backed by Beijing, to allow an independent investigation into the conduct of the Hong Kong police that prevents progress towards moderating the prevailing strife.

Hongkongers are the products of their distinctive legal history, which has left them with experiences, values, institutions, norms, procedures and expectations that are very different from those of their Macau neighbours.

The English did not bring political democracy to Hong Kong, but they did bring the common law and its belief in and practices for subjecting government to the rule of law. Colonial administrators were controlled by officials in London, who were themselves accountable to an increasingly democratic domestic legal system that illustrated to their colonies the expanding freedoms of expression and protections against arbitrary detention that the common law came to guarantee.

Hong Kong, like many former British colonies, but unlike Singapore, has continued to respect this model in both theory and practice.

The people of Macau, so ethnically, culturally, linguistically and geographically linked to their Hong Kong cousins, have had a markedly different historical experience. Portugal brought to Macau a continental European civil law system and a criminal process that rested on different philosophical, religious and political developments and traditions that were reflected in the legal institutions established.

Often, those continental traditions proved too malleable in Lisbon to resist the demands of politicians who sought to impose authoritarian government. Although Portugal has developed a democratic government in recent decades, it could in no way match the political, diplomatic and military power that even a declining Britain could bring to bear in its negotiations with China.
Koo Sze-yiu and other activists from the League of Social Democrats were denied entry to Macau even before they boarded the turbojet in Sheung Wan, Hong Kong, on December 18. Photo: May Tse

Macau therefore presented more attractive prospects for succumbing to the control of a communist legal system that is itself an amalgam of the Soviet legal system – which adapted continental European legal models – and China’s pre-“liberation” Kuomintang system, which Chiang Kai-shek developed from Western European models and Leninist influences.

Yet Beijing left nothing to chance in bringing Macau back to the motherland. It took ample advantage of Portugal’s eagerness to surrender its colony to the inevitable. Indeed, decades earlier, during the Cultural Revolution, Lisbon had tried to persuade Beijing to accept the colony’s return but was rebuffed by a Chinese government that was itself in turmoil and not ready to assume the responsibility, being content to gradually tighten its noose around Macau.

Post reporter denied entry into Macau to cover Xi Jinping’s visit

By the late 1990s, however, Beijing was ready, willing and able to implement one country, two systems in Macau in ways that Britain would not permit in Hong Kong. For example, the Post reported that, years before the 1999 handover of Macau, Beijing sent at least a dozen able cadres to Portugal to study the country’s language and law.

After the handover, unlike in Hong Kong, they were assigned to important positions in Macau’s new postcolonial legal system, especially in criminal law enforcement, serving as police, prosecutors and even judges. A compliant legal system was thus arranged.

Another key factor was the Portuguese government’s granting, before the handover, of full Portuguese citizenship to residents born in Macau before 1982 and their families, thereby enabling those who wished to avoid living under communist rule to live in Portugal or even other European Union countries.

Britain denied Hongkongers a similar opportunity, leading many to pursue the more difficult path of obtaining Canadian, Australian, American and other foreign passports while many more remained in the city. One could ponder what might have occurred had Britain decided to follow the Portuguese example in various respects.

Jerome A. Cohen, professor and faculty director of NYU Law School’s US-Asia Law Institute, is also adjunct senior fellow at the Council on Foreign Relations

This article appeared in the South China Morning Post print edition as: History shows Hong Kong and Macau are no twins
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