What Hong Kong and Macau can learn from Portuguese autonomous regions
Jason Buhi says the constitutional status of the Azores and Madeira, Portugal’s ‘ultraperipheries’, can be a fruitful source of comparisons and contrasts for Hong Kong and Macau’s relationship with Beijing
The Portuguese influence on Hong Kong is deeper than generally known. Portuguese traders and missionaries transformed Macau into the locus of East-West intercourse three centuries before Hong Kong was colonised. The British officers who led that operation (and the Portuguese clerks who aided them) departed Macau in 1841. In 1985, the Hong Kong Legislative Council adopted functional representation based on a model practised in metropolitan Portugal since 1933 – a legacy that remains to this day.
First, the two Portuguese autonomous regions (PARs) are recognised in the constitution, and their rights are spelt out there rather than in separate Basic Laws. This grants them some permanency in that their privileges can only be extinguished via a burdensome constitutional amendment process. Nonetheless, neither has the right to directly participate in any constitutional revision. Although Hong Kong and Macau are not specifically named in the 1982 Chinese Constitution, they do enjoy the protection of two bilateral treaties (the Sino-British and Portuguese joint declarations, respectively) and the basic laws, which insure another 30-odd years of autonomy. Portugal, on the other hand, has ratified the International Covenant on Civil and Political Rights, guaranteeing fundamental rights protected by the UN with no expiration date.
Second, although their legislative assemblies are elected by universal suffrage, the PARs’ autonomous legislative power is weak. While their legislators are elected once every four years via a popular vote tempered by party-list proportional representation, they enjoy only a “partially exclusive responsibility” to legislate in areas not foreclosed by the national assembly. Unlike the list of national laws that apply to Hong Kong and Macau in the annexes of their basic laws, the list of competencies reserved exclusively to Lisbon in Article 164 of the constitution is quite long. It includes jurisdiction over criminal, monetary and fiscal laws. Although Hong Kong and Macau’s legislatures are still hamstrung by archaic functional representation, they enjoy a significantly broader substantive sphere of legislative matters not reserved to the sovereign.
As the Azores and Madeira each have a population of roughly 250,000 and no notable industry, it is understandable that Portugal would be hesitant to create a more distinctive status for them.
It is easy to assume why Beijing would be interested in the Portuguese model, but no international practice is suitable to be copied per se. If the PARs portend the shape of things to come, they foreshadow a grand bargain where Hong Kong and Macau finally receive universal suffrage legislatures in exchange for Beijing receiving enhanced executive authority and economic benefits. While this would be in keeping with the emphasis on economic base over political superstructure, it would come at the cost of lost local characteristics including the suspension of an independent judiciary. I, for one, remain confident Hong Kong and Macau will continue to enjoy a high degree of autonomy in their next constitutional iterations. To preserve our dynamism, let us do as we have always done: cherry-pick the best Portugal has to offer while staying true to local conditions.
Jason Buhi is a member of the Maryland (US) Bar Association, a PhD candidate at the University of Hong Kong, and lecturer at Peking University School of Transnational Law in Shenzhen