The General Regime of Fundamental Rights in the Basic Law and in the International Instruments

Abstract

1 Twenty years of writings on Macau legal order consolidated many presuppositions and “acquirements” of our thought regarding several fundamental aspects. Some of them, specifically concerning the subject of the rights, freedoms, and guarantees, will be remembered later on in due time. In this article, for reasons of brevity, we will not go through some topics that, although constituting important presuppositions of the treatment of their subject, have already been developed and grounded in other writings. Among others: Canas (1987, pp. 69–93), where for the first time we stood for the thesis of the separation between the two legal orders – Portuguese and Macanese – and their respective fundamental norms (in the kelsenian sense), with the consequence that the Portuguese Constitution was only applied in Macau through reception processed by rules materially constitutional of the Territory (maxime Macau Organic Statue, or EOM). Canas (1992a, pp. 393–455, 1992b, 2003, p. 157 ff). In these three essays, in what concerns the system and the form of government of the Macau Territory, we essayed to demonstrate the need to distinguish three levels of analysis clearly: the constitutional/statutory system, the apparent factual system, and the real factual system. Canas (1993, pp. 18–20), where we developed the thesis that the enlargement of the International Covenant on Economic, Social and Cultural Rights of 1996 was positive with a view either before or after 1999, while the enlargement of the International Covenant on Civil and Political Rights was more positive for the period following 1999 than for the moment of the enlargement due to its “drawn back” character regarding the rules of 1976 Portuguese Constitution, received by EOM. Canas (1997, pp. 147–174), where we anticipated that from the institutional and organizational point of view, the Basic Law provided guarantees by which the system and the form of the government would remain essentially unchanged after the handover. Canas (2001, pp. 225–245), where we supported that the MSAR presents suitable aspects of a political region, of a federal State, and even of an independent State, with the Basic Law having the nature of a semi-constitutional instrument regarding RPC Constitution. The present text is the first written by the author after the entry in force of the MSAR Basic Law.