頁籤選單縮合
題 名 | 未來澳門特別行政區基本法中的分權原則=The Principles of Separation of Powers in the Basic Law of the Future Macau Special Administrative Region |
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作 者 | Magalhaes,Antonio Eduardo Baltar Malheiro de; | 書刊名 | 行政:澳門政府雜誌 |
卷 期 | 41 1998.09[民87.09] |
頁 次 | 頁861-877+938-939 |
分類號 | 575.8282 |
關鍵詞 | 澳門特別行政區; 基本法; |
語 文 | 中文(Chinese) |
英文摘要 | "Every society in which the guarantee of rights is not assured or the separation of powers indetermined has no constitution at all." The is prescribed in Article 16 of the Declaration of the Rights of Man and Citizen, which was adopted in France in 1789. In this way the value of the Constitution was confirmed as "the instrument of liberty" and the principle of separation of powers was established as the "great constant" of the Constitutional State. However, this principle planted its roots long time ago in periods of Ancient China and Greek-Roman Clivilization and was studied by several authors, like Aristotle, Polibio, Locke and Montesquieu. We stress a bit more on the reflections accomplished by the last two authors, whose ideas extended to today's world corresponding to two fundamental perspectives of the separation of powers, the functional and the political (Rogerio E. Scares). In addition to these two perspectives, another idea which was "generated" by the nineteenth century's liberalism and developed in the doctrine of our century joined in, i.e., a technical organizational perspective. The result of the conjugation of the last idea with the functional perspective is the so-called horizontal or "classical" separation of powers. The powers of state are divided into three: legislative, executive and judiciary. The function of each corresponds to one power or an "organizational complex". It happens today that as a result of federalism and of political administrative decentralization, particular importance is given to another form of the separation of powers - a doctrine that was called the "vertical separation". And we have the question of "delimitation of functions and powers" (...) according to the basic territorial criteria (Gomes Canotilho). From these two points of view, we intend to explore the designation of the principle of the separation of powers in the Basic Law of the future Macau Special Administrative Region. In fact, with the application of the principle of "one country, two systems" mentioned in Article 31 of the Constitution of the People's Republic of China and in the Luso-Chinese Joint Declaration of 1987, the future Macau Special Administrative Region will exercise a "high degree of autonomy" and enjoy " executive, legislative and independent judicial power, including that of final adjurisdition (...)" (Article 2 of the Basic Law). In our view this fundamental prescription means the separation of powers, not only vertically but also horizontally. Because of this, in the future there will be an unquestionable vertical separation of powers between the Central Government of Beijing and the Macau Special Administrative Region, while the former retains the sovereignty power on defense and external affairs. As for the horizontal separation, its specification spreads all over the Basic Law, where the idea of predominance of the executive power over legislative power is clearly asserted, leaving no leeway for arguments. For the social separation of powers, a part not yet found in the society of Macau, there is still room for discussion. However that is not included by this article, because in our opinion it is considerably out of the objective of our work. Nevertheless, to analyse the designation of the principle of separation of powers in the Basic Law remains a challenge for us. The results may not be totally innovative and not definite either. We just intend to contribute one more element to the study of the Constitutional Law of Macau. |
本系統中英文摘要資訊取自各篇刊載內容。