Macau's Supreme Court example essay topic

Comparative Politics, typically defined as the study of the internal politics of nations other than our own, is a diverse and complex field. There is no one central tendency or approach which dominates this area of inquiry within political science: various theories, concepts, issues and methodologies are evident in the field. While it is recognized that no simple classification can be made of the literature, we are encouraged to be aware of contrasting approaches, and to engage in constructively critical, thinking about the field. For the purposes of study, there should first be general familiarity with the history and evolution of the field. This would comprise knowledge of the work and ideas of some of the major thinkers who have shaped comparative politics. Moving from this point I am going to bring about a structural comparison between two governmental systems that are India and Macau.

Both countries have their own unique types of governmental structures, judiciary and parliaments which really caught my deep interest to know more about these 2 countries, and to apply comparative method between the two governments. with special references to the geographical, structural, political legislative and judicial differences. GEOGRAPHICAL PERSPECTIVE INDIA The home of Taj Mahal, one of the seven modern wonders of the world, India is the second most populous country in the world and the 7th largest area wise. India is home to lots of religions and is secular by nature. Here is some religious information. The banks of the Ganges river, considered as one of the holy rivers by the Hindus, is lined by religious towns like Hardware, Varanasi in Uttar Pradesh. The Bhag wad Gita is one of the most widely read Hindu religious texts.

When anyone thinks of India, it is hard to escape thinkin about the Father of the Nation, Mahatma Gandhi, who has inspired many people like Martin Luther King Jr. by his non-violent stance in attaining independence for India. Here is another image of one of the greatest statesmen. India attained independence on August 15, 1947 from the British (a day after Pakistan's split from the Indian Union). The Indian flag is a tricolored one (saffron, white and green) with an ashoka chakra (24 spokes representing the 24 hours of the day). This flag is a curled one with a writing of "Mera Bharat M! than". MACAU Compared to India Macau is only a small province located in south-east China, on the western edge of the delta formed by the Pearl River Delta (Zhu Jiang) and the West River (Xi Jiang), bordering the Chinese province of Guangdong.

It is 70 kms (38 miles) from Hong Kong and 145 kms from Canton. Local time is eight hours ahead of Greenwich mean time. Macau covers a total area of 20.96 square kilometres which includes the Macau peninsula and the islands of Taipa and Coloane. Macau is connected to mainland China by a narrow isthmus.

Two bridges, the 'Ponte No bre de Carvalho' (2,600 metres long) and the 'Ponte da Amizade' (4,380 metres), inaugurated respectively in 1974 and 1994, connect the island of Taipa to the peninsula. The island of Coloane is reached from Taipa by way of a two kilometre-long isthmus, the right side of which is now an extensive land embankment. The total area of the enclave has been progressively enlarged through land reclamation along all waterfronts. For! example, in 1840, the Macau peninsula was, at 2.78 square kilometres, 2.5 times smaller than it is today. In physical terms, it is 63 times smaller than Hong Kong, 37 times smaller than Singapore and 5,000 times smaller than Portugal. At the end of 1995, Macau's resident population totalled 425,000, many times smaller than that of the India's.

POLITICAL SYSTEM INDIA India, a union of states, is a Sovereign, Secular, Democratic Republic with a Parliamentary system of Government. The Indian Polity is governed in terms of the Constitution, which was adopted by the Constituent Assembly on 26 November 1949 and came into force on 26 November 1950. The President is the constitutional head of Executive of the Union. Real executive power vests in a Council of Ministers with the Prime Minister as head. Article 74 (1) of the Constitution provides that there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice. The Council of Ministers is collectively responsible to the Lok Sabha, the House of the People.

In the states, the Governor, as the representative of the President, is the head of Executive, but real executive power rests with the Chief Minister who heads the Council of Ministers. The Council of Ministers of a state is collectively responsible to the elected legislative assembly of the state. The Constitution governs the sharing of legislative power between Parliament and the State Legislatures, and provides for the vesting of residual powers in Parliament. The power to amend the Constitution also vests in Parliament. The Union Executive consists of the President, the Vice President and Council of Ministers with the Prime Minister at the head to aid and advise the President.

MACAU Consensus is the cornerstone of Macau's political and social system. As the Joint Declaration of April, 1987, Macau is Chinese territory under Portuguese administration and it always been historically accepted that this trading post owes its origins to the understanding achieved between both countries. The Sino- Portuguese Joint Declaration is based on the common understanding that "the economic development and social stability of Macau and the greater strengthening of friendship and cooperation between the two countries" is, in terms of its historical legacy, the most appropriate way forward for the enclave. The agreement signed between Portugal and China stipulates the creation of the Macau Special Administrative Region in accordance with the principle of "one country, two systems". Within this autonomous region, the current social and economic systems as well as the way of life will remain intact. Article 3, paragraph 4 of the Joint Declaration states: "The Macau Special Administrative Region will guarantee, in accordance with the law, all the rights and freedoms of those living in Macau, including personal liberties, the freedom of expression, press freedom, the freedom of association and of movement, the right to strike and to choose a profession, freedom of academic research, of religion and belief, freedom of communication and the right to own private property".

This document, binding on both Portugal and China, was the building block on which the Basic Law of the future Special Administrative Region, approved on the 31st March, 1993, by the National People's Assembly, was based. The Basic Law will be put into force on the 20th December, 1999, when China assumes sovereignty over Macau. Article 2 of the Basic Law "grants the Macau Special Administrative Region with a high level of autonomy and independent executive, legislative and judicial powers, including that of final adjudication". Article 9 also states that "besides Chinese, the other official language accepted for use by the executive, legislative and independent judicial bodies of the Macau Special Administrative Region will be Portuguese". The creation of a base to sustain Macau's future political and administrative structure, alongside the indispensable conditions required for social progress and the modernization of the enclave's economy, has been achieved through a remarkable similarity of thinking between both the governments of Portugal and China. It has also been due to a permanent strenghtening of friendship and cooperation between Portugal and the People's Republic of China.

PARLIAMENTARY AND GOVERNMENTAL INDIA Parliament is the supreme legislative body of a country. The Indian Parliament comprises of the President and the two Houses- Lok Sabha (House of the People) and Rajya Sabha (Council of States). The President has the power to summon and prorogue either House of Parliament or to dissolve Lok Sabha. The Constitution of India came into force on January 26, 1950. The first general, elections under the new Constitution were held during the year 1951-52 and the first elected Parliament came into being in April, 1952, the Second Lok Sabha in April, 1957, the Third Lok Sabha in April, 1962, the Fourth Lok Sabha in March, 1967, the Fifth Lok Sabha in March, 1971, the Sixth Lok Sabha in March, 1977, the Seventh Lok Sabha in January, 1980, the Eighth Lok Sabha in December, 1984, the Ninth Lok Sabha in December, 1989, and the Tenth Lok Sabha in June, 1991. Presiding Officers Lok Sabha elects one of its own members as its Presiding Officer and he is called the Speaker.

He is assisted by the Deputy Speaker who is also elected by Lok Sabha. The conduct of business in Lok Sabha is the responsibility of the Speaker. The Vice-President of India is the ex-officio Chairman of Rajya Sabha. He is elected by the members of an electoral college consisting of members of both Houses of Parliament. Rajya Sabha also elects one of its members to be the Deputy Chairman. Functions of Lok Sabha and Rajya Sabha The main function of both the Houses is to pass laws.

Every Bill has to be passed by both the Houses and assented to by the President before it becomes law. The subjects over which Parliament can legislate are the subjects mentioned under the Union List in the Seventh Schedule to the Constitution of India. Broadly speaking, Union subjects are those important subjects which for reasons of convenience, efficiency and security are administered on all-lndia basis. The principal Union subjects are Defence, Foreign Affairs, Railways, Transport and Communications, Currency and Coinage, Banking, Customs and Excise Duties. There are numerous other subjects on which both Parliament and State Legislatures can legislate.

Under this category mention may be made of economic and social planning, social security and insurance, labour welfare, price control and vital statistics. Besides passing laws, Parliament can by means of resolutions, motions for adjournment, discussions and questions addr! essex by members to Ministers exercise control over the administration of the country and safeguard people's liberties. Difference between Lok Sabha and Rajya Sabha (1) Members of Lok Sabha are directly elected by the eligible voters. Members of Rajya Sabha are elected by the elected members of State Assemblies in accordance with the system of proportional representation by means of the single transferable vote.

(2) The normal life of every Lok Sabha is 5 years only while Rajya Sabha is a permanent body. (3) Lok Sabha is the House to which the Council of Ministers is responsible under the Constitution. Money Bills can only be introduced in Lok Sabha. Also it is Lok Sabha which grants the money for running the administration of the country. (4) Rajya Sabha has special powers to declare that itis necessary and expedient in the national interest that Parliament may make laws with respect to a matter in the State List or to create by law one or more all- lndia services common to the Union and the States. President The President is elected by members of an electoral college consisting of elected members of both Houses of Parliament and Legislative Assemblies of the states, with suitable weight age given to each vote.

His term of office is five years. Among other powers, the President can proclaim an emergency in the country if he is satisfied that the security of the country or of any part of its territory is threatened whether by war or external aggression or armed rebellion. When there is a failure of the constitutional machinery in a state, he can assume to himself all or any of the functions of the government of that state. Vice-President The Vice-President is elected in the same way as the President, and holds office for five years. The Vice- President is Ex-officio Chairman of the Rajya Sabha. Council of Ministers The Council of Ministers comprises Cabinet Ministers, Minister of States (independent charge or otherwise) and Deputy Ministers.

Prime Minister communicates all decisions of the Council of Ministers relating to administration of affairs of the Union and proposals for legislation to the President. Generally, each department has an officer designated as secretary to the Government of India to advise Ministers on policy matters and general administration. The Cabinet Secretariat has an important coordinating role in decision making at highest level and operates under direction of Prime Minister. The Legislative Arm of the Union, called Parliament, consists of the President, Rajya Sabha and Lok Sabha.

All legislation requires consent of both houses of parliament. However, in case of money bills, the will of the Lok Sabha prevails. Rajya Sabha The Rajya Sabha consists of 245 members. Of these, 233 represent states and union territories and 12 members are nominated by the President. Elections to the Rajya Sabha are indirect; members are elected by the elected members of Legislative Assemblies of the concerned states. The Rajya Sabha is not subject to dissolution, one third of its members retire every second year.

Lok Sabha The Lok Sabha is composed of representatives of the people chosen by direct election on the basis of universal adult suffrage. As of today, the Lok Sabha consists of 545 members with 2 members nominated by the President to represent the Anglo-Indian Community. Unless dissolved under unusual circumstances, the term of the Lok Sabha is five years. State Governments The system of government in states closely resembles that of the Union. There are 25 states and seven Union territories in the country. Union Territories are administered by the President through an Administrator appointed by him.

Till 1 February 1992, the Union Territory of Delhi was governed by the Central government through an Administrator appointed by the President of India. Through a Constitutional amendment in Parliament, the Union Territory of Delhi is now called the National Capital Territory of Delhi from 1 February 1992. General elections to the Legislative assembly of the National Capital Territory were held in November 1993. Political System A recognised political party has been classified as a National Party or a State Party. If a political party is recognised in four or more states, it is considered as a National Party. Eleven Lok Sabha have been constituted so far.

Except for the short-lived Sixth and Ninth Lok Sabha, the Congress Party ruled the country. The Sixth Lok Sabha functioned for about two years and four months and the Ninth Lok Sabha functioned for one year and two months. Even in the states, the regional parties or the non-congress parties have gained in importance over the years. The ruling parties in the states are listed below. MACAU Macau has two governmental bodies with political and legislative authority: the Governor and the Legislative Assembly. In accordance with the autonomy consecrated in the Organic Statute of Macau, the exercise of the legislative function by both bodies, and the executive function by the Governor, assisted by seven under-secretaries, is guaranteed.

The two bodies, however, have different political statutes: The Governor is Portugal's representative in Macau and is politically accountable to the President on all issues pertaining to the Republic, excepting the law courts; The Legislative Assembly is a body of mixed representation: eight deputies are directly elected by the people, another eight deputies are indirectly elected by the representative bodies of local interests and seven deputies are appointed by the Governor. In exercising his executive and legislative functions, the Governor is assisted by the Consultative Council, which consists of five members appointed by the Governor and five who are indirectly elected. The Governor. The Governor is nominated, appointed and dismissed by the President of the Republic of Portugal after consultation with the Legislative Assembly and bodies representing local interest groups in Macau. The governor's duties are the following: - to represent the President of the Republic of Portugal, the Portuguese parliament and the government of Portugal in Macau; - to represent the enclave in internal affairs and, when requested by the President of the Republic, in external affairs; - to assume responsibility for the internal security and, when requested by the President, for the external security of Macau; - to take the necessary steps in accordance with the law to ensure public order; - to legislate, i.e. sign laws and bills and authorise their publication, ensure that laws and regulations are carried out, pass decrees and write decrees; - to direct the general policy, define the structures and regulate the monetary and financial markets; - to guarantee the freedom, fullness of action and independence of the judiciary; - to supervise the public administration and oversee the finances. The Governor ensures political co-ordination with the help and advice of seven under-secretaries, who are nominated and dismissed by the President of the Republic at the Governor's recommendation.

The Legislative Assembly. The Legislative Assembly is composed of 23 deputies elected for a four-year term. Eight deputies are directly elected by the 120,000-strong electorate, and eight deputies are elected indirectly by bodies representing local interests. Seven deputies are appointed by the Governor from among those residents held in high esteem by the local community. The Legislative Assembly has four legislative sessions, each one of which does not, as a rule, exceed eight months. Each of these sessions may be divided into two or three periods, the first of which beginning on the 15th October each year, and the last ending, in general, on the 15th June of the following year.

The duties of the Legislative Assembly are: - to ensure constitutional and statutory norms and laws are complied with and to make recommendations and propose alterations to the Organic Statute of Macau; - to legislate, in accordance with its mandate, on matters falling outside the jurisdiction or sovereignty of the Republic or the Governor; - to grant legislative authorisation to the Governor and ratify or modify any bill proposed by him on matters which are not his exclusive responsibility; - to authorise the Governor to raise loans and effect other credit operations in accordance with the law; - to appraise the actions of the Governor, the under-secretaries and the administration and, on the basis of detailed justification, veto governmental actions. The Municipalities. Macau is divided into two urban councils: the peninsula or the city of Macau itself, and the islands of Taipa and Coloane. Each of them is administered by a an urban councils whose mayor is nominated by the Governor. Each mayor is answerable their to his respective Executive Committee as well as the Municipal Assembly. The remaining members are elected either directly or indirectly through local council elections.

Leal Senado (Loyal Senate) It is Macau's urban council. It's name originates from the time (1580-1640) when Portugal was invaded by Spain and absorbed into the Spanish Empire and Macau, alone, refused to hoist the Castilian flag. This deed was duly recognised after the restoration of independence in 1640 when the words "Cidade do Nome de Deus de Macau, no h outr a mais leal" (Macau, city of the Name of God, there is no other more loyal) were added to the city's coat of arms. The Sino-Portuguese Joint Liaison Group And The Sino-Portuguese Land Group The Joint Liaison Group is a permanent body set up to ease consultation and the exchange of information between the governments of Portugal and the People's Republic of China. It has no administrative function within the territory. The Joint Liaison Group's duties are the following: - to consult on the application of the Joint Declaration and its annexes as well as on the actions that both governments should take in order to maintain and promote, among others, the economic and cultural relations of the future Macau Special Administrative Region; - to exchange information and consult on matters relating to the handover in 1999 and other matters to be agreed upon by both parties.

The Joint Liaison Group consists of ten members, five of which (four permanent members headed by an ambassador), being appointed by each side. Both parties may also appoint experts and further necessary support staff, the numbers of which to be decided upon through consultation. The Liaison Group has also been charged with the analysis and approval of important political and administrative affairs, amongst which are: the three localizations (law, government personnel and language), the integration of civil servants, air traffic legislation and Macau's adherence to the precepts of international organisations. The Joint Liaison Group meets three times a year in, alternately, Lisbon, Beijing and Macau. The Sino-Portuguese Land Group is a body set up by the governments of Portugal and China to deal with land concession contracts and other related matters in Macau. It consists of three representatives from each side and those supplementary staff members agreed upon.

The specific functions of the Land Group are: - to decide upon the total area of land concessions to be granted beyond 20 hectares (the Governor has the exclusive right to decide up to a limit of 20 hectares per year); - to decide upon the division and use of the money thereby obtained (divided equally between Macau's Portuguese administration and the future Macau Special Administrative Region, once the average cost of land reclamation has been deducted); - to submit the government of Macau's proposals to the Chinese side for the future use of land revenues which, after 1999, will belong to the Macau Special Administrative Region. JUDICIAL SYSTEM INDIA The Supreme Court is the apex court in the country. The High Court stands at the head of the state's judicial administration. Each state is divided into judicial districts presided over by a district and sessions judge, who is the highest judicicial authority in a district.

Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub-judges, civil judges and the like. Similarly, criminal judiciary comprises chief judicial magistrate and judicial magistrates of first and second class. Supreme Court The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to all disputes between the Union and one or more states or between two or more states. The Constitution gives an extensive original jurisdiction to the Supreme Court to enforce Fundamental Rights. Appellate jurisdiction of the Supreme Court can be invoked by a certificate of the High Court concerned or by special leave granted by the Supreme Court in respect of any judgement, decree or final order of a High Court in cases both civil and criminal, involving substantial questions of law as to the interpretation of the constitution.

The President may consult the Supreme Court on any question of fact or law of public importance. The Supreme Court of India comprises of the Chief Justice and not more than 25 other Judges appointed by the President. Judges hold office till 65 years of age. High Courts There are 18 High Courts in the country, three having jurisdiction over more than one state. Bombay High Court has the jurisdiction over Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu. Guwahati High Court, which was earlier known as Assam High Court, has the jurisdiction over Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh.

Punjab and Haryana High Court has the jurisdiction over Punjab, Haryana and Chandigarh. Among the Union Territories, Delhi alone has had a High Court of its own. The other six Union Territories come under jurisdiction of different state High Courts. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the state.

Each High Court has powers of superintendence over all courts within its jurisdiction. High Court judges retire at the age of 62. The jurisdiction as well as the laws administered by a High Court can be altered both by the Union and State Legislatures. Certain High Courts, like those at Bombay, Calcutta and Madras, have original and appellate jurisdictions. Under the original jurisdiction suits, where the subject matter is valued at Rs. 25,000 or more, can be filed directly in the High Court.

Most High Courts have only appellate jurisdiction. Lok Ada lat Lok Ada lats are voluntary agencies for resolution of disputes through conciliatory method. Legislative Relations Between the Union and States Under the Constitution, Parliament has the power to make laws for the whole of or any part of the territory of India. The State Legislatures have the power to make laws for the States.

The subjects on which legislation can be enacted are specified in the Seventh Schedule of the Constitution. Parliament has the exclusive right to legislate in respect of items appearing in List I, called the "Union List". This list includes area such as defence, foreign affairs, currency, income tax, excise duty, railways, shipping, posts and telegraphs, etc. State Legislatures have the exclusive power to make laws in relation to items appearing in List II called the "State List". This includes items like public order, police, public health, communications, agriculture, lotteries, taxes on entertainment and wealth, sales tax and octroi, etc. Both Parliament and the State Legislatures have the power to legislate in items appearing in List of the Constitution which is known as "Concurrent List".

This list includes items like electricity, newspapers, criminal law, marriage and divorce, stamp duties, trade unions, price controls, etc. MACAU Macau's judicial system is fully autonomous placing a historical obligation on Portugal to ensure that post-1999 a modern state of law reflecting the particular conditions in the territory, and respecting and safeguarding its fundamental rights and freedoms is established. Judicial autonomy is an objective shared by the governments of Macau, Portugal, and the People's Republic of China. The Sino-Portuguese Joint Declaration of 1987 clearly recognises an judicial autonomy, including the power of final adjudication in the future SAR.

As stated in the chapter which refers to fundamental policies, "The courts are to be independent, free from any interference and only subject to the law". The Basic Law envisages three levels of judicial appeal: the Courts of First Instance, a Court of Second Instance and a Court of Final Appeal. The former will comprise courts of a specialised nature such as the present Criminal Court. The Special Administrative Region will also have an Administrative Court, appeals on whose decisions will be heard at the Court of Second Instance.

Macau's current legal system comprises the Courts of First Instance and the higher courts. In the first case, the General Court has the authority of a judicial court and may pass sentence. The Criminal Court, meanwhile, has control over preparatory instruction and preliminary enquiries. Appeals on decisions taken in the lower courts in Macau, which until April, 1993 were submitted to the Court of Appeal or the Supreme Court of Justice in Lisbon, are now heard at Macau's Supreme Court, established on the 2nd March, 1992, which has the power of final adjudication. In administrative law, the Supreme Court also holds the authority to decide in matters of, for example, fiscal and customs law. In lower courts this comes under the authority of the Administrative Court, whereas all matters relating to the financial control of the administration, public services and local authorities fall under the jurisdiction of the Audit Court which was also created by the Law of Bases of the Jud! i cial System.

On a different level, the Portuguese courts still play a role within Macau's judicial structure. Besides the Supreme Court of Justice, the Constitutional Court has maintained its power to adjudge the constitutionality and legality of decisions taken by the Legislative Assembly; the Supreme Administrative Court maintains the right to pass judgment on appeals brought against the actions of the Governor and his under-secretaries; and the Audit Court in Lisbon assesses any potential divergence between the government of Macau and the local Audit Court. The revision of the Organic Statute of Macau, with the objective of bringing the governments of Macau and Portugal closer together, led to the achievement of complete autonomy within the judicial system, the ultimate proof coming with the establishment of a Court of Final Appeal as foreseen in the Basic Law of the future Macau Special Administrative Region. The training of local legal personnel is fundamental during the period of! transition. The Law of Bases opened the way for Macau's first bilingual magistrates. These graduated in 1993 from the University of Macau.

At the end of 1995, the Magistrate College accepted its first intake of students. These students are from either Macau or China, are law graduates, from a university in Portugal or Macau, and are fluent in both the Chinese and Portuguese languages. They will became the next judges and agents of the public prosecutor's office, positions that have hitherto always been occupied by Portuguese magistrates. To Be ConTinued.