Issue of Nationality of Macao-Born Portuguese

by Chio In Fong, Deputy Chief of Legal Studies Department of Xinhua News Agency Macao Bureau

Macao is a beautiful seaport city open to all parts of the world, where Oriental and Occidental cultures meet, and where Chinese and Portuguese have long co-existed. Of the residents in Macao, Chinese have always been a mainstream social stratum covering most extensively in the region. But in a historical course of several hundred years of the region, as a result of intermarriage between Portuguese and Chinese or other ethnic groups, a new and unique social stratum has taken its shape – the stratum of Macao-born Portuguese, also known as Macaense.

In a broad sense, Macao-born Portuguese refer to those born in Macao of Portuguese extraction, including Portuguese who have lived in the region for long or for generations, and the descendants from the intermarriage between Portuguese and Chinese or between Portuguese and other ethnic groups. But in view of the population structure in Macao, Macao-born Portuguese actually refer to the descendants from the intermarriage between Portuguese and Chinese, of both Portuguese and Chinese extraction. Although they are descendants from the intermarriage between Portuguese and Chinese, the Macao-born Portuguese are a special social group different from either Portuguese or Chinese, with deep-rooted social bases and extensive social relations in Macao. Because of receiving Portuguese education and cultural influence on a long-term basis, they regard Portugal as their motherland, identify themselves as part of the Portuguese nation, and have a sense of belonging to Portugal. Meanwhile, as a result of residing in Macao for generations and having been greatly influenced by Chinese habits and customs, they are deeply imbedded in the society of Macao, and regard Macao as their homeland. Therefore, these people are a special part of the existing population in Macao.

The existence of Macao-born Portuguese is undoubtedly a result of the historical development of Macao. Over a long period of Portuguese rule of the region, the Macao-born Portuguese have mostly worked with government authorities of Macao. Because they are relatively fluent in both Portuguese and the Chinese dialect of Cantonese, they have played a major role in the functioning of the government authorities of Macao, are the social basis for Portuguese officials to govern Macao, and serve as a bridge between Portuguese officials and the broad masses of local Chinese. As they are affiliated to the regime of Macao to some extent, these people are in a position superior to that of the local Chinese politically, economically and psychologically. However, after the signing of the Sino-Portuguese Joint Declaration on the Question of Macao in 1987, the Macao-born Portuguese became greatly uneasy and worried about their career and future life, and felt greatly confused psychologically. They were worried that after Macao’s return to China on December 20, 1999, the application of the Nationality Law of China in Macao could make them lose their original Portuguese nationality and could sever their links with Portugal. So, whether the Macao-born Portuguese could maintain their Portuguese nationality became a practical issue greatly plaguing and worrying them.

Nationality is the legal identity or legal qualification of individuals as members of a particular nation, indicating their membership of that nation. With such a legal identity or legal qualification, individuals can be recognized as citizens or nationals of that nation, have established fixed legal links with that nation, can enjoy their rights defined by law of that nation, and shall assume their obligations defined by law of that nation. For many years, Macao has been a special region under Portuguese rule. During the Portuguese rule, Portugal successively extended the application of its 1959 and 1981 nationality laws in Macao. Under the 1959 nationality law of Portugal, the original acquisition of nationality is based on the principle of jus sanguinis combining with jus soli, with the emphasis on jus soli. But the 1981 nationality law of Portugual attaches equal importance to jus sanguinis and jus soli. Namely, in determining the nationality of a person, it lays emphasis on both the nationalities of his parents and his place of birth. Portugal for long regarded Macao as part of its territories and applies its nationality law in Macao, resulting in the dual citizenship of some Macao residents and making the issue of their nationalities complicated. This has not only enabled the more than 10,000 Macao-born Portuguese to naturally acquire the Portuguese nationality, but has also made the nearly 130,000 local Chinese obtain the Portuguese citizenship or get it through conversion. However, any dual citizenship on the part of Macao residents contravenes the Nationality Law of China. In consideration that the existence of dual citizenship or plural nationality will have negative impacts on individuals, the nation and international relations, the Nationality Law of China, which adopts the principle of jus sanguinis combining with jus soli, does not recognize dual citizenship of Chinese nationals. So, the sharpest contradiction between the Chinese and Portuguese nationality laws lies in the issue of whether to recognize dual citizenship.

After its December 20, 1999 return to China, Macao will become the Macao Special Administrative Region of the People's Republic of China. This profound change and major historical transition will signify the end of the Portuguese rule of Macao, the termination of enforcement of the Portuguese nationality law in the region, and the start of enforcement of the Nationality Law of China as a national law in the Macao Special Administrative Region. However, the 1987 Sino-Portuguese Joint Declaration on the Question of Macao does not have a stipulation on the issue of nationality of Macao residents. Nor does it provide for any settlement of the contradiction of their nationalities, which was a potential problem at the time of signing the joint declaration. Instead, the Chinese and Portuguese governments expounded their respective positions on the issue by releasing memorandums separately. The memorandum issued by the Portuguese government says: "In conformity with the Portuguese legislation, the inhabitants in Macao, who, having Portuguese citizenship, are holders of a Portuguese passport on December 19, 1999 may continue to use it after this date. No person may acquire Portuguese citizenship as from December 20, 1999 by virtue of his or her connection with Macao." The memorandum issued by the Chinese government states: "The inhabitants in Macao who come under the provisions of the Nationality Law of the People's Republic of China, whether they are holders of the Portuguese travel or identity documents or not, have Chinese citizenship. Taking account of the historical background of Macao and its realities, the competent authorities of the Government of the People's Republic of China will permit Chinese nationals in Macao previously holding Portuguese travel documents to continue to use these documents for travelling to other states and regions after the establishment of the Macao Special Administrative Region. The above-mentioned Chinese nationals will not be entitled to Portuguese consular protection in the Macao Special Administrative Region and other parts of the People's Republic of China." Obviously, the Chinese memorandum actually does not mean to alter the relevant stipulation of the Nationality Law of China. Meanwhile, the Portuguese side also insists that the Macao residents who have obtained Portuguese passports in accordance with the Portuguese nationality law have the Portuguese citizenship and that their passports will continue to be valid after 1999.

After Macao entered the transition period, as the drafting of the Basic Law of Macao was completed successfully, and as all the work for the transition period was conducted on a thoroughgoing basis, the Macao-born Portuguese became even more concerned and worried about the issue of their nationality. According to their literal comprehension of the Nationality Law of China, they thought that the relevant provision of the Nationality Law of China would automatically be applicable to the Macao-born Portuguese and that they would have to accept a nationality that they had never considered – the Chinese nationality. At the same time, they also thought that they would lose their Portuguese nationality, which they considered as their own. Moreover, some Macao-born Portuguese thought that after losing their Portuguese nationality, even their children could not acquire the Portuguese citizenship and they would have to live in a foreign land from generation to generation. Therefore, whether the issue of nationality could be properly settled directly concerned whether the Macao-born Portuguese would stay on in Macao or leave the region. On how to settle this issue properly, Macao-born Portuguese have put forward a great number of proposals over recent years, which mainly include the following points:

    1. Part of the Macao-born Portuguese regard Portugal as their motherland, and expressed that they would only recognize the Portuguese culture and lifestyle. Although they also consider Macao as their homeland, they would never accept being regarded as Chinese, demanded that their Portuguese nationality be maintained, and did not agree to the approach of the Chinese memorandum to regard them as Chinese.
    2. Part of the Macao-born Portuguese asked the Chinese government to recognize that they had dual citizenship, and not to oblige them to accept the Chinese nationality by renouncing their Portuguese citizenship.
    3. Part of the Macao-born Portuguese gave tacit consent to the existing arrangements of the Chinese memorandum to the Sino-Portuguese Joint Declaration for such issues as nationality, travel documents and consular protection. They held that as the Chinese side had not put forward further proposals on limiting the vested rights of the parties concerned (such as the continued acquisition by descendents of the Portuguese nationality because of kinsfolk relations and travel conveniences), such arrangements would not cause active international conflicts and problems in jurisdiction, and were in accordance with the provisions of the Basic Law of Macao on the rights of residents, and that it was realistic and feasible to make the relevant differences ambiguous.
    4. A considerable part of the Macao-born Portuguese hoped and requested that the Chinese government allow them to determine their nationality by choosing either the Chinese or the Portuguese citizenship of their own accord.

The attitude of the Macao-born Portuguese toward the issue of their nationality stems from their national sentiment, and also comes as a result of their difficulty in adapting to the great social change facing them. So, they put forward complicated proposals on the issue, which sometimes contravene one another. How to properly settle the issue of nationality of the Macao-born Portuguese has been a major subject to which the Chinese side has attached great importance and which has been studied by the Chinese side on a deep-going basis. On many different occasions, the Chinese side has stated that it would take a generous and flexible approach for settling this issue.

In reality, any issue of nationality is not only a serious legal issue, whose settlement should be in accordance with law of the State concerned, but is also a sensitive political issue. Such an issue should be settled in accordance with the status quo of the place of law enforcement and in implementation of relevant policies of the State. Besides, the application of law in settling such an issue should be in consistence and in coordination with relevant policies of the State. Over recent years, China and Portugal held many rounds of consultations at the level of the Sino-Portuguese Joint Liaison Group on settling the issue of nationality of part of the Macao residents. However, because the Portuguese side insisted that the 130,000 local Chinese holding Portuguese passports, particularly those who had received Portuguese education, have the right to choose their nationality, the two sides failed to reach consensus on the issue in the many rounds of consultations.

After the National People’s Congress (NPC) – China’s top legislature – established the Preparatory Committee of the Macao Special Administrative Region in May 1998, the Legal Affairs Group under the Preparatory Committee was assigned a major task – to study the practical enforcement of the Nationality Law of China in the Macao Special Administrative Region and to propose legislative interpretation of the law concerning its enforcement in the region. So, the Legal Affairs Group of the Preparatory Committee convened three sessions consecutively since September 1998, to focus its discussions on the outstanding issue of nationality of Macao residents. In seeking a solution to the issue, the members of the group reached a common understanding that the following principles should be taken as the guidelines:

    1. The spirit of the Sino-Portuguese Joint Declaration must be followed. Any solution to the issue of nationality of Macao residents should be in accordance with the statement of the Chinese government in the memorandum on the issue of nationality of Macao residents, and should also be in compliance of the principles and provisions of the Nationality Law of China.
    2. In light of the history and status quo of Macao, flexible legal instruments on the issue should be formulated. Such legal instruments should not only be in the interest of maintaining the consistency of State law, but also be in accordance with the specific conditions in Macao.
    3. Any solution to the issue should be conducive to maintaining social stability, reducing the social backlash, maintaining the status quo of Macao as much as possible, and maintaining the original identity of Macao residents.

After determining the principles for settling the issue of nationality of Macao-born Portuguese, the Legal Affairs Committee of the Preparatory Committee, through repeated discussions and studies, succeeded in putting forward a draft proposal that the Standing Committee of the NPC make legislative interpretation of the Nationality Law of China concerning specific issues to its enforcement in the Macao Special Administrative Region. In its 4th plenary session held on November 7, 1998, the Preparatory Committee adopted this proposal. On December 29, 1998, the Standing Committee of the 9th NPC, in its 6th meeting held in Beijing, adopted the legislative interpretation of the Nationality Law of China concerning several issues to its enforcement in the Macao Special Administrative Region. This legislative interpretation says that, in accordance with Article 18 and Annex III of the Basic Law of the Macao Special Administrative Region of the People's Republic of China, the Nationality Law of the People's Republic of China shall be applicable in the Macao Special Administrative Region as of December 20, 1999. In consideration of the history and status quo of Macao, the legislative interpretation provides for five stipulations on the enforcement of the Nationality Law of China in the Macao Special Administrative Region. Two of these five stipulations are on the settlement of the issue of nationality of the local Chinese residents of Macao holding Portuguese travel documents and the Macao-born Portuguese of both Portuguese and Chinese extraction:

(1) For all Macao residents of Chinese extraction who were born in the Chinese territory, including Macao, and for all other residents in the region who are of the Chinese nationality in accordance with the relevant requirement of the Nationality Law of China, they shall be Chinese citizens regardless of whether they hold Portuguese travel documents or identify papers.

For residents of the Macao Special Administrative Region of both Chinese and Portuguese extraction, they are free to choose the Chinese or Portuguese citizenship according to their own will. Once they have chosen the citizenship of one country, they shall not have the citizenship of the other country. For residents of the Macao Special Administrative Region defined in the above, they shall enjoy the rights set forth in the Basic Law of the Macao Special Administrative Region before making a choice of their nationality, except the rights restricted by their nationality.

(2) For Chinese residents in the Macao Special Administrative Region holding Portuguese travel documents, they can continue to use such documents for travel to other countries and regions after the establishment of the Macao Special Administrative Region. However, they shall not enjoy Portuguese consular protection in the Macao Special Administrative Region and other parts of the People's Republic of China because of holding such documents.

These two stipulations of the legislative interpretation have very clearly spelt out a solution to the issue of nationality of the local Chinese residents of Macao holding Portuguese travel documents and the Macao-born Portuguese of both Chinese and Portuguese extraction. Under these stipulations, as the former are all Chinese citizens, they can continue to hold and use Portuguese travel documents for travel to other countries and regions after the establishment of the Macao Special Administrative Region, but they will not have the right to enjoy Portuguese consular protection in the Macao Special Administrative Region and other parts of China. Also under these stipulations, the latter are free to choose the Chinese or Portuguese citizenship according to their own will, and a tacit consent has actually been given to the original Portuguese nationality that they have before making a choice of the Chinese or Portuguese citizenship.

Since its proclamation in December 1998, this legislative interpretation has been well received by the Macao-born Portuguese, who are generally of the view that the legislative interpretation is in full consideration of the history and status quo of Macao, that it is very generous and flexible, that it has relatively properly settled a problem left over from history, that it is in consideration of the national sentiment of the Macao-born Portuguese, and that it will be conducive to the peaceful transition of Macao and the region’s long-term stability and development. Hence, the issue of nationality, which plagued the Macao-born Portuguese for long, has been successfully and properly settled. Now, Macao-born Portuguese can feel relieved in staying on in Macao, and continue to make their contributions to the future development of the region.