Kapok: As little as possible

This is rather unfortunate timing. On the one hand, the project of law on Labour Unions proposed by José Pereira Coutinho gets defeated during the October 27th plenary session of the Legislative Assembly — the 9th rejection! And on the other hand, the ongoing public consultation regarding a (very) partial amendment of the Labour Relations Law and the introduction of a legal framework defining part-time employment provides a caricatural demonstration of what is wrong with participative processes, especially when designed and acted upon with an exclusively bureaucratic mindset — initiators are to be blamed, not the ill-fated civil servants asked to deliver under ubiquitous constraints.

As far as the project of law on unions is concerned, the rejection of such legislation is not only counter to the Macao Basic Law (art. 27) and the many international conventions to which Macao is a signatory — including the 1948 ILO Convention concerning Freedom of Association and Protection of the Right to Organize — but also against commonly admitted and well-established “good practices” concerning work-related disputes and their resolution. With the passing of time such a dismissive attitude borders on illegality. If Korea, Singapore, Taiwan, Hong Kong and even the People’s Republic of China can do it, why not Macao?

In the previous legislature, Fong Chi Keong presented self-serving tautologies: the defeat of such a bill on so many occasions simply demonstrated that there was no need for it and that indeed Macao society was so “harmonious” that the passing of such a law could ultimately only help stir trouble (!). This time, only Vong In Fai took the stand — Ma Chi Seng having run out of arguments thanks to the economic recovery — to brush off the bill for its lack of preparatory consultation with relevant governmental departments. Mr Vong, just like most indirectly-elected legislators, would easily forgo his right (and duty) to initiate law-making — in contravention of article 75 of the Basic Law. And yet, what is really troubling is not the fact that the bill was defeated by 15 votes against 12, but that 10 out of 14 directly elected legislators voted in favour whereas all seven legislators appointed by the Chief Executive voted against: a dismissal in first reading not only indicates a refusal to debate, but also a constant denial of the legislators’ right to introduce a bill, and a possible breach of the constitution. But then, if you start giving unions legal status, you soon have to regulate political parties and then in no time conditions for competition flourish and thus accountability takes root: who would want that?

It is very hard not to look at the consultation as a missed opportunity. Regarding part-time work, there is not much to say: a maximum of 72 hours over a period of four weeks would fall under the “short part-time” category as defined by the ILO, and then part-time is merely a way to remove already very limited protection(s) offered by the Labour Relations Law — so it boils down to a “race to the bottom”. Then, regarding the creation of paternity leave and the extension of maternity leave — a farcical addition of 14 days unpaid leave on top of the existing 56 days paid leave — if the consultation document does mention Hong Kong, China, Taiwan, Singapore and even Portugal as references, it utterly fails to allude to the comprehensive ILO report on “Maternity and paternity at work — Law and practice across the world” published in 2014. Convention No. 183 of the ILO “mandates a minimum [maternity] leave period of 14 weeks” with a marked attention to raise that period “to at least 18 weeks”!

With this new law, Macao falls in the same category as Saudi Arabia, Jordan or Kuwait. So much for being progressive! 

Published in Macau Daily Times on November 10th 2017

Kapok: The missing links

The results of the public consultation pertaining to the “Macao Tourism Industry Development Master Plan”, conducted from May to July 2016, have just been released. Although their full integration into the final draft of the overall plan should not be known until mid-2017 (phase 3!), they make for an interesting read (a long one too: 843 pages!): everybody who says the contrary is a liar! From what I have read in the press, my feeling is that these 1,185 opinions collected over two months have been grossly underreported by the press. Laziness? Cynicism? Contempt? A bit of all three?

As has been noted before in this column, public consultations have become the alpha and omega of non-democratic governance, which is trying somehow to pay lip service to the concepts of engagement on the one hand, and accountability on the other. The bottom line is to provide an occasion for the people — the residents more than the citizens — to have a say, voice their concerns and make suggestions. It is of course extremely positive, as it implies a form of participatory outlook aiming at bonding the community together and avoiding the usual symptoms of disenfranchisement. People can blame themselves if they don’t seize that opportunity, and the government is somehow forced to act with added transparency and make room for more varied interests. Convenient, for sure.

Of course, the level of inclusion of opinions expressed by residents is discretionary and entirely up to the powers that be. In terms of decision-making, consultation corresponds to the very first and short steps of a long and tedious staircase. In some instances, the hope is that nobody will react and thus the consultation process amounts to little more than pretence and formality. In Macao, the number of consultations has inflated tremendously in the past few years, especially since their due processes were revised in 2011 — 86 are marked as completed and accessible on the government’s website. The executive intent has become even clearer since the website gathering these PR campaigns started to include at its bottom the “advisory bodies” (47 such committees) placed under the authority of the Chief Executive (CE) and his five secretaries: everybody is entitled to an opinion, but how and why it makes its way into a public policy is entirely up to people who make the actual decisions — people who are unfortunately not elected. Yet sometimes these consultations end up blocking a project too blatantly associated with the usual enduring vested interests of family businesses in Macao. Miracles do happen.

Reviewing the almost 1,200 opinions collected by the Macao Tourism Office would go beyond the scope of this column, although it is worth noting that the report encloses extremely stimulating remarks by numerous residents, among them (a few) academics and business stakeholders — including, notably, one of the licensed casinos. Doubts are cast over ways to achieve the four goals, but suggestions are always made — and the original document released for consultation was generous in pointing out the numerous challenges ahead. For me, the main issue resides in the lack of clearly delineated convergence between the master plan and the five-year plan announced by the CE last September. It is not too late!

There are, however, two flagrant absences in this report — quite unacceptable ones indeed. The first one concerns academic institutions, which are only present through (fortunately very stimulating) individual contributions. Policy recommendations have to be assessed by academia; otherwise, institutions are defaulting in their duty to socially engage with the community, and are thus malfunctioning. The other one has to do with the outright absence of the Portuguese community and especially the Portuguese newspapers: out of almost 600 pages of raw opinions republished in Section Five, not ONE (!) is written in Portuguese, except for two pages of an interview with Samuel Tong reprinted from Hoje Macau! Being snubbed for lack of relevance means that you have to proactively assert yourself and participate in public debate: otherwise, what is the use of having three Portuguese dailies read by fewer than 500 people? Folklore?

Published in Macau Daily Times, January 13th, 2017.

Kapok: The Plumber and the Architect(s)

In the latest stages of the protracted public consultation regarding the amendment of the electoral law for the Legislative Assembly — remember, we have elections next year — the voice of the people has finally been heard. Over the noise of the complacent faithful, the message is loud and clear: there should be more seats, and of the kind that is directly elected by the people — a sovereign body of citizens. Ironically, it is the multitude that is proving to be the architects, with a design for the future in mind, a better one for all. In contrast, the powers that be are acting like plumbers, of a fix-it Felix sort who would have lost his enchanting capabilities.
During the first consultative meetings, only members of the legislature and supporters of well-established associations and corporations were asked to participate, and of course, apart from subdued outbursts by a few isolated participants, the sessions followed to the letter a very predictable pre-­written script.
Pro-establishment figures of the society insisted on minor adjustments or additional restrictions, with the occasional decorous pro-business “trouble-maker” making a “bold” suggestion: why not have additional “functional constituencies” now that the society has grown in size and complexity, proposed Angela Leong, a record-holder as the most absent directly-elected lawmaker.
Never mind that in Hong Kong many people are now challenging the validity of “functional constituencies” for their uneven size and composition, denouncing these so-called representatives who hold multiple votes, sometimes in multiple constituencies, and condemning the fact that 16 out of 35 candidates in these constituencies ran uncontested in 2012, thus casting a shadow on the concept of electoral competition.
In Macao, a quick look at the registered associations supposed to “indirectly elect” legislators representing only five “sectors of activity” reveals that most of them are intertwined, with such-and-such legislator, or even member of the executive council, being on the board of dozens of these “collective personalities” with the right to vote. Ultimately, in Macao, none of these “indirectly elected” legislators is ever contested in his constituency: they systemically run unopposed!  What is an election without a choice? What is the meaning of a contest without candidates to opt for?
And then, when pro-democratic and independent legislators suggest that there is a need for more directly elected seats, why is the idea being rejected on the ground that “it is not adequate to go forward with reform too quickly in [Macao’s] political development”? Why is it objected by legislators who are themselves all appointed by the Chief Executive?
Article 68 of the Macao Basic Law indicates that “the majority of [the legislature’s] members shall be elected”: we have 33 members, 14 are returned by universal suffrage whereas 12 run uncontested and 7 are still appointed (something that existed only in colonial Hong Kong), so we are either missing six additional directly-elected legislators or the electoral law should be in for a far deeper revamping than the four-fold limited adjustments presented to us.
The claim is that these highly sophisticated fine-tunings of our electoral rules are based on reports and observations made by different governmental agencies since the last time we held legislative elections in 2013. Is that really so?
Monitoring expenses and capping them: yes, correct. Strengthening the supervision of electoral activities and updating the rules for candidacy: yes, indeed, but not necessarily the way it is proposed. Defining more clearly what is meant by promotional efforts associated with an electoral campaign and regulating such promotional efforts: sure, but certainly not by completely letting go with the opening of a pre-campaign period during the six months prior to the official campaign.
On the banning imposed to elected members of the Legislative Assembly to hold any political position in a foreign country, well, this is only logical, and I find it absolutely proper, especially because it could be far more stringent and indeed impose a strict Chinese nationality upon all legislators—an extra step not many would rejoice about, I am sure, in the present legislature.

Published in Macau Daily Times, June 3rd 2016

Kapok: Accountable Responsility

For any political leader, probing the hearts and minds of constituents is of utmost importance, whatever the political regime. In a democratic setting, elected officials have learned to engage at every turn with the people they derive their power from. Gone are the days when one would regenerate his or her “representative” status only at election time: one’s presence on Twitter is imperative, and not only to cunningly (often perilously) grab the headlines, but to foster public participation and nurture one’s political course of action via the many corrective bits that constitute an audience’s reaction, measured in levels of re-tweeting, liking and commenting. The power and beauty of social media do not only spring from their instantaneity and their reach but from the reactivity and interactivity. They are indeed a much more sophisticated channel than basic opinion polls that verge on popularity contests. Social media allow for participative democracy to cut across a mere slogan, even though they cannot and will never replace the act of voting, which is the actual exercise of power by the citizenry, and thus of accountability.
In an authoritarian context, regardless of the oligarchic or corporatist manoeuvrability, citizens are also being called upon. The lesson retained from the twentieth century is that no form of dictatorship can aspire to longevity if it does not somehow live up to the promise of a “rule for the people” – the greater good of the community remaining a distinctive finality. Thus demands from the society have to be accommodated, albeit with very stringent constraints. In Iran, many believe that the “Islamic Republic” serves as a “façade” for religious interests to clinch power while allowing for civil society to be placated. Quite tellingly, social media were at one point used as reversed illiberal weapons to track down activists challenging the regime, and today still, most Iranian netizens are denied access to Twitter while President Hassan Rouhani prides himself on having 378,000 followers (last tweet on August 9th) while even Supreme Leader, Ayatollah Seyed Ali Khamenei, is followed by less than 150,000 people. In the People’s Republic of China, many policies are opened to so-called “public consultations” and clearly there have been some interesting attempts at (very) local democracy. The regime today hammers that “democracy” is indeed one of the twelve core socialist values – along with freedom. But here again, engagement of and with the people follows very strict rules, as more than 250 human rights lawyers have been learning the hard way during the summer. Moreover, if China is home to the biggest Internet population on the planet – 668 million – and allows for citizens to express their concerns and participate in the public sphere, this can only ensue in a narrowly enclosed perimeter: Xinhua ultimately rules and the new cybersecurity law currently “under discussion” will fully “legalize” the usual practice of suspension of service and denial of access as soon as there is a hint of threat to “social order”. Thus, Virtual Private Networks that have been heavily targeted since January 2015 could be deemed “illegal”.
Public consultations and the use of social media can be characterized as a form of responsibility sharing. For a leader today, the source of political legitimacy matters less than the impression (at least) that he is ruling for the benefit of the whole community. Shouldering off part of the responsibility thus really comes handy. The ever-increasing use of “public consultations” in Macao is a good reminder that despite our lack of democratic institutions, the commitment to liberal values enshrined in the Basic Law together with their actual practice can be put to very potent use when it comes to accountability. Nobody will be voted out (or weep and resign), but then prospective public policies are openly discussed and challenged, omissions and shortcomings alike: the meticulous account provided by some media – the public meetings transcripts by All About Macao in particular – regarding the present public consultation on new reclamation areas is in that respect to be commended. Irrefutably, the quality of our future rests upon our freedom of expression.

Published in Macau Daily Times on August 21st 2015