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Relatórios Apresentados
por Portugal aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
Direitos Humanos
Summary record of the 1794th
Meeting (Macau) : China. 23/02/2000. CCPR/C/SR.1794. (Summary Record)
HUMAN RIGHTS COMMITTEE, Sixty-seventh session
SUMMARY RECORD OF THE 1794th MEETING, Held
at the Palais des Nations, Geneva, on Monday, 25 October 1999, at
3 p.m.
Chairperson: Ms. MEDINA QUIROGA
later: Ms. EVATT
CONTENTS: CONSIDERATION OF REPORTS SUBMITTED
BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT (continued)
Fourth periodic report of Portugal (Macau)
The meeting was called to order at 3.05 p.m.
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 40 OF THE COVENANT (agenda item 6) (continued)
Fourth periodic report of Portugal (Macau) (CCPR/C/POR/99/4;
CCPR/C/67/L/POR(MAC)/1)
1. Mr. Costa Oliveira, Mr. Jacinto, Mr. Faro Ramos, Mr. Weng Chon,
Ms. Albuquerque Ferreira, Ms. Tou Wai Fong, Mr. Marrecas Ferreira,
Mr. dos Santos and Mr. Cabral Taipa (Portugal) took places at the
Committee table.
2. The CHAIRPERSON welcomed the Portuguese delegation and invited
it to introduce the fourth periodic report of Portugal (Macau).
3. Mr. COSTA OLIVEIRA (Portugal) said that the report on Macau,
which was separate from the report to be submitted by the State
party concerning Portugal itself, was the last before the transition
period ended, on 19 December 1999, and it reviewed all issues relating
to the observance of human rights in Macau.
4. Portugal had put in place a legal system in Macau that guaranteed
most of the public liberties enshrined in the Portuguese Constitution,
which was one of the constitutions most protective of such liberties
in the world. Underlying that system was the Macau Organic Statute,
which served as a constitution adopted specially for the Territory,
and there was also a mechanism for systematic interpretation of
the Organic Statute. The very protective human rights provisions
of that Statute were to serve as guidelines for the implementation
of the laws and other instruments relating to public liberties.
At the end of the transition period, the Constitution of Portugal
would cease to apply to Macau. Some provisions of the Organic Statute
of the Macau Special Administrative Region were markedly influenced
by those of the Constitution of Portugal; for example, article 25,
which prohibited discrimination, clearly derived from article 13
of the Portuguese Constitution.
5. Continuity after the hand over could not be guaranteed, however,
for obvious political reasons: sovereignty over the Territory would
rest with the People's Republic of China as from 19 December 1999.
The Organic Statute was certainly somewhat less protective than
the regime currently in force, but Portugal had sought to ensure
that any reduction in the protection afforded would be minimal.
It had therefore endeavoured to fill gaps in the law by replacing
the constitutional protection of human rights with protection based
on international law. In that connection, Portugal had begun talks
with the People's Republic of China in 1991 with a view to the application
of the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights
to Macau. In that regard, it should be pointed out that unlike in
Hong Kong, where the principle of the continuity of the legal system
had not raised any particular problem, it had been necessary in
Macau to rebuild the legal system, often starting from its very
foundations, in order to ensure continuity. Thus, the application
of 85 international treaties had been extended to Macau, although
Portugal would have liked to make a further 115 applicable to the
territory. As a result of the cooperation between Portugal and the
People's Republic of China, it could be said that public liberties
would be no less well protected in Macau than they were in Hong
Kong.
6. In the monist legal system established in Macau, treaty-based
public international law took precedence over domestic law. The
domestic legal system had itself needed to be rebuilt. The legal
rules in force in Macau were very influenced by Portuguese law,
of which the principal source was statute law. It had thus been
necessary to adapt the five main Portuguese codes (Civil Code, Civil
Procedure Code, Commercial Code, Criminal Code and Criminal Procedure
Code) to the actual situation in Macau. In some areas, that task
was being pursued and would not be completed by 19 December 1999.
7. Portugal had sought to institute a tradition of regular reporting
on implementation of the Covenants to the respective treaty bodies.
The work of gathering information had been undertaken in consultation
with local non-governmental organizations. Unfortunately, NGOs were
not as active in Macau as in Hong Kong; their input was rather small
but it should increase with the growing importance of civil society.
8. He would now turn to the questions included in the list of issues
(CCPR/C/67/L/POR(MAC)/1, which read as follows:
Obligation to report and the
Sino-Portuguese Joint Declaration
1. What arrangements are in place concerning
the submission of reports under article 40 of the Covenant by the
People's Republic of China for the Macau Special Administrative
Region after 19 December 1999?
2. What guarantees exist to ensure the continued
application of the Covenant in the Macau Special Administrative
Region, apart from article 40 of the Basic Law, which stipulates
that the provisions of the Covenant shall continue in force?
3. What arrangements exist for the application
of the Optional Protocol in the Macau Special Administrative Region?
Constitutional and legal framework
within which the Covenant is implemented (art. 2)
4. What impact does Decree-Law No. 55/95/M of
31 October 1995 (para. 4(g) of report), relating to the general
regime for entry, length of stay and establishment of residence,
have on the reservation which the State party maintains with regard
to article 12 (4) of the Covenant?
5. What influence does the amendment to the
electoral registration regime and the electoral system (Act No.
1/96/M of 4 March 1996) have on the reservation concerning article
25(b) of the Covenant (para. 4(j) of the report)?
6. Please elaborate on legislation concerning
the judicial system (paras. 4(d), (o), (p) and (r) of the report).
7. Please provide information on efforts to introduce the Chinese
language in the courts, especially in court documents and decisions.
Have special laws been enacted?
Equality of rights for men and
women, and non-discrimination (arts. 3 and 8)
8. What progress has been made in combating the traffic in and the
sexual exploitation of women (paras. 6-16 of the report)?
9. Please provide information on education and
training on the Covenant given to government officials, schoolteachers,
judges, lawyers and police officers.
10. Please provide information on violence against
women, including rape and domestic violence. Are there any programmes
for counselling and rehabilitation of victims?
11. What programmes exist to provide assistance to women in difficult
circumstances, and especially women from other countries who are
brought to Macau for purposes of prostitution, forced labour or
slavery?
Right to life and prevention
of torture (arts. 6 and 7)
12. Do guarantees exist to prevent the transfer
to another jurisdiction in China of Macau residents accused of crimes
for which the death penalty or a penalty more severe than in Macau
may be imposed?
13. What guarantees against torture and cruel
treatment exist or are envisaged, which are not currently contained
in the Basic Law and criminal codes of Macau. Please comment on
the efforts of the Joint Liaison Group in this respect.
Right to liberty and security of
the person (art. 9)
14. During the discussion on the third report, the State party informed
the Committee of an agreement concluded with the People's Republic
of China concerning the extradition of criminals to third countries.
Please elaborate.
Right to freedom of movement
(art. 12)
15. What protection concerning nationality exists
or is envisaged for residents of Macau, bearing in mind that the
People's Republic of China does not recognize the principle of dual
nationality? Please explain the legislation on entry into and departure
from the Territory of Macau by persons holding Portuguese passports.
Independence of the judiciary (art.
14)
16. How is the independence of the judiciary
guaranteed, in particular with regard to the appointment of judges
and the Government Attorney? Has the Joint Liaison Group concluded
an agreement on this matter?
Freedom of expression (art. 19)
17. Please provide information on the composition
and competence of the Press Council in Macau. Please comment on
its Statute (CCPR/C/SR.1577, para. 45).
18. Article 23 of the Basic Law obliges the
Special Administrative Region to enforce laws which characterize
any act of subversion, secession or theft of State secrets as a
criminal offence. Please explain how the details of those laws can
be reconciled with article 19 of the Covenant.
Freedom of association (art.
22)
19. Please explain the planned programmes for improving working
conditions, with particular reference to paragraph 31 of the report,
and explain how far progress has been made in this respect. To what
extent does the existing or proposed legislation comply with article
22(1) of the Covenant?
Prohibition of discrimination (art.
26)
20. To what extent do the social security programmes
apply to non-resident workers in Macau?
Dissemination of information
about the Covenant (art. 2)
21. Please indicate what steps are being taken
to disseminate information on the submission of Portugal's fourth
periodic report on Macau to the Human Rights Committee, on its consideration
by the Committee, and the Committee's concluding observations on
Portugal's third periodic report on Macau.
9. With regard to the first two questions, concerning
article 40 of the Covenant and the continued application of the
Covenant in Macau after the Territory's reversion to China, the
Sino-Portuguese Joint Declaration did not mention the Covenant.
No provision had been made for the continued application of the
Covenant in the Territory, as had been the case in Hong Kong, where
that was specified in article 23 of the Joint Declaration. The Macau
Basic Law likewise contained no provision to that end. For the purpose
of guaranteeing continuity, Portugal had therefore begun talks on
the matter with the People's Republic of China, which had agreed
to include the issue in the agenda. The negotiations had been based
on the principle of symmetry between the system put in place in
Hong Kong and the one that was to be established in Macau. They
had led to a proposal, approved by the Portuguese Parliament, on
extending the provisions of the Covenant to Macau subject to four
restrictions - and not 14 as in the case of Hong Kong - relating
to articles 4, 12, 13 and 25 (d). No other reservation applied,
including with respect of article 14. There was therefore no reason
to fear that obligations under the Covenant would not be observed.
As to arrangements for the application of the Optional Protocol
in the Macau Special Administrative Region, the negotiations had
focussed only on the two Covenants and the question of the Optional
Protocol had not, therefore, been addressed.
10. Regarding the impact of Decree-Law No. 55/95/M
on the State party's reservation to article 12, paragraph 4, of
the Covenant, the Decree-Law, had modified the regime for entry,
length of stay and establishment of residence in Macau with a view
to enhancing the right of residence for foreign investors and skilled
persons in Macau, but it had in no way changed the applicable general
rules. Thus, the principle enshrined in article 12, paragraph 4,
of the Covenant ("no one shall be arbitrarily deprived of the
right to enter his own country") continued to apply: any person
currently residing in Macau could return to it. However, during
the negotiations with the People's Republic of China on the future
status of Macau, some local experts had felt that the word "country"
might cause a problem. In order to remove any ambiguity, therefore,
a reservation had been made to the effect that nationals of the
country that would exercise sovereignty over the Territory would
not be able to invoke that Covenant provision in order to enter
Macau freely. The other provisions governing entry, length of stay
and establishment of residence in Macau remained unchanged.
11. Concerning the influence of the amendment to the electoral registration
regime and the electoral system on the reservation to article 25
(b) of the Covenant, he indicated that some simple amendments had
been made to the electoral regime, but the structure of the system
remained unchanged. The restriction concerning article 25 (b) of
the Covenant, under which every citizen had the right to vote and
to be elected, was designed solely to make it clear that in extending
the Covenant to Macau, Portugal had not had any intention of changing
the system for electing or appointing members of the Macau Legislative
Assembly.
12. With regard to legislation concerning the judicial system and
the independence of the judiciary it should be noted that until
1991 there had been only first-level courts in Macau, which had
been treated as a subdivision of the Portuguese judicial system.
Some cases, in particular those dealing with criminal or constitutional
matters, had been decided in last resort in Portugal. However, since
the Sino-Portuguese Joint Declaration had provided for the creation
of a court of final appeal in Macau, a reform in 1991 had provisionally
set up the High Court of Justice as an appeal court with complete
autonomy. It had then been decided that from 1 June 1999 Macau's
courts would have complete jurisdiction over local cases. That reform
should, therefore, give Macau complete jurisdictional autonomy,
since criminal, constitutional and administrative cases would no
longer be decided in Portugal. Although the negotiations on that
point had not as yet been concluded, the fundamental principles
of the freedom of the judiciary had nevertheless been enshrined
in an agreement signed between Portugal and the People's Republic
of China in March 1998. That agreement, which traced the broad features
of Macau's judicial system, guaranteed that the provisions of article
14 of the Covenant would continue to apply. Thus, fundamental principles
such as the independence of the courts and magistrates, the non-removability
of judges and their immunity in the exercise of judicial functions,
the prohibition of a finding of non liquet, and the independence
and autonomy of the Puthe Prosecutors Office would continue to apply.
However, the insufficient number of local jurists posed a problem
in Macau. Portugal had created a law faculty in Macau at the very
start of the transition period, making it possible to train 70 local
professionals in recent years. Thus, out of 54 judges and prosecutors
currently serving in Macau, 33 were local. Nevertheless, that number
was still too low.
13. Concerning the use of Chinese in the courts and especially in
court documents and decisions (question 7), numerous arrangements
had been made over the years to guarantee firstly that all the forms
used were bilingual, then to make interpretation or translation
obligatory for certain oral proceedings or decisions, and ultimately
to extend that requirement to all decisions and to all final hearings.
Obviously, how far Chinese was used in the courts was closely connected
with the level of localization of judges and lawyers, but in a few
months the subject of concern would no longer be the non-use of
Chinese but the non-use of Portuguese in some court cases.
14. Mr. Cheong Weng CHON (Portugal) said that all documents –
forms, notices and other papers - used in the Macau courts were
bilingual and the necessary materials for a hearing had to be translated
into Chinese. With regard to the judgement rendered, if some parties
to the proceedings wished to have a Chinese version, the court had
to provide a translation. Macau's courts now had to arrange for
simultaneous interpretation in hearings where necessary. However,
the 16 translators and interpreters currently working for the courts
were not enough. More would be needed, but it was difficult and
expensive to recruit qualified translators and interpreters.
15. Mr. COSTA OLIVEIRA (Portugal) added that the main concern was
not to legislate for such purposes but to apply the existing rules
and develop the use of both languages with a limited budget. Given
the situation at the outset, however, the use of the two languages
in the courts could be considered to be quite satisfactory.
16. He then replied to the questions included under the heading
of equality of rights for men and women, and non-discrimination,
taking questions 8 and 11 together. The authorities had acted whenever
the traffic in women for purposes of exploitation or prostitution
constituted a real problem in Macau and in 1997 they had passed
a new law designed to combat the organized criminal activities that
in recent years had become notorious in Macau. One of the provisions
of the law imposed heavier penalties for organized crime, and other
provisions had been included concerning the traffic in women and
their exploitation for purposes of prostitution, acts which now
constituted offences incurring heavy penalties. However, while aware
that there was some relationship between organized crime and prostitution,
the authorities had not recorded many cases of trafficking in women
for prostitution in the past year. Macau was a small city covering
just 24 square kilometres and it was a major tourist destination,
with most of the tourists coming for its gambling houses. The presence
of so many tourists encouraged prostitution and the authorities
were thus confronted with public health and hygiene problems, as
well as with certain activities related to organized crime, although
there were no significant data showing a clear link between trafficking
in women and prostitution. Prostitutes in Macau were for the most
part young girls and women who came from outside, generally driven
by poverty. Of the two cases which had been detected in 1999, the
first concerned Vietnamese girls working in Cambodia who had been
brought to Macau to work as dancers or masseuses and had been forced
to prostitute themselves. They had complained to their consulate
and, through the concerted action of the police of Viet Nam, Cambodia
and Macau, those responsible had been arrested and a request made
for their extradition. The second case concerned a Chinese woman
who had been encouraged to come to Macau to work as a domestic servant
and had then been forced into prostitution. There, too, the person
responsible had been arrested and was being prosecuted. The Macau
authorities were determined to combat trafficking in women, but
had no reason to believe that it was a major problem. That could
be judged from the available figures on cases of trafficking in
women for purposes of commercial exploitation: there had been 5
recorded cases in 1997, 6 in 1998 and 15 in 1999. The authorities
were endeavouring to remedy the situation, in accordance with their
international obligations and with the new regulations instituted
by the law of 1997. With regard to programmes to assist women in
difficult circumstances, the women concerned often came from abroad
for economic reasons and would sometimes have their passports taken
away from them and be forced to contract loans. Those practices
ceased, however, as soon as the police were informed. There were
not many assistance programmes because women finding themselves
in difficult circumstances tended to go back to their own countries.
In the few cases involving women living in Macau, aid would be provided
by institutions attached to the Catholic Church: the women were
taken in and given temporary support until they could begin a new
life. Those institutions themselves received support from the public
authorities.
17. With regard to violence against women, including rape and domestic
violence (question 10), relevant information was supplied by the
police and by the courts, but the data were not broken down in such
a way as to answer the question exactly. Acts generally constituting
rape or sexual coercion were offences against the physical integrity
and sexual liberty of women, and there had been 18 cases in 1997,
14 in 1998 and 23 up to August 1999. With regard to domestic violence,
his delegation had not been able to obtain specific data for the
years before 1999; in the current year, 29 cases had thus far been
reported. His delegation had also been unable to obtain more information
on programmes for counselling and rehabilitation of victims and
would supply that information to the Committee as soon as it became
available.
18. With regard to education and training (question 9), there were
a significant number of human rights training programmes in Macau,
dealing in particular with public liberties. Those programmes were
intended for future judges and members of the Public Prosecutor's
Office during the year of preparation they had to undergo in a magistrates'
training centre, where they received training on the application
of a variety of human rights instruments, and not only the Covenant.
The same applied to trainee lawyers and police officers. There were
also various training activities for a wider target group, including
State officials, teachers and members of other professions. The
training was not provided in several languages and when the body
concerned was not a public body, it received State aid. The Government
of Macau had set itself the goal of improving training in human
rights for members of a number of professions, and of enhancing
the Macau population's knowledge of that area.
19. He then replied to the question on the guarantees that existed
concerning transfer to another jurisdiction in China (question 12).
The rule currently applicable in Macau on transfer to another jurisdiction
dated from 1975; it was a provision that the Constitutional Court
of Portugal had interpreted in some cases, a number of years ago,
as concerning extradition to China, but no distinction was made
regarding the origin of the extradition request and it applied whatever
country requested extradition. One of the principles enshrined in
that provision, which derived directly from article 33 of the Portuguese
Constitution, stipulated that extradition was not possible if the
person concerned was in danger of being subjected to the death penalty
or life imprisonment, or a punishment involving amputation. Extradition
could also be refused to a country that did not comply with international
standards affording guarantees of a fair trial. However, the current
provisions did not place restrictions on extradition where the person
concerned might incur a penalty more severe than in Macau for the
same crime.
20. Ms. ALBUQUERQUE FERREIRA (Portugal) replied to the questions
concerning torture and ill-treatment (para. 13 of the list of issues).
In the context of the Joint Liaison Group, it had already been agreed
with the delegation of the People's Republic of China that some
200 international conventions would apply to Macau after December
1999; they included the most important conventions and, in particular,
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the International Convention on the
Elimination of All Forms of Racial Discrimination, as well as the
Convention on the Elimination of All Forms of Discrimination against
Women and the Convention on the Prevention and Punishment of the
Crime of Genocide. About 30 international human rights instruments
would be applicable and, even though the decision was not as yet
official, her delegation could announce that China would assume
responsibility for implementation of the Covenant in Macau as from
October 1999. The other conventions would be applicable to the extent
that China was already applying them, and up to 19 December 1999
Portugal would be applying the conventions in question, bearing
in mind the reservations it had entered. It had been agreed between
Poland and China that some of the reservations made by China to
international conventions would not apply, and that was an important
factor for the autonomy of the Special Administrative Region. In
summary, all human rights would be protected not only under ordinary
law but also with reference to international standards, which took
precedence over domestic law both in the Portuguese system and in
the Chinese system. Unlike in the case of the Hong Kong Special
Administrative Region, where a statute was required to apply international
conventions or treaties, such instruments were directly applicable
in Macau. That would be the case, for example, for some International
Labour Organization conventions, in particular the Forced Labour
Convention (No. 29). In conclusion, her delegation wished to emphasize
that cooperation on the subject between China and Portugal had thus
far been excellent.
21. Mr. COSTA OLIVEIRA (Portugal) provided details of an agreement
concluded with the
People's Republic of China concerning the extradition
of criminals to third countries (question 14). The method of work
followed in the Liaison Group concerning bilateral agreements involved
holding meetings first of all between Portugal and China, on the
basis of proposals submitted by the Macau Government. Once the parties
had arrived at what was known as a "standard agreement",
the text in question would be sent to the Macau Government which
in turn transmitted it as a first proposal to the third countries
with which it was proposed to conclude a bilateral agreement on
mutual legal assistance in criminal matters. For that purpose, Macau
had generally followed the model of the various United Nations standard
agreements, except for the fact that it had divided the question
of mutual legal assistance in criminal matters into three parts,
making each the subject of a separate agreement: first, extradition,
called "surrender of fugitive offenders" in Macau; secondly,
the transfer of persons sentenced or imprisoned; and, thirdly, other
matters relating to mutual legal assistance.
22. An agreement on the transfer of sentenced persons had been formulated
and discussions were under way with six countries in that connection.
However, no agreement had been concluded on the surrender of fugitive
offenders, i.e. extradition. It should be pointed out that the agreements
in question dealt only with mutual legal assistance between Macau
and third countries, and not between Macau and a country exercising
its sovereignty over the Territory. In the case of the agreement
on sentenced persons, there had been no major divergence of views
and the United Nations model had served as the basis. In the case
of extradition, however, the principles guiding the two countries,
Portugal and China, had not enabled an agreement to be reached,
and that created many problems for the Macau authorities. When they
received an extradition request and were in favour of acceding to
it because the requesting country offered the requisite safeguards,
they were prevented from doing so by the absence of an appropriate
bilateral agreement, domestic law requiring reciprocity in the matter.
23. With regard to the right to freedom of movement, and more specifically
concerning nationality (question 15), he recognized that the question
of dual nationality was one of the most complex issues of the transition
period. It had been raised officially following the signature of
the Sino-Portuguese Joint Declaration, but it had not been possible
to reach an agreement on that occasion. The question had been raised
again several times, without success, but discussions were continuing.
As a result of the pressure brought to bear by Portugal, some results
concerning the position of the Chinese authorities had been obtained.
As it had done for Hong Kong, the Standing Committee of the National
People's Congress of China had adopted a resolution, in March 1999,
concerning the interpretation of the nationality law of the People's
Republic of China and the way in which it should be applied in the
Macau. The local authorities were guaranteed the same powers in
that regard as the Hong Kong authorities, namely important powers
concerning the interpretation and application of the nationality
law, especially for persons with dual nationality opting for the
nationality other than Chinese nationality and implicitly rejecting
the latter. The resolution adopted with respect to Macau also had
a second component – one that did not exist in the case of
Hong Kong - concerning the right of Macau inhabitants of Portuguese
descent to choose for themselves the nationality they wished to
retain: there was a written declaration of China to the effect that
such persons would not have Chinese nationality imposed on them
if they did not wish to be treated as Chinese.
24. Entry into the Territory of Macau for persons holding Portuguese
passports was not, of course, currently a problem. In the future
Macau Special Administrative Region, it was certain that Portuguese
passport holders would still be allowed to keep their passports
and use them as travel documents, as guaranteed in the Memorandum
of the People's Republic of China annexed to the Sino-Portuguese
Joint Declaration.
25. With regard to freedom of expression, some questions had been
asked concerning the composition and competence of the Macau Press
Council referred to during the consideration of the previous report
(item 17 of the list of issues). The creation of such a council
was mentioned in a 1991 law on the freedom of the press, which had
spoken of a regulatory body charged in particular with defining
the criteria for being a journalist as well as for guaranteeing
freedom of the press. The intrinsically fine idea of creating an
organ completely independent of the executive had never been realized,
however, because of opposition from the Newspaper and Media Owners
Association and the Journalists Association. The Macau Legislative
Assembly had itself addressed the issue, but without success. There
was no press council in Macau.
26. Regarding the compatibility of the laws penalizing acts of subversion,
secession or theft of State secrets with article 19 of the Covenant
(question 18), the fact was that Macau judges needed never needed
to apply the laws in question. Generally speaking, the principle
followed by the Government and the Legislative Assembly was to formulate
any provisions that would restrict the exercise of particular human
rights in the clearest and most objective manner possible, and to
limit the powers thus vested in branches of the executive. Lastly,
it should be pointed out that the Basic Law had not yet entered
into force and that its article 23 was not mentioned in the provisions
for the application of the Sino-Portuguese Joint Declaration.
27. Mr. CABRAL TAIPA (Portugal) indicated that the legislation governing
freedom of association fully conformed to article 22, paragraph
1, of the Covenant. After 19 December 1999, the right of association
would be protected under the ILO Freedom of Association and Protection
of the Right to Organize Convention (No. 87), 1948, and the ILO
Right to Organize and Collective Bargaining Convention (No. 98),
1949, which had been in force for Macau since 1964 and September
1999, respectively.
28. Mr. COSTA OLIVEIRA (Portugal) said that non-resident workers
did not enjoy as much social protection as resident workers (item
20 of the list of issues). However, the authorities were endeavouring
to improve the situation and any entity employing non-resident workers
was now obliged to take out insurance to cover them for accidents
at work or to insist that they themselves take out such insurance.
Furthermore, a bill provided for the health care protection afforded
to residents to be extended to non-resident workers. It should nevertheless
be recognized that non-resident workers often stayed in Macau for
only short periods and it would hardly make sense to grant them
all the benefits available to residents, including pensions. The
authorities also had to fear in mind the strong opposition of local
communities to extending social security programmes to non-resident
workers.
29. With regard to the dissemination of information about the Covenant
and the Committee's consideration of the reports (question 21),
Portugal's third periodic report on Macau (CCPR/C/70/Add.9) and
the Committee's concluding observations following the consideration
of that report (CCPR/C/79/Add.77) had been widely publicized in
the Territory and translated into Portuguese and Chinese. Press
conferences had been organized on the topic and, more generally,
the local media had reported on the consultations between the authorities
and non-governmental organizations and had disseminated information
about the preparation of Portugal's periodic reports concerning
Macau. The fourth periodic report (CCPR/C/POR/99/4) had not received
as much publicity as might have been desired owing to lack of time,
but there was no doubt that the local media would duly report on
its consideration by the Committee. Lastly, it should be noted that
the International Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights had
been translated into the two official languages of Macau.
30. The CHAIRPERSON thanked the delegation and invited members of
the Committee to ask their supplementary questions.
31. Mr. ANDO said that the protection of human rights was problematical
because, while the Portuguese Constitution applied in theory to
Macau, Portugal was actually only administering the Territory, which
was part of the People's Republic of China and placed under its
sovereignty. That particular status obviously entailed some gaps
in the protection of human rights. Regarding the future of Macau,
he wondered whether the authorities of the People's Republic of
China would take account of the many changes that had occurred in
the Territory since 1987. In particular, would an international
instrument to which Portugal was a party, but to which the People's
Republic of China was not, remain in force for Macau after 19 December
1999?
32. Concerning the electoral system, he understood that the question
had not thus far been taken up with the authorities of the People's
Republic of China. Was that understanding correct? He would like
to know whether the current system would be retained after 19 December
1999 and, in particular, whether the inhabitants of Macau would
continue to elect their own representatives.
33. With regard to freedom of assembly and demonstration, he would
appreciate more information about the impact of Law 7/96/M (para.
4 (u) of the report) and Decree-Law 357/93 (para. 4 (y)). In particular,
he would like to know what would become of the Chinese officials
employed by the Administration of the Territory of Macau after 19
December 1999. He also requested information about the codification
and development of the principles relating to workers' rights, as
mentioned at the end of paragraph 31 of the report.
34. Concerning the application of article 18 of the Covenant, he
cited paragraph 27 of the report and asked what would happen in
Macau after 19 December to the members of a certain organization
regarded as a religion and persecuted by the authorities of the
People's Republic of China on the mainland.
35. Ms. Evatt took the Chair.
36. Mr. YALDEN said that he was concerned about the question of
respect for the principle of non-discrimination in Macau. He recalled
that, in its concluding observations after the consideration of
Portugal's third periodic report on Macau (CCPR/C/70/Add.9; CCPR/C/79/Add.77),
the Committee had expressed concern at the de facto inequalities
with regard to the situation of women and their remuneration, and
would like to know whether any progress had been made in that area
and what steps the authorities had taken for that purpose.
37. Regarding the use of the Chinese language, a matter that had
been raised in paragraphs 11 and 17 of the Committee's concluding
observations (CCPR/C/79/Add.77), the delegation had indicated that
Chinese had been employed in the courts in the context of the localization
of the judicial system. What was the situation in the public sector
as a whole, including the civil service?
38. He would like more information about the application of article
25 of the Covenant, and particularly on the implementation of the
procedure established under Law 5/94/M to govern and protect the
right of petition. It would be useful to know whether the procedure
in question provided for compensation, and how many petitions, representations,
protests and complaints had been submitted to the authorities and
with what outcome. Lastly, he requested information about the actual
working of the various commissions established with a view to the
exercise of the right of petition.
39. Lord COLVILLE noted that the situation in Macau had changed
greatly since the submission of Portugal's third periodic report
on the Territory (CCPR/C/70/Add.9). He nevertheless wondered about
the nature and effects of the legislative provisions described in
the paragraphs of the fourth periodic report relating to the application
of article 8 of the Covenant. It was his understanding that, as
part of efforts to combat organized crime, the authorities had defined
the acts of promoting, founding or supporting a secret association
or society as offences. The definition of a secret association or
society was reproduced in paragraph 6 of the report. Thus, what
was punishable by law was apparently not the commission of one or
more of the offences enumerated in that paragraph, but the fact
of belonging to, promoting or supporting a secret association or
society. He saw no contradiction there with the provisions of the
Covenant, but he was concerned at the prospect that, as indicated
in paragraph 14 of the report, the term of the sentence for participation
in a secret association or society could be extended if the person
concerned had previously been imprisoned for the same offence. As
no such offence had existed in Macau's criminal law before 1997,
he failed to see how a person could have already been imprisoned
on the same ground, and if the provisions in question had actually
been enforced in the past, that might raise questions concerning
the application of the Covenant. It was also disturbing that the
sentence could be extended if there was reason to expect that, once
released, the convicted person would not lead a socially responsible
life and would continue to break the law. The extension of the sentence
would then be based on a mere suspicion, and not on the commission
of an offence. There, too, the law appeared to raise questions with
respect to the provisions of the Covenant, particularly article
14, and he would like some clarification on those points. In addition,
he wondered whether, after 19 December 1999, a person in Macau who
had previously committed one of the offences listed in paragraph
6 of the report and who had been convicted for participation in
a secret association or society could be prosecuted again by the
authorities of the People's Republic of China in connection with
the offence in question, for which they might consider that the
person concerned had not been prosecuted and sentenced before. Furthermore,
he understood that extradition to the People's Republic of China
would be refused in the case of an offence subject to the death
penalty, but what would happen if the offence were subject to another
penalty, and especially a more severe penalty, than the one provided
for in the Territory of Macau? Lastly, he would be grateful if the
delegation could indicate in what way the legislation in that regard
was compatible with the provisions of the Covenant.
40. Mr. KLEIN said that the main question was whether the situation
of the Macau population with regard to human rights would or would
not deteriorate after 19 December 1999 and he asked whether the
delegation could give an assurance that all the statutes in force,
including those enumerated in paragraph 4 of the report, were in
full conformity with human rights standards, in particular those
set forth in the Covenant. Had any of the provisions of the legislation
applicable to Macau been deemed contrary to the new Basic Law and,
if so, were they likely to be repealed? He wondered, in particular,
about the provisions relating to the length of detention pending
trial, which the Committee against Torture had found excessive.
Furthermore, from what was said in paragraphs 20 and 24 of the report,
it appeared that the restrictions imposed by the law on freedom
of religion and worship were much more extensive than those provided
for in the Covenant and he wondered whether the provisions of article
18, paragraph 3, of the Covenant were really being respected. Lastly,
with reference to item 15 of the list of issues, where it was recalled
that the People's Republic of China did not recognize the principle
of dual nationality, he would appreciate information about what
criteria would be applied in granting Portuguese or Chinese nationality
for Macau inhabitants who might have both Chinese and Portuguese
origins.
41. Mr. SCHEININ, reverting to the question of the traffic in and
sexual exploitation of women (question 8), requested more information
about measures taken to assist women victims of trafficking and
prostitution. Paragraph 6 of the report indicated that a new law
had been passed to combat organized crime, which certainly included
prostitution networks, but he wondered what precisely was meant
by the phrase "organization established to obtain illegal advantages
or benefits". In addition, since the law provided that offering
and assisting illegal immigration was an offence (para. 6 (g)),
he wondered whether it could also be applied to hinder the activities
of humanitarian aid organizations. In the complex situation that
might arise in Macau after 19 December 1999, it was important that
the legislation should be as clear as possible and not allow for
divergent interpretations. Lastly, in its reply to question 18,
the delegation had merely indicated that the authorities had not
needed to apply the laws criminalizing any act of subversion, secession
or theft of State secrets. He would like more details about the
content of those laws and to know whether their provisions were
really consistent with article 19 of the Covenant.
42. Ms. CHANET said she wondered why, in a territory with a small
civil society (lawyers, journalists, etc.) and serious problems
related to crime, especially prostitution, there were so few non-governmental
organizations able to defend people's interests. Could the delegation
account for that phenomenon?
43. She had also been struck by the abundance of laws promulgated
over the past three years and by the fact that their value was very
relative, given that the Basic Law allowed for them to be altered
by any competent local administration after the Territory reverted
to China. She consequently wondered about the future of those laws.
On the other hand, nothing was said in the report about any law
governing the proclamation of a state of emergency and the issue
of the death penalty had not even been mentioned, although that
problem would inevitably have to be discussed between China and
Macau. Perhaps like the delegation could provide some clarification
on that point. Concerning the application of the Covenant itself,
problems in the interpretation in the interpretation of Covenant
provisions would also have to be faced by the authority in place
after 19 December 1999. Yet no provision seemed to have been made
to deal with any conflict between the Covenant and the legislation
in force, and the question of the application of the Optional Protocol
had likewise not been addressed; those were both matters of concern.
44. Lastly, she associated herself fully with the concerns expressed
by Lord Colville regarding the application of the law making it
an offence to participate in a secret association or society and
wished to add that the notion of secrecy was in itself very difficult
to define. Could the delegation provide some explanation of what
the State party meant by "secret association"?
45. Mr. AMOR, referring to paragraph 4 (n) of the report, asked
to what extent the State could issue a passport to a foreigner and
whether the document was not more in the nature of a laissez-passer.
With regard to paragraph 4 (cc), he would like to have some information
about the exercise of trade union rights by workers and about the
safeguards for such rights in general. In addition, with regard
to the criminal liability of corporations, as mentioned in paragraph
8 of the report, he asked what penalties could be imposed when such
liability was established.
46. With regard to freedom of religion, he would like to know whether
the Portuguese law of 1974 that had been extended to Macau guaranteed
both freedom of religion and freedom of belief. Also, did religious
communities or groups have to be registered with the administrative
authorities or were they free to carry out their activities without
any regulation? He would further like to know whether there was
any proselytising in Macau and whether there were any new religious
movements that might have difficulty in being accepted by the Chinese
authorities. Lastly, he requested clarification as to the meaning
of paragraph 33 of the report: was it to be understood that foreigners
in Macau could exercise the political rights set forth in article
25 of the Covenant?
47. Mr. LALLAH asked first of all whether decisions taken by the
highest court in Macau dealing concerned with human rights could
be appealed, for example, to the Standing Committee of the National
People's Congress of China, which was actually a political body.
That question was an important one because China was not a party
to the Covenant and therefore not required to observe the rights
set forth therein.
48. With regard specifically to the transition period, he inquired
whether the members of the Chinese police force who would be called
upon to supervise the hand over had been informed about the Code
of Conduct for Law Enforcement Officials, in order to ensure that
there would be no excesses or brutality of the kind that had been
reported in Hong Kong during that Territory's reversion to China
in July 1997.
49. Mr. COSTA OLIVEIRA (Portugal), answering Mr. Ando's question,
said the fact that Macau was regarded as Portuguese-administered
Chinese territory did not mean that the exercise of power there
was at all reduced or divided. Any decision concerning Macau was
reviewed by the Joint Liaison Group, which gave its opinion after
detailed consultations. The changes made in the last three years
to the legislation applicable in Macau would be retained, in accordance
with the principle of continuity. It would obviously be necessary,
however, to align some statutes with Chinese legislation, a process
that had already begun with the full cooperation of the Chinese
authorities.
50. The CHAIRPERSON said that the Portuguese delegation would continue
to reply to the Committee members' questions at the next meeting.
The meeting rose at 6 p.m.
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