HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF PORTUGAL'S REPORT ON TERRITORY OF MACAU

4 April 1997

Press Release
HR/CT/489

HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF PORTUGAL'S REPORT ON TERRITORY OF MACAU

19970404 Coordinator of Macau's Office of Legal Affairs Introduces Report, Says International Covenant Will Apply after China Resumes Sovereignty

Under the Sino-Portuguese Joint Declaration relating to Macau, it was assumed that the provisions of the International Covenant on Civil and Political Rights would continue to apply in Macau even after China resumes the exercise of sovereignty over that territory on 20 December 1999, the Human Rights Committee was told this morning by the Coordinator of Macau's Office of Legal Affairs.

Addressing the Committee as it began its consideration of Portugal's third periodic report on the application of the Covenant in Macau, Jorge Costa Oliveira said he understood that the territory's reporting obligations to the Committee would continue, even after the transition. The Chinese Government had been asked to state its view on the matter as soon as possible, but had not as yet replied.

Mr. Costa Oliveira, who led a delegation composed chiefly of experts from Macau, said the territory had already been given a high degree of international autonomy. After transition, Macau would be a jurisdiction of last instance, meaning there could be no appeal from Macau's courts to outside courts.

He said Macau had a tradition of more than 20 years as a mixed representative democracy, and its judicial system was already nearly autonomous. Under that system, public international law prevailed over domestic law. Responding to a question submitted earlier on the use of the Chinese language in the courts, he said all papers concerning outside relations with citizens were now bilingual. However, internal court papers were still only in Portuguese.

__________ * The 1575th Meeting of the Human Rights Committee was closed.

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Other members of the delegation addressing the Committee this morning were: the Assistant Coordinator of the Office of Legal Affairs, Paulo Pereira Vidal; the Adviser of the Assistant Secretary for Administration, Education and Youth, Ho Ven On; Lecturers in the Faculty of Law, University of Macau, Tou Wai Fong and Leonor Assunçao; and the Adviser to the Justice Minister, Joao Maria Nataf.

Following the introduction of the report, questions and comments were raised by the Committee's expert members from India, Germany, Egypt, Canada, Colombia, Japan, Australia, Mauritius and Ecuador.

The Human Rights Committee will meet again at 3 p.m. today to conclude its consideration of Portugal's report on implementation of the Covenant in Macau.

Committee Work Programme

The Human Rights Committee met this morning to consider the third periodic report of Portugal on application of the International Covenant of Civil and Political Rights in the Territory of Macau (document CCPR/C/70/Add.9), which was due in 1991. Under the 13 April 1987 Joint Declaration of the Governments of China and Portugal, the Macau area (including the Macau Peninsula, Taipa Island and Coloane Island) is Chinese territory. China is to resume the exercise of sovereignty over Macau on 20 December 1999. Until then, Portugal is responsible to Macau's administration.

The Governor, advised by a Consultative Council, and the Legislative Assembly, are the territories' governing bodies, according to the report. All aspects of Macau's public life are strongly influenced by the notion of participation by and consultation with the population and representatives of social, cultural and economic interests. As evidence of that, several consultative organs exist, such as the Council for Transitional Affairs, the Standing Committee on Coordinating Social Affairs, the Consumer Council, the Economic Council and the Education Committee.

Remedies available in the case of violation by administrative authorities of Covenant rights, which were extended to the Territory in 1992, take several forms, the report states. For example, citizens might lodge complaints with the Public Information and Assistance Centre on matters pertaining directly to themselves and concerning acts or omissions by public services.

Citizens may address the Centre in Portuguese or Chinese, in writing or orally, requesting clarification of the administration's activities, the report states. They may express criticism, suggestions and opinions of those activities, and submit demands and complaints concerning issues involving them personally and directly and to do with acts or omissions by public services. The Centre channels issues presented by citizens to the various services of the administration, providing users with the information they require to resolve those matters.

The report states that complaints could also be lodged with the High Commission against Corruption and Administrative Illegality. That body was responsible for promoting the protection of rights and freedoms. It might also address recommendations directly to the relevant authorities with a view to remedying illegal or unjust administrative actions. Other means of recourse included an administrative complaint, appeal for an administrative review by a superior administrative body, appeal for a judicial review of an administrative action and appeal to the Constitutional Court from a case under litigation. A "support appeal" (recurso de amparo) had also been recently introduced.

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In addressing the participation of women in public life, the report indicates that the President of the Legislative Assembly and the Under- Secretary for Health and Social Welfare are women. In addition, three members of the Legislative Assembly, including the President, and 19 out of 27 directors of public services are also women. With respect to the death penalty, the report states that the death penalty for civil crimes was completely abolished in Macau and has not existed for 124 years. It further states that the 1976 Portuguese Constitution prohibited extradition for crimes which carry the death penalty under the law of the requesting State, as did Macau's Decree Law 437/75 of 16 August, published in the Official Gazette of Macau No. 47 of 19 November 1977.

The report states that a special duty is imposed on the Macau Security Forces not to use arms except on superior orders or in cases of overriding necessity, such as averting aggression and maintaining or restoring public order. Under laws governing the use of firearms by Public Security Police and Maritime and Customs Police, prior and explicit warning must be given, steps taken to assist the injured and a written report submitted even if no injury has occurred. The Organic Law of the Judicial Police also limits the use of arms to serious risks to life and physical integrity or when public security is seriously threatened.

The Portuguese Assembly has declared that article 13 of the Covenant -- which deals with conditions governing expulsion from a territory of an alien lawfully present there -- is not applicable to Macau "as far as the entry and departure of persons and the expulsion of foreigners from the Territory are concerned", the report states. It declares that such matters would continue to be regulated under the Organic Statute of Macau, which was approved in 1976, and such other applicable legislation as the Sino-Portuguese Joint Declaration.

Under the Portuguese Constitution, freedom of conscience, religion and worship is inviolable, the report states. It adds that the Catholic Church has a special status in Macau as a result of its past relations with Portugal. However, Catholicism has only been one, and not the most widespread, of the various religions practiced by Macau's multicultural population.

By law, the right to expression of thought and information are to be exercised without any censorship or hindrance, the report states. Radio and television broadcasting is to be carried out in an independent and autonomous manner. That was ensured by the Broadcasting Council, which was also charged with safeguarding pluralism, guaranteeing rigorous and objective reporting, ensuring the quality of programming and protecting and ensuring the relevant rights.

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Macau's law also allows the creation of political parties, the report states. The Portuguese Constitution ensures the right to join a trade union, as well as the rights of trade unions and the collective right to bargaining. While there is no specific legislation in Macau concerning trade union activities, there are many recognized workers' associations there which are similar to trade unions.

Under article 25 (b) of the Covenant, every citizen is guaranteed the right and opportunity to "vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors".

According to the report, Portugal applied a reservation to that article in the case of Macau. Specifically, it stated that the provision should not be applied to Macau as concerns the composition of elected bodies and the method of choosing and electing office holders. "It was understood that this reservation should be made in order to avoid any doubts arising from the existence of members appointed by the Governor or elected by indirect suffrage to the Legislative Assembly, the Consultative Council or the Municipal Assemblies."

The report also notes that Chinese has already been made an official language of Macau. In addition, all efforts were being made to overcome the difficulties resulting from the fact that some sectors of the administration and the judicial system still function solely or partially in Portuguese.

List of Issues

The Committee has prepared a list of issues to be taken up with respect to Portugal's report. Among the specific questions included in part I of the list of issues (which addresses matters considered to be of greater urgency) are the following:

What arrangements had been made or contemplated to ensure that Macau's reporting obligation under the Covenant will be met in future? Had Macau's residents been consulted during elaboration of the Sino-Portuguese Joint Declaration? During the past three years, what cases had been brought before the Public Information and Assistance Centre and the High Commission against Corruption and Administrative Illegality? What had been the outcome of recent cases?

Had the Government of Macau envisaged establishment of a national human rights institution to deal with such issues and/or monitor implementation of the Covenant? What was the current number and proportion of persons of Chinese origin in the Territory's political, economic, social and cultural life? What sectors of the administration and the judicial system still

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functioned only in Portuguese? What difficulties had the Government encountered in introducing the Chinese language in the administrative, legislative and judicial areas?

How effective were the measures taken with respect to use of weapons by the police? Had there been any violation of those rules by the police and security forces, particularly in the disturbed areas? If so, what measures had been taken against persons found guilty of such acts, and to prevent their recurrence? During the review period, had there been any complaint to the authorities of torture, inhuman or degrading treatment or punishment by the police and other forces? Had there been complaints of arbitrary detention? If so, had investigations been carried out, and with what results? Was there punishment of those found guilty and compensation for victims? What steps were taken to avoid a recurrence?

What measures had the State party adopted to regulate entry, length of stay and establishment of residence in Macau? What were the legal implications of the temporary residence permit? What measures were taken by the Government concerning illegal immigration? In particular, what procedure did the authorities follow to establish that return or extradition of an individual to the country of origin did not represent a risk for that person? What remedies were available to individuals in that situation? Why was article 13 of the Covenant considered not applicable to Macau?

Among the specific questions included in part II of the list of issues prepared by the Committee are the following:

What was the status of the Covenant in Macau, and how was it implemented in law and in practice? In cases of conflict between the Covenant and domestic law, which would prevail? How effective were present institutional arrangements for monitoring its implementation? During the review period, were Covenant provisions ever directly invoked before the courts or mentioned in judicial decisions?

What steps had been taken to disseminate information on the Covenant in Macau's two official languages? Had the public been informed of the Human Rights Committee's consideration of the report of Macau? In addition, the experts requested more information on education and training provided to government officials, school teachers, judges, lawyers and police offers on the Covenant, as well as on measure to sensitize the media and decision makers about its principles and provisions.

Were women's participation in public life proportionate to their number within society? To what extent had women achieved political, economic and social equality? Were there wage differences between men and women? Were any measures contemplated to lift those differences? What was done to protect

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women from other countries who were brought to Macau for purposes of prostitution, to prevent that form of trafficking and forced labour and to impose sanctions on those who so exploited women?

What were the rules and regulations guaranteeing the independence and impartiality of the judiciary? What was the mode of appointment, tenure, dismissal and disciplining of members of the judiciary? What were the main differences between the status of the Catholic Church and other religious denominations in Macau? What were the current practices regarding censorship and control of the media? How many charges of abuse of press freedom had been prosecuted? What was the role, composition and activities of the Press Council?

Had the Sate party given consideration to reviewing its reservation to article 25 (b) of the Covenant and to withdrawing it? What had been done to ensure equal access to all levels of public service? How many children were employed in industrial or non-industrial establishments? What were the major types of occupation in which they were employed? What measures were being taken to protect children from sexual abuse, including exploitation and prostitution?

Introduction of Report

JORGE COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs of Macau, said Portugal gave the highest priority to protecting human rights in Macau. That was done in several ways. First and foremost, the rules of the Portuguese Constitution on civil liberties were enforced. Efforts were also under way to bring international human rights treaties into force in Macau. Among those treaties, emphasis was placed on the Covenant, which had Portugal, in agreement with China, had extended to Macau. All efforts were being made to implement human rights regulations on domestic law, without loopholes.

He said Portugal granted Macau a high degree of autonomy in international relations. As a result, Macau now enjoyed some kind of international personality. The delegation before the Committee was composed chiefly of experts from Macau. Extensive measures had been taken to make the Covenant and its protections widely known in Macau, in consultation with non- governmental organizations. Although the position beyond 1999 -- the end of the transition period -- could be known as one country, two systems. However, it would be more accurate to say "one country, three legal systems".

While many of the issues facing Macau were similar to those facing Hong Kong, there were also significant differences, he said. In Macau's legal system, public international law prevailed over domestic law and could be directly invoked before and applied by the courts. When allowed by treaties, it could be applied in inter-citizen relations. Macau's system, which was now

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almost completely autonomous, had a tradition for over 20 years as a mixed, representative democracy. Macau also had a judicial system that was almost completely autonomous, in which cases were completed through the appeals phases within Macau. There were also differences on issues which concerned the Committee, he said. One involved the issue of nationalities; the other dealt with the question of discrimination. As was clear from the report, progress had been made in many areas, including the "officialization" of the Chinese language.

Response to List of Issues

Turning to the list of issues submitted in advance by the Committee, he said the obligation made by China to continue implementing the Covenant included respect for Macau's reporting obligations. In addition, Portugal had asked the People's Republic of China to state its opinion on the matter as soon as possible. So far, China had not replied.

In entering talks for a Sino-Portugal Joint Declaration, the declaration regarding Hong Kong was viewed as a model, in many respects. However, it was also necessary to include features relating specifically to the situation in Macau. For example, local communities had called for special clauses relating to local inhabitants of Portuguese ancestry.

PAULO PEREIRA VIDAL, Assistant Coordinator of the Office of Legal Affairs of Macau, said the Public Information and Assistance Centre had received and addressed 358 complaints in 1993, 377 in 1994, 311 in 1995, and 342 in 1996. The High Commission against Corruption had the power to investigate reports of corruption, carry out inspections of specific services, and carry out preventive actions. He said the High Commission did not have the extensive powers of a similar body in Hong Kong, with which it was often compared. However, it had the power to pass cases on to the Public Prosecutor for the due process of law. During 1993, there were a total of 100 actions relating to criminal matters. Of those, there were 70 corruption cases. Of the 100 actions, 23 were sent to other bodies, such as the Public Prosecutor's Office. Other means of resolution were recommended for the remaining cases.

The High Commission also acted as ombudsmen, receiving general complaints from the public and making relevant recommendations on public policy, he said. In 1993, there were 103 such cases investigated, of which six were related to alleged breaches of fundamental rights and freedoms. Of those, 35 recommendations were issued to the Government. To his knowledge, all those recommendations had been implemented. He also provided statistics for 1994. Generally, 30 to 40 per cent of such cases were solved without any need for the Commission to issue recommendations.

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He said the executive of Macau was considering the question of the establishment of a national human rights institution with competence to deal with human rights issues and/or monitor implementation of the Covenant. However, no local non-governmental organization had proposed such a body. Under the Sino-Portuguese Declaration, the criteria for determining permanent residency in Macau was not based on ethnic grounds.

HO VEN ON, Adviser of the Assistant Secretary for Administration, Education and Youth of Macau, said there was a Consultative Council in Macau, which worked directly with the Governor. It had 10 members, appointed by the Governor. Forty per cent of Council members were born in Macau. There was also an urban council, with 65 per cent of the members born in Macau, and 35 per cent in China. In public service, 23 per cent of department heads were born in Macau and 2 per cent in China.

Turning to Macau's economic situation, Mr. COSTA OLIVEIRA said "the worries should be on the non-Chinese community", since the economy was dominated by the Chinese community. Macau also had social and cultural life. Visitors came from the surrounding region -- mainly Taiwan and mainland China -- to participate in social and cultural events.

TOU WAI FONG, Lecturer in the Faculty of Law, University of Macau, spoke on the difficulties encountered by the Government in implementing the Chinese language in the administrative, legislative and judicial areas. With an increasing number of competent bilinguals, the situation was being progressively improved. The need to translate legislation posed a heavy burden.

Up until 1993, there were four translator-interpreters in the courts and one in the Public Prosecutor's Office. Beginning in September 1994, simultaneous interpretation was introduced for criminal cases and, in 1995, for all other cases. There were now 11 translator-interpreters in the courts, three in the Public Prosecutor's Office, and some others giving general support. The standard forms for court papers were published both in Chinese and Portuguese.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said many official forms were now bilingual. However, progress was still needed with respect to translation and interpretation. In the courts, all papers concerning outside relations with citizens were bilingual. However, all of the court's internal papers were only in Portuguese. Discussions were now under way as to whether that was appropriate. Some problems also existed with respect to public notaries and registrars. Efforts continued to make documents bilingual.

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Turning to other questions, he said there were no known cases of torture in Macau. However, there were several cases of police abuse, leading to ill- treatment or police violence. In 1994, there were 15 cases of violence caused by the police leading to injuries. There were 44 cases in 1995 and 30 in 1996. With respect to undue use of weapons by the police, there were four cases in 1996. Inquiries were opened in all cases, in two of which disciplinary measures were taken. The other two cases were still open.

Responding to questions relating to torture, LEONOR ASSUNÇAO, Lecturer on the Faculty of Law, University of Macau, said that the right to compensation was fully recognized and that judges presided over such hearings of such claims. The size of the compensation depended on the gravity of the offence crime.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said all cases of ill-treatment or police violence were isolated ones. Members of the police were given special training on all aspects of the law, including use of weapons. On questions raised about the treatment of prisoners, Ms. ASSUNÇAO, Lecturer on the Faculty of Law, said the fundamental rights of prisoners were respected. There were rules concerning the separation of male from female prisoners, discipline and punishment of prisoners. Corporal punishment was forbidden, and prisoners had the right of access to legal counsel, medical assistance, and cultural and sporting activities. Prison regulations were made known to prisoners in language they could understand. Courses, including criminal law and ethics, were organized for prison officials and members of the security forces by the Justice Department. Any complaints from prisoners were given to the appropriate authorities.

With regard to freedom of movement and expulsion of aliens, JOAO MARIA NATAF, Adviser to the Justice Minister, said the length of stay of aliens could be extended. Persons making the request must show proof of financial independence. Humanitarian reasons could be invoked as a basis for an extended stay. Temporary residence could become permanent after certain requirements had been met. He said that 55 per cent of the present population had not been born in the territory, and that Macau had the highest population density in the world. He said Macau continued to receive a large number of immigrants, mainly from mainland China. Administrative procedures were taken to expel aliens. Illegal immigrants caught had the right of asylum, but most were economic refugees. The first phase of extradition was administrative, followed by the judicial process. The law did not allow extradition of people to countries that had the death penalty. States requesting the extradition of individuals must provide relevant information, including on the right of access to legal counsel.

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Comments by Experts

PRAFULLACHANDRA BHAGWATI, expert from India, said the report did not provide information on what was actually happening on the ground in the territory. He hoped the delegation would provide information on how some of the issues raised by Committee members were actually implemented. He welcomed the abolition of the death penalty and the fact that basic rights could be preserved even under a state of siege. He was satisfied that even those jailed enjoyed fundamental rights.

He hoped the introduction of the Chinese language in the courts would help litigants. He also hoped the laws being drafted would be in Chinese, as well. He asked if training courses for judges included courses on human rights, and whether they were sensitized about human rights issues. What recourse existed for direct appeals to the courts for persons seeking redress over human rights violations? Could individuals invoke Covenant rights over domestic law? Could a person resident in Macau challenge the validity of domestic law that was in violation of Covenant provisions?

ECKART KLEIN, expert from Germany, commended Portugal for taking human rights issues into account in its negotiations with China on the future of Macau. Were problems anticipated over the implementation of the joint declaration, as had occurred in neighbouring Hong Kong? Why was the continuity in the application of Covenant provisions not included in the joint declaration with China? Would special relations between Macau and Hong Kong be maintained after 1999? Was the Portuguese military deployed in Macau? Did they have any police or judicial functions.

OMRAN EL-SHAFEI, expert from Egypt, requested clarification on the position of the Portuguese authorities with regard to the application of the Covenant in its totality beyond 1999. He also asked whether the Portuguese authorities expressed reservations on the issue of freedom of movement during the negotiations with China over Macau.

MAXWELL YALDEN, expert from Canada, wanted clarification on the institution that performed functions similar to that of an ombudsman. He said it was not correct, as was stated by the delegation, that there was no ombudsman in Portugal. He would like to know when the authorities intended to establish human rights institutions in Macau.

PILAR GAITAN DE POMBO, expert from Colombia, asked how the confluence of three legal systems in Macau influenced the implementation of the Covenant? After 1999, would one language have precedence over the rest? Also, was there a homogenous dissemination of information about the Covenant provisions? She welcomed the abolition of the death penalty in Macau.

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NISUKE ANDO, expert from Japan, asked why it took so long for Portugal to apply the Covenant provisions in Macau. On the issue of nationality, he requested information on the procedure for registration of permanent residents.

ELIZABETH EVATT, expert from Australia, noted that the Committee had received very little information from non-governmental organizations in Macau and wondered whether that was due to little knowledge about the Covenant. The Committee would want to know how the reporting functions on compliance with the Covenant in Macau would be carried out after the territory reverted to China. On the question of extradition, she wanted to know whether people repatriated to China would be exposed to great risks after the territory reverted to China.

RAJSOOMER LALLAH, expert from Mauritius, said he was not aware of any provision in the Covenant regarding its application to a Territory administered by a State party. If the Covenant became automatically applicable to Macau upon Portugal's accession to it, how could it later enter a reservation on that matter? The law of Macau, over which Portugal had no authority, gave a limited and incomplete description of freedom of expression. Nevertheless, the report spoke of the application of human rights protections in Macau under the Portuguese Constitution.

When, if at all, would the Portuguese Constitution cease to be current as part of the law of Macau? he asked. When the report says the current law would continue to apply, did it mean that such elements of Portuguese law would outlive the passing of authority in 1999? Such questions would reveal the relative strength or weaknesses of human rights protections in Macau following the transition of 1999.

JULIO PRADO VALLEJO, expert from Ecuador, said the basic law of Macau came from Chinese law and could be amended at any time. Portugal had made major strides towards ensuring that the fundamental principles of human rights were reflected in that basic law. The report stated that rights would be implemented in accordance with the law. What would happen if there was a contradiction between the laws which might be enacted by the authorities in Macau and those which might exist in China? What would happen if China were to decide to change its laws to limit the rights of those in Macau?

Reply by Delegation

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said those who lived in Macau took certain things so much for granted that they had been omitted from the report. One was the principle that Macau's legal system, like Hong Kong's system, was autonomous. That meant that the laws of China, also referred to as the basic law, did not apply to Macau unless they

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were brought into force there. In most cases, there would be no contradiction between national and regional laws. National laws should only address issues that were not in the competence of Macau. They should only handle sovereign issues. "There should be no juxtaposition on these matters; let's hope it happens like this", he said.

Another principle relating to the high level of autonomy that Macau would enjoy was that Macau would be a jurisdiction of last instance, he said. That meant there would be no appeal from Macau's courts to outside courts. After an interim reform of 1991, that was accomplished in large measure, but there was still some work to be done.

There was unanimous agreement that article 8 of the Portuguese Constitution, which related to civil liberties, applied in Macau, he said. That also applied to other principles that were inherent to the concrete application of civil liberties in the legal system. As to whether any citizen could directly invoke such a right in the courts, that could be done and had already happened.

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