HUMAN RIGHTS COMMITTEE COMPLETES EXAMINATION OF PORTUGAL REPORT ON TERRITORY OF MACAU

4 April 1997

Press Release
HR/CT/490

HUMAN RIGHTS COMMITTEE COMPLETES EXAMINATION OF PORTUGAL REPORT ON TERRITORY OF MACAU

19970404 Committee Chairperson Says Portugal's Protection of Human Rights Portends Calm Transition to Chinese Sovereignty after 19 December 1999

The precautions the Portuguese authorities had taken with respect to the protection of human rights in Macau seemed to portend its calm and serene transition to Chinese rule after 19 December 1999, the Chairperson of the Human Rights Committee said this afternoon, as the Committee completed its day-long examination of Portugal's implementation of provisions of the International Covenant on Civil and Political Rights in the territory.

The expert from France and Committee Chairperson, Christine Chanet, said the negotiations between the Portuguese and Chinese authorities on the transition seemed to be going rather well. She said Macau's status as the first territory in Asia to abolish the death penalty was impressive, as was its refusal to extradite persons to countries that employed the death penalty or life sentences. She hoped that the authority that succeeded Portugal would continue to respect that law.

The expert from Japan, Nisuke Ando, said the Portuguese authorities had done their utmost to make possible the application of Covenant provisions in Macau. He said the residents of Macau should be fully informed about their human rights prior to 1999, so that they would be in a position to affirm those rights.

The expert from Australia, Elizabeth Evatt, said concern remained about the continued implementation of the Covenant in Macau after the transition, including fulfilment of its reporting obligations. The Committee would urge the non-governmental organizations that provided it with information to keep the Government aware of their findings with respect to forced labour.

The expert from the United Kingdom, Lord John Mark Alexander Colville, also stressed the importance of continued reporting by Macau to the Human Rights Committee under the Covenant. The Government of Portugal had done everything in its power to ensure China's observance of that obligation. If it was of any weight at all in the course of negotiations with the Chinese Government, the Portuguese delegation should know that it was the unanimous and earnest view of the Human Rights Committee that such reporting must continue.

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The experts from India, Canada, Germany, Finland, Lebanon and Mauritius also participated in the discussions of the Portuguese report this afternoon.

In his final comment, the Coordinator of the Office of Legal Affairs of Macau and head of the delegation, Jorge Costa Oliveira, said that their appearance before the Committee represented an historic moment. Since 1990, efforts had been under way to ensure the extension of the Covenant to Macau. Efforts had also focused on reaching such agreement with the Chinese Government.

Among the issues raised during the consideration of the third periodic report of Portugal on the territory of Macau were: the condition of women lured to Macau for prostitution and drug trafficking; the status of the Covenant in relation to domestic law; dissemination of information on the Covenant; freedom of conscience and religion; and rights of the child.

The Committee will meet again at 10 a.m. Monday, 7 April, to begin consideration of the second periodic report of Lebanon on its compliance with the International Covenant on Civil and Political Rights.

Committee Work Programme

The Human Rights Committee met this afternoon to continue its examination of the third periodic report of Portugal on the application of the International Covenant on Civil and Political Rights in Macau. (For background, see Press Release HR/CT/489 issued today.)

Response by Portuguese Delegation

Continuing the delegation's response to issues raised by Committee experts, JORGE COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs of Macau, said that the Portuguese Constitution had provisions on civil liberties that were applicable to Macau. They included general principles relating to freedom. The jurisdiction of the Constitutional Court of Portugal also covered Macau, as well. Persons whose extradition had been sought by China had successfully appealed to the Portugal's Constitutional Court, which did not recognize the death penalty.

PAULO PEREIRA VIDAL, Assistant Coordinator of the Office of Legal Affairs of Macau, said that the High Commission against Corruption had the major traits of an ombudsman. Responding to questions about the delay in the application of the International Covenant on Civil and Political Rights in Macau, he said that the Portuguese Government had long ago apprised China of its intentions regarding incorporation of the Covenant provisions into domestic law.

He said he did not foresee any difficulties in the application in Macau of international legal instruments adhered to by China after the territory reverted to China. All the main legal codes of Macau were being rewritten, taking into account local realities. Already, the criminal code and others had been rewritten. The clause of continuity of all legal instruments had been written into the Joint Declaration signed by Portugal and China on the future of Macau. All the laws in force at the time of Macau's transition would remain. China had never raised any objection on those issues.

Responding to questions as to why no reference was made to the continuity of laws in the Joint Declaration, he said that was due to the fact that the Covenant had not been published in the Official Gazette of the territory, as was required by law. He said that since the Portuguese revolution, Macau had not been considered a Portuguese colony, but a Chinese province. Discussions had been held with China on reporting obligations under the Covenant, but Portugal could not answer for China on the subject. He assured the Committee that the issue would continue to be raised with the Chinese authorities.

Turning to relations between Macau and Hong Kong after 1999, JOAO MARIA NATAF, Adviser to the Justice Minister of Macau, said there would be no

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changes in their legal relations. On the issue of nationality, he said the problem was complicated. Macau was not a State. There were two kinds of residency: temporary and permanent. Persons born in the territory were Chinese citizens.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said that Portugal had no troops in Macau, but had military personnel that performed certain duties with local security forces. They were gradually being replaced by the locals. The Portuguese authorities were also gradually replacing top Portuguese civil and public servants with locals, which should be completed before China resumed sovereignty in 1999. He did not think there would be any problem in the application of the various laws after China took over.

Portuguese authorities had taken a number of initiatives to popularize the provisions of the Covenant on radio and in the newspapers, he said. The text of the Covenant had been published as pamphlets for distribution in schools. The authorities had consulted 150 non-governmental organizations, but those non-governmental organizations were not as militant as those in Hong Kong. He stressed that existing laws on extradition would continue to be applied, but he could not guarantee what would happen after 1999. He noted that many of the laws being enacted in Macau would reflect the Covenant provisions.

Experts' Response

ECKART KLEIN, expert from Germany, said he was relieved to hear that there was an international treaty with China, which the delegation had called a "memorandum of understanding". Could the Committee be provided with the text of that agreement?

RAJSOOMER LALLAH, expert from Mauritius, expressed reservations about Portugal's interpretation of the legal impact of its accession to the Covenant with respect to Macau. The Covenant became binding on Portugal with respect to Macau right from the beginning, he said.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said he did not have the text of the agreement Mr. Klein had cited, but he would relay the request to the Portuguese Government. Responding to Mr. Lallah's comments, he said Macau was not Portuguese territory; it was Chinese territory under Portuguese administration.

Asked by PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, for a copy of the Organic Statute in English, Mr. COSTA OLIVEIRA said his delegation did not have it immediately available, but he would attempt to get a copy.

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CHRISTINE CHANET, expert from France and Committee Chairman, raised the question of Macau's international identity under law. She also expressed an interest in having a copy of the memorandum of understanding.

Mr. COSTA OLIVEIRA said it was held that Macau did not have an international personality, except in a few areas. The scope of that personality was very limited indeed.

Discussion of Remaining Issues

The Covenant prevailed over domestic law in Macau, Mr. COSTA OLIVEIRA continued. Domestic law in Macau had to respect the strict limits set forth under Portuguese law which, in many cases, were more rigorous than the Covenant. Those limits and regulations had been respected in practice. Extensive actions had been taken in Macau to disseminate information regarding the Covenant. The training of police officers and agents included legal disciplines, which included education on human rights. The same could be said about judges and lawyers. There were also seminars for teachers.

He said extensive information was also disseminated on Chinese-language media in Macau. All the newspapers and media in Macau had been reporting on the Committee's consideration of Portugal's report. It had even been on the front pages.

VIRGINIA SILVA, Adviser to Macau's Assistant Secretary of Communication, Tourism and Culture, said the information in the report on the proportionate participation of women within society was still current. However, there were four woman deputies in the legislative assembly now -- one more than cited in the report. Nevertheless, women could be elected and participate in the Government.

Between 1992 and 1996, there had been an increase in the percentage of women in the employed population, she said. They represented 47 per cent of those employed in technical and artistic professions, 65 per cent of those in administrative professions, and 59 per cent of those in industrial professions. Nevertheless, there were wage differences in Macau between men and women. In some occupations, they had higher wages than men, while in others their wages were lower. That was attributable to market factors. In any event, the differences in wages were not substantial, amounting to maybe 10 or 20 per cent higher or lower. It was not a question of real discrimination or inequality.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said that prostitution did exist in Macau and was not a crime. However, the exploitation of prostitution was a crime. The executive had not found any cases of residents engaged in forced labour. People went to Macau to prostitute themselves. A strong link with organized crime was suspected, but

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it was very difficult to prosecute. The penalties for exploitation of prostitution and for forced labour were quite strong under Macau's criminal code. However, that did not prevent such activities.

The courts in Macau were independent, Mr. VIDAL, Assistant Coordinator of the Office of Legal Affairs, said. That independence was achieved by giving the judges powers, privileges and duties. They were not subject to instructions from the executive and other bodies, except for higher courts. They could not be dismissed or transferred to other courts without their consent, except under very strict procedures. They could not be held liable for their decisions unless those decisions involved a criminal offence. Portuguese judges were offered only temporary, fixed-term appointments. Local judges were offered permanent spots.

Judges could not exercise other professions, except for teaching law, he said. They must reside in the Territory. First-instance judges were also subject to inspection, which took place, at an average, every two years. Disciplining of judges and public prosecutors involved a scale of sanctions, ranging from advice to expulsion. There was due process in such cases, and the accused had ample right for self-defence.

The Portuguese Constitutional Court had its seat in Lisbon, he said. The Administrative Court of Macau had its seat in Macau. Only very few cases could be brought before the Constitutional Court. Some 20 to 25 per cent of the lawyers in Macau were bilingual. Most of the lawyers' offices in Macau were able to carry out contracts and other legal documents in both languages. The offices of most lawyers were also public notaries and were able to carry out those functions in Chinese.

Responding to questions on freedom of conscience and religion, he said that the Catholic Church was the main church. The media, which was mostly privately owned, was not controlled. He cited a case where an official had been removed from office for attempting to restrict a programme by a local Chinese radio station.

Ms. SILVA, Adviser to the Assistant Secretary of Communication, Tourism and Culture, also responding to questions on the media, said that the Government had not been able to reach agreement with journalists on the composition of a proposed press council. As a result, the council had still not been established.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, commented that efforts were still being made to resolve the problems related to the establishment of a press council. He said some journalists had doubts about the council's role. They felt that they would rather not have a supervisory body over their activities, he said.

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Mr. VIDAL, Assistant Coordinator of the Office of Legal Affairs, said that there were no political parties in the sense of the phrase. However, civic associations existed, which carried out all sorts of functions. There were six such associations which, in the view of the Government, did the job much better than the normal political parties. There were 24 trade union organizations.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said that there was no discrimination against the two nationalities in Macau with regard to promotion in the civil service. As for the rights of the child, he stressed that there was no problem with child labour, although there had been some cases involving youngsters between the ages of sixteen and eighteen years. He did not know of any cases of minors involved in prostitution.

Comments from Experts

Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, asked what the delegation thought about the possibility of the devolution of rights currently enjoyed after the territory reverted to Chines rule.

DAVID KRETZMER, expert from Israel, sought information on drug trafficking involving women in Macau. Was there any specific government policy to protect the rights of such women?

ELIZABETH EVATT, expert from Australia, said that she had received reports on women brought into the country for drug trafficking and prostitution. Noting that those women had no money or documents, she also requested information on what protection they enjoyed under the law. She expressed regret about the reservations expressed by Portugal on the right to take part in the conduct of public affairs and in other electoral affairs, as provided for under the Covenant.

MARTIN SCHEININ, expert from Finland, referred to the question of documentation for women brought into country. He said that Portugal's reservations on provisions of the Covenant relating to the right and opportunity to take part in the conduct of public affairs should not be applied to the territory, and that the people of Macau should not be denied the enjoyment of that right.

LAURE MOGHAIZEL, expert from Lebanon, sought information on the proportion of women in public service. What was their number in decision- making positions. Were there female judges? How were non-Catholic marriages conducted?

In response, Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said Macau was already considered by Portugal to be Chinese territory under Portuguese administration at the time it signed the Covenant. Unlike

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the United Kingdom's actions regarding Hong Kong, Portugal made no statement regarding the applicability of the Covenant to Macau. There were, so far, no women judges in Macau, but there was one female public prosecutor, and there were expected to be many more, as currently 40 per cent of trainees were women.

One need not marry in a Catholic Church, he said. On the contrary, the vast majority of the population got married in the civil register. However, if one married in a religious temple that was not Catholic, the marriage had no civil effect and must be entered in the civil register.

Only in a few cases had it been necessary for the courts to question whether something involved a matter of State, he said. The judges had not only the power, but the duty to interpret the provisions of the basic law. There were local laws on the freedoms of expression and assembly that were applied and were expected to remain in force. Owing to the requirements of Portuguese law, those freedoms were given very wide scope.

With respect to prostitution, he said that, as far as he knew, there was no forced labour in Macau. There had been cases in which documents had been taken away, and there had been prosecutions. However, that did not happen any more. The prostitution in Macau seemed to originate in economic need. The exploitation of that situation by organized crime did not necessarily result in forced labour.

Final Comments

Mr. BHAGWATI, expert from India, congratulated the Government of Macau for various achievements over the past few years. The Sino-Portuguese Joint Declaration did not refer to the Covenant, since it was not in effect at the time. The question of whether it later became automatically applicable to Macau would be a matter for considerable debate. However, it was later extended to Macau, and China, with the basic law of 1993, made it clear that the provisions of the Covenant would remain in force in Macau even after the transition of 1999. There were no grounds for the Committee to assume that China would renege on that commitment.

He said women from the Russian Federation, China, Viet Nam and Thailand were brought into Macau and employed as prostitutes. The State could not plead helplessness and claim that was not forced labour. When women were brought into that occupation under false promises and then could not get out, what was it but forced labour? It was indeed forced labour and must come to an end.

NISUKE ANDO, expert from Japan, said the size and quality of the delegation had been excellent. The Portuguese authorities had done their utmost to make possible the application of Covenant provisions in Macau. He

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understood Portugal's view that its accession to the Covenant did not automatically involve extension of the Covenant to Macau, which it viewed as Chinese territory under Portuguese administration.

He stressed the importance of continuing to expand the use of the Chinese language in Macau's official bodies. The residents of Macau should be fully informed about their human rights prior to 1999, so they would be in a position to affirm those rights.

MAXWELL YALDEN, expert from Canada, welcomed the concise, clear and excellent presentation by the delegation from Macau. He joined the expert from Japan in encouraging the authorities to push ahead on the use of the Chinese language. Women's participation in senior positions remained a problem. He was sceptical about the statement that women did not have a problem with respect to the wage differential in Macau. In most countries, that differential was in the area of 30 per cent. On the question of forced labour, he said that if a woman's passport was taken from her, she could not be said to be remaining in the country voluntarily.

ELIZABETH EVATT, expert from Australia, said concern remained about the continued implementation of the Covenant in Macau after the transition, including fulfilment of its reporting obligations. The Committee would urge the non-governmental organizations that provided it with information to keep the Government aware of their findings with respect to forced labour.

Mr. KLEIN, expert from Germany, said he knew much more about the situation in Macau than he did this morning, owing to the clear information provided by the delegation. Portugal's duties to Macau under the Covenant did not extend only to December 1999. They included the duty of ensuring that the successor sovereign would continue to observe both the substantial and procedural requirements of the Covenant, including its reporting procedures. Portugal's efforts in that area were welcome and should be continued as necessary.

Lord COLVILLE, expert from the United Kingdom, stressed the importance of continued reporting by Macau to the Human Rights Committee under the Covenant. The Government of Portugal had done everything in its power to ensure China's observance of that obligation. If it was of any weight at all in the course of negotiations with the Chinese Government, the delegation should know that it was the unanimous and earnest view of the Human Rights Committee that such reporting must continue.

CHRISTINE CHANET, expert from France and Committee Chairperson, said the conditions of negotiating the transition seemed to be going rather well. The precautions that had been taken seemed to portend a calm and serene transition. Macau's status as the first territory in Asia to abolish the death penalty was impressive, as was its refusal of extradition to countries

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that employed the death penalty or life sentences. She hoped the authority that succeeded Portugal would continue to respect that law.

She said that Portugal exercised international authority in Macau. When it acceded to the Covenant, and in the absence of territorial reservations at that time, it had to assume the extension of the Covenant to Macau. Later reservations could only address domestic matters and could not address the issue of the Covenant's application to Macau. A subsequent memorandum of understanding with China affirmed the continued application of the Covenant to Macau after transition. There remained certain privileges accorded to Catholicism in Macau, a matter that must be addressed.

The Committee had received information on the standard of living of women who were forced into prostitution, which the delegation did not accept, he said. Information had even been received on their nationalities. That issue was also a matter of concern for the Committee.

Mr. COSTA OLIVEIRA, Coordinator of the Office of Legal Affairs, said his delegation's appearance before the Committee represented an historical moment. Since 1990, efforts had been under way to ensure the extension of the Covenant to Macau. Efforts had also focused on reaching such agreement with the Chinese Government. The delegation had tried its best to give straightforward answers and welcomed the Committee's suggestions and recommendations.

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