Portugal (Macau)
1. The Committee considered the
fourth periodic report of Portugal relating to Macau (CCPR/C/POR/99/4)
at its 1794th and 1795th meetings, held on 25 and 26 October 1999, and
adopted the following concluding observations at its 1806th meeting,
held on 2 November 1999.
A. Introduction
2. The Committee welcomes the attendance of a
large delegation, including a number of officials from the Macau Government.
It wishes to express its thanks to the representatives of the State
party for their detailed responses to the questions posed orally and
in writing and the comments made by the Committee during its consideration
of the report, and for their offer to supply further information in
writing. The Committee regrets that, although it has received information
on the legislation applicable before and after 19 December 1999, it
has not been given enough detail on the subject or up-to-date statistics.
3. The Sino-Portuguese Joint Declaration,
read in conjunction with the Memorandum of Understanding and the Basic
Law, provides a legal basis for the continued protection in Macau after
19 December 1999 of the rights specified in the Covenant. The Committee,
moreover, wishes to reiterate its long-standing position that human
rights treaties devolve with territory, and that States continue to
be bound by the obligations under the Covenant entered into by the predecessor
State. Once the people living in a territory find themselves under the
protection of the International Covenant on Civil and Political Rights,
they cannot be stripped of that protection on account of a change in
sovereignty. (See documents CCPR/C/SR.1178/Add.1, SR.1200-1202 and SR.1453.)
Consequently, the reporting requirements under article 40 of the International
Covenant on Civil and Political Rights will continue to apply and the
Human Rights Committee expects to receive and review reports in relation
to Macau after 19 December 1999.
B. Positive
aspects
4. The Committee notes with satisfaction the
negotiations between the Portuguese and Chinese authorities to ensure
legal continuity (article 8 of the Basic Law) and continued application
of international treaties. It welcomes the fact that a large number
of the rights and fundamental freedoms set forth in the International
Covenant on Civil and Political Rights are enunciated in articles 24
to 44 of the Basic Law of Macau.
5. The Committee notes with satisfaction
the great efforts which have been made in the past few years to give
the Chinese-speaking population access to official forms and to court
documents and decisions in Chinese, and that Chinese is used in the
courts and for official business. It notes that, under article 9 of
the Basic Law, both Chinese and Portuguese can be used as official languages
after 19 December 1999.
6. The Committee also notes with
satisfaction that Portugal and China reached agreement in March 1998
on the principles underlying the new organization of the legal system,
which guarantee the non-removability of judges and the autonomy and
independence of the judiciary.
C. Principal
subjects of concern and Committee recommendations
7. The Committee notes with great concern that
on the eve of the territory of Macau being returned to the sovereignty
of the Peoples Republic of China, it still remains unclear which laws,
including human rights laws, will be held incompatible with the Basic
Law of the Macau Special administrative Region and therefore become
invalid after 19 December 1999. The Committee wishes to underline the
obligation of the State Party, according to article 2 of the Covenant,
as well as that of the State under whose jurisdiction the territory
will be, to ensure that the population of Macau remain fully protected
under the Covenant after 19 December 1999.
8. The Committee notes the Ombudsman
functions of the High Commissioner against Corruption and Administrative
Illegality, and the petition procedure; however, it regrets the absence
of an independent, statutory Human Rights Commission with a mandate
to monitor the implementation of human rights legislation. Such a Commission
should be established.
9. The Committee is concerned at
the paucity of judges, lawyers and interpreters, which might adversely
affect the administration of justice. Further efforts should be made
to train lawyers and interpreters and give them a specialization in
human rights.
10. The Committee is concerned
that, despite guarantees of equality in the Constitution also reflected
in article 25 of the Basic Law, and in labour legislation, de
facto inequalities continue with regard
to the status of women and their remuneration. Effective measures should
be taken to eliminate such inequalities.
11. The Committee notes reports
that organized crime and, in particular, trafficking in women and prostitution,
persist in Macau. It acknowledges that the Penal Code prohibits organized
crime, but is concerned at the authorities' failure to take action to
protect the victims. Preventive action should be taken to stamp out
trafficking in women and rehabilitation programmes for the victims should
be provided. The victims should be protected and supported by laws and
policies of the State party.
12. The Committee is concerned
at certain aspects of Law 6/97/M (promoting, founding or supporting
a secret association), namely the creation of a vague and insufficiently
defined (or "abstract") offence, and the imposition of an increased
sentence, or conviction, on the basis that the person is a "habitual
offender" or is likely to repeat such an offence. Penal legislation
should be brought into line with articles 14 and 15 of the Covenant,
in particular the prohibition on trying a person or placing him/her
in jeopardy, twice for the same offence (non
bis in idem, article 14, para. 7)
and the ban on laws with retroactive effect (nullum
crimen sine lege, nulla pœna sine lege,
article 15).
13. The Committee is concerned
that the Governments of China and Portugal have not yet reached firm
agreement on the nationality of residents of Macau after 19 December
1999, and that the criteria which will determine which Macau residents
may be regarded as being of Portuguese origin are not yet known. Effective
measures should be taken to safeguard the rights of those who at present
hold dual citizenship.
14. The Committee is also concerned
that no firm agreement has been reached on the transfer of residents
of the Macau Special Administrative Region to face trial in other jurisdictions
in China, or their extradition to other countries in cases where they
may face heavier penalties than those laid down in the Macau Penal Code,
including the death penalty. The Committee reiterates that Macau residents
enjoy the protection of the Covenant and should not lose that protection
by being transferred to other jurisdictions.
15. The Committee is concerned
at the lack of firm agreements guaranteeing freedom of the press and
expression after 19 December 1999. Effective measures should be taken
to guarantee those freedoms for the future.
16. The Committee is concerned
at the paucity of non-governmental human-rights organizations and the
fact that their establishment is not being encouraged.
D. Dissemination
17. The Committee regrets that the public in
general is not adequately informed of the Human Rights Committee's consideration
of the report. The Committee recommends that the State party distribute
the text of its report and these Concluding Observations widely. The
State party's next report should be prepared on an article by article
basis, in accordance with the Committee's new Guidelines (CCPR/C/66/GUI)
and should give particular attention to the issues raised by the Committee
in these Concluding Observations. It sets the date for the next report
on the implementation of the Covenant in Macau as 31 October 2001.
