人权事务委员会审议中国澳门特别行政区的报告(部分翻译)

人权事务委员会

2013年3月19日

人权事务委员会今天结束了对中国澳门特别行政区关于其如何落实《公民权利和政治权利国际公约》条款的首份定期报告的审议。

中国澳门特别行政区行政法务司司长、澳门代表团团长陈丽敏表示,澳门已遵照《公约》和其他国际文书颁布了法令,其中包括以下领域:数据保护、禁毒执法与人口贩运、劳工关系、残疾人、难民、获得法律资讯和法律援助以及保护妇女和儿童。陈女士还提到,根据《基本法》第138条,澳门曾参与缔约的国际协定仍适用于中国澳门特别行政区,即便中国大陆并非缔约方。中国澳门特别行政区政府致力于有效落实《公民权利和政治权利国际公约》,并继续坚持行政、加强善政、完整性和参与公共事务中以人为本原则的目标。

在讨论期间,委员会专家提出了关于落实《公约》以及需要额外立法的条款的问题。至于1999年对《公约》第12条和第13条提出的保留,如今是否仍有必要,或是可以撤销?专家询问:澳门是否将按照《巴黎原则》设立人权机构?廉政专员的任务授权和廉政公署实际上是否保护了与腐败无关的人权问题?至今已进行了多少次调查?专家还针对与非政府组织一同设立的委员会提出疑问:鉴于非政府组织据称实质上以政党形式存在,它们的独立性达到何种程度?

中国澳门特别行政区代表团的代表来自行政法务司、澳门驻世界贸易组织经济贸易办事处、法律改革及国际法事务局、社会工作局、人权委员会秘书处、保安司司长办公室、劳工事务局、治安警察局、新闻局研究及推广厅、法律改革及国际法事务局国际关系事务处、劳工事务局研究及资讯厅以及新闻局。

陈女士在结语中感谢能与委员会进行公开而坦诚的对话。代表团认真对待委员会的建议,并将按照《公约》所拟,继续努力保护中国澳门特别行政区居民的人权。

委员会主席奈杰尔·罗德利在结语中表示,《基本法》的解读仍需服从中华人民共和国常务委员会这一现状似乎不同寻常,澳门应有相应立法机关来解读其法条。至于普选问题,尽管澳门已有公共磋商,但并无指向该目标的显著推动力,这一点似非寻常。人口贩运和性交易问题仍未解决,但代表对此予以认真的回复,表现积极。总而言之,罗德利先生认为这是一次精彩的对话。

委员会将于3月28日(星期四)会议闭幕时发布关于中国澳门特别行政区报告的结论性意见和建议。

委员会下一次公开会议将于今日下午3点召开,届时开始审议秘鲁的第四次定期报告(CCPR/CO/70/PER)。

Presentation of the Report

AMBASSADOR LIU ZHENMIN, Permanent Representative of China to the United Nations Office at Geneva, said the Government of the People’s Republic of China had restored its sovereignty over Macau, on 20 September 1999, and had established the Macao Special Administrative Region of China in accordance with the Constitution of the People’s Republic of China. Under the “one country, two systems” policy, Macao Special Administrative Region of China enjoyed a high degree of autonomy and responsibility over its international affairs; and it counted with its own executive and legislative powers. The experience of the past 13 years had attested to the success of the “one country, two systems” approach. China was not yet a party to the International Covenant on Civil and Political Rights but had, in accordance with the “one country, two systems” principle, transmitted to the Committee the initial report of the Macao Special Administrative Region of China in 2011.

FLORINDA CHAN, Secretary for Administration and Justice and Head of the Delegation of the Macao Special Administrative Region of China, presenting the report (CCPR/C/CHN-MAC/1), recalled that in accordance with Article 138 of the Basic Law of Macao Special Administrative Region of China, international agreements to which Macao had been party to remained applicable to Macao Special Administrative Region of China even if China was not yet a party to them. Ms. Chan said that Macao Special Administrative Region of China enjoyed a sui generis status and was able to maintain and develop its international relations and to conclude accords with States and international organisations. Macao Special Administrative Region of China had an area of approximately 30 square kilometres and 582,000 inhabitants as of 2012. In 2005, the Historic Centre of Macao Special Administrative Region of China had been inscribed on the United Nations Educational, Scientific and Cultural Organization’s World Heritage List.

The Government of the Macao Special Administrative Region of China was committed to the effective implementation of the International Covenant on Civil and Political Rights and, for the past 13 years, since the return of Macao Special Administrative Region of China to the People’s Republic of China, social development had been implemented on a gradual and steady progress with the joint effort of the population of the Macao Special Administrative Region of China. The Social Security Fund and access to education had been upgraded, including the implementation of free 15-year basic education and financial subsidies to local students. The delivery of medical care for seniors, children, students and persons with disabilities had been improved; and a food safety centre and food bank had been set up, along with public houses schemes.

In order to promote a public understanding of the protection of human rights, human rights training and public awareness campaigns had been undertaken in Chinese, Portuguese and English. Ms. Chan also indicated that legislation had been enacted to comply with the Covenant and other international instruments, including in the field of data protection, drugs enforcement and human trafficking, labour relations, persons with disabilities, refugees, access to law and legal aid and protection of women and children. A number of institutions had been established to promote, monitor and safeguard human rights. The Government continued to uphold the aim of a people-oriented principle in its administration, strengthening good governance, integrity and participation in public affairs.

CHU LAM LAM, Director of the Law Reform and International Law Bureau of the Macao Special Administrative Region of China Delegation, highlighted responses to key questions on the list of issues identified by the Committee in September 2012, and said that the provisions of the Covenant continued to be in force and were implemented through the legislation of Macao Special Administrative Region of China. International treaties were enabled by means of “incorporation”, and people could directly invoke the treaties as a means of standing for their own rights and ascertaining the relevant obligations. The rights of Chinese nationals of Macao Special Administrative Region of China who originally held Portuguese travel documents had not been diminished after the handover and were entitled to the rights and freedoms of the residents of Macao Special Administrative Region of China, pursuant to the Basic Law and relevant provisions.

Ms. Lam indicated that Macao Special Administrative Region of China upheld the freedom of the press, speech and publication after the handover. In fact, the media had continued to grow after the handover and the number of newspapers in Chinese had increased from eight to ten; there had also been an increase in the number of Portuguese newspapers and three English papers had been founded. Media provided coverage on current affairs and political issues and had enhanced its role of monitoring the Government. In order to promote family harmony and to protect the rights of women, minors, the elderly and persons with disabilities, the Government was drafting a law on the prevention of domestic violence and a legal framework for the protection of the elderly. Elderly people received a pension and could apply to the Social Welfare Bureau for subsidies.

Certain non-governmental organizations also provided residential facilities, home care services, and other community support services for those in need. The Government prohibited the imposition of all forms of corporal punishment on children and made it punishable under the criminal code. The adoption of penalties harming students’ mental or physical integrity and their personal dignity by schools was also prohibited. The Young Offenders Institute arranged pre-entry training programme for new staff and provided ongoing training for staff. Regarding non-discrimination rights, the Labour Affairs Bureau conducted routine inspections in work places and incidents of discrimination against local or non-resident workers would be prosecuted; however, no complaints had been reported to the Bureau so far.

Legislation to combat terrorism and the financing of terrorism had been adopted and did not affect the protection of human rights. Anyone suspected of these crimes would be entitled to guarantees as part of the criminal procedure, such as the right to appeal, habeus corpus, the right to compensation for illegal arrests, and the right to equal, fair and public hearings. The Criminal Code provided for criminal penalties for acts of sexual exploitation and sexual slavery against women. Legislation on labour relations safeguarded the principle of equal remuneration for work of equal value. The Government funded women’s shelters and the police and Health Bureau had set up 24-hour hotlines for victims. Efforts had been strengthened to combat trafficking in persons and the provision of assistance to victims, in order to reintegrate them into society. Non-governmental organizations were encouraged and already 5,605 organizations had been registered.

Questions by the Experts

WALTER KAELIN, Committee Expert and Rapporteur for the Report of Macao Special Administrative Region of China, recalled that the report had been due in 2001 and, while regretting the late submission, Mr. Kaelin welcomed the opportunity to have more contact with Macao Special Administrative Region of China. Mr. Kaelin wished the Committee had heard more about the challenges faced by the Government in implementing the Covenant and said that many issues raised in 1999 had been addressed in the delegation’s report. In relation to the reference to “incorporation” and individuals’ capacity to directly invoke the Covenant to uphold their rights, to what extent was the Covenant directly applicable and which provisions needed implementing further legislation. Had such laws had been enacted?

Mr. Kaelin recalled that reservations to Articles 12 and 13 in the Covenant had been declared in 1999 and inquired whether these reservations were still necessary. Would a human rights institution be set up in accordance with the Paris Principles? Mr. Kaelin inquired whether the mandate of the Ombudsman against Corruption and the Commission against Corruption actually defended aspects of human rights not linked to corruption, how many investigations had there been undertaken and were these bodies independent? In terms of commissions set up with non-governmental organizations, to what extent were these independent, since it was reported that non-governmental organizations allegedly existed as de facto political parties? Mr. Kaelin noted that no firm agreement had been reached concerning residents of Macao Special Administrative Region of China who could be transferred to other regions in mainland China for trial, including those facing death penalty. The Expert inquired about the status of these cases, were transfers taking place and whether offenders could be transferred even if they would face death penalty?

Another Expert congratulated the delegation for the presentation of the report. Regarding anti-terrorism legislation, how were these laws applied and how did they affect those trying to enter the country? In relation to expulsions and deportations, had individuals been deported under the pretext of suspicion of terrorism and did the law on national security protect human rights in the context of a state of emergency? What rights were considered non-dirigible? Concerning the situation of victims of sexual violations and exploitation, where there any statistics on the number of women and children affected? Had investigations been carried out? What were the relevant immigration policies regarding sexual violations?

Another Expert asked about Law 9 of 2002, which gave far reaching powers to the police. While the law had never been used, was further information available concerning legal safeguards for persons who could be subject to monitoring of electronic communications? Would these people be able to appeal a verdict? Concerning youth offenders confinement was the last resort but, in practice, how many youth offenders were there and how many had been deprived of their liberty? What were the alternatives used? In relation to gender equality, an Expert asked about the situation concerning equal pay for men and women. The report stated that Macao Special Administrative Region of China adhered to the International Labour Organization Convention 1951 on equal remuneration and there were laws against discrimination. With regards to the private sector, however, the report indicated that there were still some gaps in remunerations. Could the delegation give an idea of the share of female versus male workers in different sectors like academia? Would legislation be enacted to compensate the loss of pay for women who decided to stay at home to take of children? The Expert also asked why the Labour Affairs Bureau had so far received no complaints.

Regarding rape, legislation provided for sentences between three and twelve-years long, with the possibility of aggravating circumstances. Regarding domestic violence, what was the status of the drafting of a law? Experts noted that, between 2008 and 2012, there had been a drop from 239 to 165 in cases of domestic violence, and inquired about the reasons for this decrease. Regarding sexual harassment, the Committee on the Elimination of Discrimination against Women had asked Macao Special Administrative Region of China to consider legislation against sexual harassment, was such a law being considered? Regarding solitary confinement, for a maximum of one month, detainees would also receive a warning in writing and the right to appeal. Was data available on prison population and disaggregated data available by categories of prisoners and age? Were there figures available regarding prisoners on solitary confinement and other disciplinary measures?

The Government would do well, an Expert noted, to reconsider the law on solitary confinement which had been criticized by the Committee against torture. Chinese and Portuguese were both used for the drafting of laws and for court proceedings in Macao Special Administrative Region of China. Were people truly bilingual or was one language gaining ground? Another Expert asked if there were cases where courts have had to call on the central body in the People’s Republic of China to help determine a decision and whether, in these cases, human rights had been compromised?

Responses by the Delegation

Regarding the establishment of an independent human rights commission, the head of the delegation said that under existing law, there was ample protection of human rights. The Ombudsman and commission on a personal data provided guarantees; and there was a growing number of non-governmental organizations overseeing the protection of human rights. The rights contained in the Covenant had been disseminated through various bodies and the Government’s performance was also monitored by the media and there was no need to establish another human rights commission. Law 101/99/M guaranteed the translation of either Portuguese or Chinese for residents and about 90 per cent of residents spoke Chinese. Even so, the Government spent significant resources to ensure Portuguese speaking residents had equal access to information. The Office of Administration and Justice and cooperative projects with the European Union allowed for training in Portuguese. Regarding the application of human rights conventions, in the hierarchy of the law, the first layer was the Basic Law, followed by International Convention Law and then Ordinary Law. International Convention Law superseded Ordinary Law, and there had been no conflict between these laws so far.

Provisions in the criminal code, specifically article 171, allowed for the punishment of sexual harassment in the workplace. However, there was no provision in the law against sexual harassment as an autonomous crime. According to the law, it was not possible to expel individuals to mainland China since there was no agreement with China on the issue. Regarding terrorism, internal security laws prescribed the circumstances under which a person could be refused entry into Macao Special Administrative Region of China. Suspects who were classified on an Interpol list or who, according to United Nations Securities resolutions, were considered a threat to security were not allowed to enter Macao Special Administrative Region of China. Regarding states of emergency, the imposition of restrictions on rights could only be ordered for 48 hours: in order to allow for police surveillance, to seize arms temporarily or to expel suspicious persons; and these measures did not contravene the Covenant. Non-dirigible rights had to be respected, for example, no one could be subjected to torture; and only a court order could allow for electronic monitoring of a crime suspect.

There were 1,112 prisoners in Macau Special Administrative Region of China. Regarding the Basic Law and Article 143, the Standing Committee of the National People’s Congress of the People’s Republic of China and the courts of Macao Special Administrative Region of China shared the power of interpretation. So far, no situation had arisen where the National People’s Congress had been consulted. In order to prevent domestic violence and protect victims, a draft law was currently being considered and it included a clause providing for counselling for the perpetrators. In 2012, only one case of domestic violence against a child had been reported. Last year, the Government had implemented public awareness campaigns on children’s’ rights. From 2012, in cooperation with non-governmental organizations and civil society, campaigns promoting a harmonious family life, encouraging parents not to use corporal punishment on their children, had been implemented. In 2012, women accounted for 48 per cent of the labour force and for 41 per cent in the civil service. Forty-seven per cent of teachers were women and over 50 per cent of women worked in legal aid and a little less worked for the police department.

Questions by the Experts

WALTER KAELIN, Committee Expert and Rapporteur for the Report of Macao Special Administrative Region of China, inquired about the human rights institution and wondered whether current mechanisms were sufficiently independent. Mr. Kaelin also asked about the human rights role of the anti-corruption office. Were the reservations about the Covenant being reconsidered?

Another Expert asked about 10-year-old statistics concerning female business ownership, data showed that only 1.3 percent of business owners were women, was this issue being addressed?

Responses by the Delegation

FLORINDA CHAN, Secretary for Administration and Justice and Head of the Delegation of the Macao Special Administrative Region of China, said that there were 28 judges in the court of first instance and, among them, 14 had been trained by the Legal and Judicial Centre of the Macao Special Administrative Region of China. Five had been recruited from Portugal and nine had been trained during the time before the handover. Over the past 13 years, the Judicial Centre had organised three training sessions and appointed 14 magistrates. A fourth course was ongoing and 12 intern magistrates would be appointed to courts or to the Public Prosecution Office, which counted with 34 judges, four of which had been recruited from Portugal. As of December 2012, the total number of magistrates was 74. In 2012 16,189 cases had been brought to the first instance court and this meant that each judge handled over 500 cases.
New measures had been undertaken to deal with juvenile crime. In 2008, there had been 422 juvenile offenders but only 8 percent had been imprisoned. In 2012 there had been 116, and 18 people had received the most severe sentence. Solitary confinement was never imposed for more than a month and it was being reconsidered. Regarding reservations to Articles 12 and 13 of the Covenant, the delegation stated that the Vienna Convention on the Law of Treaties allowed States parties to make reservations provided they were not contrary to the treaty’s objective. In relation to the quality of translation in the courts, various measures had been taken, including long-term training programmes and cooperation with the European Union.

Regarding bilateral agreements on criminal matters between Macao Special Administrative Region of China and the Chinese Government, Law 6-2006 provided guidance for the negotiations. Under the Basic Law of Macao Special Administrative Region of China, the Chief Executive had dual functions as Head of State and Government or Prime Minister and, as Head of State, the Chief Executive nominated the Ombudsman. The Commission against Corruption was an independent and legal body acting against corruption incidents and it also served as an Ombudsman to safeguard human rights in accordance with Article 3 of 2000. In this capacity, the Ombudsman could make inquiries, carry out on-site visits, issue recommendations to improve human rights, and make legal amendments, as well as establishing public awareness campaigns.

Regarding questions about the situation of non-governmental organizations, the Government respected and would continue to respect their independence. Concerning the issue of fostering female entrepreneurship, there was a non-profit business association for women entrepreneurship set up to foster cooperation among members and to explore business opportunities. It counted with more than 40 board members and played an important role in the business community. The Government also provided subsidies, zero interest loans, and guarantees for loans. A service centre had also been set up in order to provide counselling and consultation services to simplify administrative procedures.

Questions by the Experts

An Expert asked about the issue of trafficking in persons and noted the passing of Law 6 of 2008 on the subject, was there more information on the implementation of this law? What about the number of investigations and whether officials had been investigated for aiding trafficking? The Expert wondered about compensation schemes for victims and judicial measures to deal with these cases. The delegation had said no discrimination complaints had been brought to the Labour Affairs Bureau and Experts asked whether migrant workers were unaware of their rights or afraid of repercussions. Many migrant workers had no formal contracts and were vulnerable to abuse and intimidation, could the delegation make any comments in this regard? Was legislation regarding migrants truly non-discriminatory and would the Government reconsider its six-month re-entry ban on workers terminating their contracts? Migrants were reported to earn less than half the wages of local workers, was this true? In cases of unfair dismissal, was legal recourse available to migrant workers? In terms of a statutory minimum wage, what was the status of discussions on reforming this? For part-time workers, was legislation being considered to formulate a legal framework to protect against discrimination and abuse?

Another Expert asked about sexual exploitation and trafficking. Some victims were forced to work to pay their debts and, among other measures, articles had been included in the criminal code. In this context, Experts inquired about the application of these laws and the sentences handed down to those found guilty of running these networks. Experts also inquired about the process through which the report of Macao Special Administrative Region of China had been drafted? Experts wondered whether the delegation had consulted with and used information provided by non-governmental organizations.

Mr. Kaelin asked for details concerning cases where a strike or demonstration might be seen as an attempt to restrict the functions of the Government as stipulated by legislation; and indicated that these broad terms in the law could be used to limit freedom of opinion. The Expert inquired, in this context, whether the entry of journalists from Hong Kong had been restricted on the basis of these provisions. Was there a culture of self-censorship among members of the media? Another Expert welcomed reforms of the Election Committee tasked with the election of the Chief Executive, allowing for an increase from 300 to 400 members. What were the next steps to allow citizens to participate in periodic elections? An Expert asked about universal and equal suffrage, was the Government thinking about a gradual timeline for its institution? Another Expert asked about the imposition of corporal punishment on children and whether there data regarding instances of intimidation or corporal punishment was available. With regards to the issue of freedom of expression for the press, how was the government funding allocated to members of the media? In relation to political parties, how were these registered and were there problems if they registered as limited liability companies? What procedures were open to citizens to challenge administrative decisions in cases where the decision ran counter to the provisions of the Covenant?

Responses by the Delegation

A member of the delegation said that any decisions about the structure and methodology of the legal system of Macao Special Administrative Region of China had to be approved by the People’s Republic of China. Legislative seats had been increased from 23 in 1999 to 33 seats in 2013, a gradual political process consistent with the Basic Law of Macao Special Administrative Region of China. Under law 2/99/M, the only condition for the registration of political required them to have at least 200 permanent residents of Macao Special Administrative Region of China as members. The Government was committed to the fight against trafficking and had implemented a number of inter-institutional and multi-disciplinary efforts. A committee dealing with this task had been enlarged and counted with members from different branches, including security, justice, social affair and finance and economy. Concerning measures to tackle migration, border checkpoints had been reinforced, high-risk countries had been identified, leaflets had been distributed at immigration offices, and information campaigns had been set up at immigration services as well as hospitals in many languages.

Routine inspections had been carried out in saunas, massage bars, and other entertainment establishments. There were two 24-hour hotlines operated by the police for the reporting of any crimes and victims received immediate health, legal and counselling support. Non-governmental organizations played a crucial role in identifying and preventing instances of trafficking. Training for police and immigration officers had been in place since 2008 and police protection was provided to victims whose lives were in danger. Three shelters for victims of trafficking had also been put in place. The delegation also indicated that victims often did not want to stay in Macao Special Administrative Region of China until the end of judicial proceedings required to invoke their rights to remedies and compensation. There was no special public prosecutor dealing with the issue of human trafficking. Responding to questions concerning the number of convictions, the delegation informed that two people had been sentenced to jail in 2008 and seven people had been given 13-year sentences in 2013. A number of cases were being investigated, but it was up to the Public Prosecutors Office to make an accusation according to evidence. No complaints of police complicity had been received so far and police community programmes were in place to identify possible victims of sexual exploitation.

Regarding the law on national security, there had been no prosecutions so far. The law stipulated that non-resident workers enjoyed the same rights as resident workers and were also allowed to choose their occupations freely. The delegation indicated that, over a 10-year period, only 586 had been refused entry on the grounds that they could cause public disturbances and endanger security. In response to questions concerning non-violent demonstrations, the delegation indicated that these were permitted and police videotaping was not targeted to specific persons. There had been only a few cases of police misconduct and there were internal mechanisms to investigate them. Journalists were free to report without restriction, and the freedom of the press remained vigorous and was guaranteed institutionally. While the population of Macao Special Administrative Region of China was under 600,000, there were 16 daily newspapers, in Portuguese, Chinese and English; there was one TV and two radio stations, one cable station, and four satellite broadcasting companies based in Macao Special Administrative Region of China; and, at least, 14 newspapers were imported from Hong Kong every day.

In 2010, there had been 504 assemblies and 18 demonstrations and, in 2012, there had been 444 assemblies and 26 demonstrations. In Macao Special Administrative Region of China, the right to freedom of association was guaranteed. Non-governmental organizations had been consulted in the preparation of the delegation’s report to the Committee and a draft had been published on the Internet.

Questions by the Experts and Responses

One of the Experts inquired about the Election Committee, how many members were drawn from the ranks of the Legislative Council? The Expert also asked whether it was correct, regarding future reforms of the Basic Law, that approval would not be required by the People’s Republic of China.

In response, the delegation indicated that constitutional development would be decided by the Government of the People’s Republic of China.

Concluding Remarks

FLORINDA CHAN, Secretary for Administration and Justice and Head of the Delegation of the Macao Special Administrative Region of China, in concluding remarks, thanked the Committee for an open and frank dialogue. Ms. Chan said the delegation took the Committee’s recommendations seriously and continued efforts would be made in order to protect the human rights of the residents of Macao Special Administrative Region of China as stipulated in the Covenant.

NIGEL RODLEY, Chairperson of the Committee, in his concluding remarks, inquired about the exact role played by the anti-corruption commission. The interpretation of the Basic Law by the Standing Committee of the People’s Republic of China seemed odd, that a legislature should be responsible for interpreting its own legislation. Concerning universal suffrage, it seemed strange that despite pubic consultation there had been no apparent push towards it. In terms of freedom of expression, it would be hard for the Committee to understand how Hong Kong journalists could constitute a threat to national security. While trafficking and the sex trade were still issues, the seriousness of the delegation’s response had been positive and Mr. Rodley said that it had been an excellent dialogue.
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For use of the information media; not an official record