2012 Country Reports on Human Rights Practices - China: Macau
|Publisher||United States Department of State|
|Publication Date||19 April 2013|
|Cite as||United States Department of State, 2012 Country Reports on Human Rights Practices - China: Macau, 19 April 2013, available at: http://www.refworld.org/docid/517e6e5018.html [accessed 25 July 2016]|
Macau is a Special Administrative Region (SAR) of the People's Republic of China (PRC) and enjoys a high degree of autonomy, except in defense and foreign affairs, under the SAR's constitution (the Basic Law). Chief Executive Fernando Chui Sai-on took office in 2009, after his selection by a 300-member Election Committee. Security forces reported to civilian authorities.
Three prominent human rights abuses reported during the year were: limits on citizens' ability to change their government, constraints on press freedom, and failure to enforce laws regarding working conditions and workplace abuses.
Trafficking in persons remained a problem, although authorities were building capacity to pursue trafficking cases. There were concerns that national security legislation, passed in 2009 in accordance with Article 23 of the Basic Law, could compromise various civil liberties, but by year's end prosecutors had brought no cases based on the 2009 legislation.
The government took steps to prosecute and punish officials who committed abuses. There was no impunity for government officials.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports that the government or its agents committed arbitrary or unlawful killings.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices, and there were no reports that government officials employed them.
There were seven cases involving police mistreatment by off-duty officers in the first half of the year; five involved assault and two were intimidation cases. At year's end the Procuratorate was still investigating the cases. The Commission for Disciplinary Control of the Security Forces and Services of Macau (CFD) received two complaints of police mistreatment but dismissed both cases due to lack of evidence. During the first half of the year, the Commission against Corruption (CAC) received one complaint of police mistreatment, which it determined was legally unsubstantiated.
The government reported that one detainee died while in police custody during the year. At year's end the Procuratorate was still investigating the death, which police alleged was a suicide. In addition, in the first half of the year policed received three complaints alleging offences committed by police officers against persons in custody. Although none of these complaints resulted in disciplinary proceedings, police transferred two of them to the Procuratorate, which rejected one, while the other remained pending. Neither the CFD nor the CAC received any complaints alleging assault by police officers against persons in custody in the first half of the year.
In the first half of the year, local authorities received one complaint that police officers abused a person not in their custody. They did not forward the case to the Procuratorate or initiate disciplinary proceedings. In the same period, the CFD also recorded one allegation of a police offence against persons not in custody, which remained pending. The CAC did not receive any allegations of police offenses against persons not in custody in the first half of the year.
Prison and Detention Center Conditions
Prison and detention center conditions generally met international standards, and the government permitted monitoring visits by independent human rights observers.
Physical Conditions: The SAR has a maximum prison capacity of 1,341 persons, and the occupancy rate was approximately 81 percent during the year. In the first half of the year, the number of inmates who were 16 (the age of criminal responsibility) and older was 1,092; of these, 917 were men and 175 women. Offenders between the ages of 12 and 16 were subject to an "education regime," which could include incarceration depending on the offense. During the first half of the year, authorities held 26 youths in the Youth Correctional Institution. Press reports indicated that at times bed shortages forced as many as six to seven female inmates to sleep on the floor. The SAR reported that prisoners had access to potable water.
Administration: Ombudsmen are able to serve on behalf of prisoners and detainees. The government's recordkeeping procedures were adequate. The government increased its use of alternative sentencing for nonviolent offenders. Authorities allowed prisoners and detainees reasonable access to visitors and permitted religious observance. The law allows prisoners and detainees to submit complaints to judicial authorities without censorship and to request investigation of alleged deficiencies, and judges and prosecutors made monthly visits to prisons to hear prisoner complaints.
Monitoring: According to the government, no independent human rights observers requested or made any visit to the SAR's only prison, the Macau Prison. Judges and prosecutors visited the Macau Prison monthly and the Youth Correctional Institution (for offenders between the ages of 12 and 16) every three months.
Improvements: The authorities expanded the women's section of the prison with a further 100 beds.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, and the government generally observed these prohibitions.
Role of the Police and Security Apparatus
Civilian authorities maintained effective control over the Public Security Police (general law enforcement) and Judiciary Police (criminal investigations), and the government has effective mechanisms to investigate and punish official abuse and corruption. There were no reports of impunity involving the security forces during the year.
Arrest Procedures and Treatment While in Detention
Authorities detained persons openly with warrants issued by a duly authorized official based on sufficient evidence. Detainees were allowed access to a lawyer of their choice or, if indigent, to one provided by the government. Detainees were allowed prompt access to family members. Police must present persons in custody to an examining judge within 48 hours of detention. The examining judge, who conducts a pretrial inquiry in criminal cases, has wide powers to collect evidence, order or dismiss indictments, and determine whether to release detained persons. According to the government, courts should try defendants within the "shortest period of time." The Procuratorate's investigations should end with charges or dismissal within eight months, or six months when the defendants are in detention; the pretrial inquiry stage must be concluded within four months, two months if there are detained defendants. By law the maximum limits for pretrial detention range from six months to three years, depending on the charges and progress of the judicial process. Judges often refused bail in cases where sentences could exceed three years.
Law enforcement officials received three complaints accusing police officers of offenses toward persons in custody in the first half of the year. Officials brought disciplinary proceedings against the officers in both cases; one case was closed, and one awaited the initiation of criminal proceedings at year's end. There was one complaint in the first half of the year that a police officer assaulted a person in custody.
e. Denial of Fair Public Trial
The law provides for an independent judiciary, and the government generally respected judicial independence in practice. During the year the president of the Court of Final Appeal, the SAR's highest court, reminded attorneys to respect article 8 of the lawyers' code of ethics, which stipulates that lawyers should not publicly discuss through mass media or comment upon, or encourage others to discuss or comment upon, cases in front of the courts to avoid possible influences on judicial independence.
The courts may rule on matters that are the responsibility of the PRC government or concern the relationship between central authorities and the SAR, but before making their final judgment, which is not subject to appeal, the courts must seek an interpretation of the relevant provisions from the National People's Congress (NPC) Standing Committee. When the Standing Committee makes an interpretation of the provisions concerned, the courts, in applying those provisions, "shall follow the interpretation of the Standing Committee."
The law provides for the right to a fair trial, and an independent judiciary generally enforced this right. A case may be presided over by one judge or a group of judges, depending on the type of crime and the maximum penalty involved.
Under the law defendants enjoy a presumption of innocence, have access to government-held evidence relevant to their cases, and have a right to appeal. The law provides that trials are to be public and by jury except when the court rules otherwise to "safeguard the dignity of persons, public morality, or to ensure the normal functioning of the court." Defendants have the right to be present at their trials, confront witnesses, and consult with an attorney in a timely manner. Public attorneys are provided for those who are financially incapable of engaging lawyers or paying expenses of proceedings. The law extends these rights to all residents. There were no reports of defendants lacking adequate time or facilities to prepare their defense. There were no reports of defendants being compelled to testify or confess guilt.
The judiciary provided citizens with a fair and efficient judicial process; however, due to an overloaded court system, a period of up to a year often passed between the filing of a civil case and its scheduled hearing.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
There is an independent and impartial judiciary for civil matters, and citizens have access to a court to bring lawsuits seeking damages for, or cessation of, a human rights violation.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the government generally respected these prohibitions in practice. The Office for Personal Data Protection acknowledged a continuing increase in complaints and inquiries regarding data protection.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the government generally respected these rights in practice.
The law criminalizes treason, secession, subversion of the PRC government, and theft of "state secrets," as well as "acts in preparation" to commit these offenses. The crimes of treason, secession, and subversion specify the use of violence, and the government stated that the law would not infringe on peaceful political activism or media freedom.
Freedom of Press: The independent media were active and expressed a wide range of views, and international media operated freely. Major newspapers were heavily subsidized by the government and tended to closely follow the PRC government's policy on sensitive political issues, such as Taiwan; however, they generally reported freely on the SAR, including criticism of the government.
Violence and Harassment: Some journalists who wrote disparagingly of the government complained about disciplinary actions, such as temporary suspension, delayed promotion, and assignment to cover less important stories.
Censorship or Content Restrictions: Activists raised concerns over media self-censorship, particularly because news outlets and journalists worried that certain types of critical coverage might limit government funding. Activists also reported that the Macau government had co-opted senior media managers to serve in various consultative or election committees, which also resulted in self-censorship. Journalists expressed concern that the government's limiting of news releases about its own activities and its publishing of legal notices only in preferred media outlets influenced editorial content. In September, following public pressure, the government withdrew portions of a controversial media bill that would establish a "press accountability board" with a nebulous mandate for enforcing journalistic ethics.
There were no government restrictions on access to the Internet or reports that the government monitored e-mail or Internet chat rooms.
At least 40 percent of the population had an Internet subscription. As of October, according to the Statistics and Census Service, there were 227,682 Internet subscribers in a population of 576,700. This total did not take into account multiple Internet users for one subscription, nor did it factor in those who have access to the Internet through mobile devices.
The law criminalizes a range of cybercrimes and empowers police, with a court warrant, to order Internet service providers to save and then provide a range of data. Some legislators expressed concern that the law granted police the authority to take these actions without a court order under some circumstances.
The media reported that several Web sites, among them Facebook, YouTube, and Skype, which are blocked on the mainland, were blocked on the government-provided free WiFi service. The government denied any intention to restrict access, stating that the main problem was available bandwidth and pointing out that the mobile version of Facebook was available. Twitter, which is banned on the mainland, was available on the service. Activists reported they freely used Facebook and Twitter to communicate. However, activists also reported that the government had installed enterprise-grade software capable of censoring, decrypting, and scanning secured transmissions on its free WiFi service without notifying users.
Academic Freedom and Cultural Events
There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law provides for freedom of assembly, and the government generally respected this right in practice. The law requires prior notification, but not approval, of demonstrations that involve the use of public roads, public places, or places open to the public. In cases in which authorities tried to restrict access to public venues for demonstrations or other public events, the courts generally ruled in favor of the applicants. Police may redirect march routes, and organizers have the right to challenge such decisions in court.
Activists reported that police routinely attempted to intimidate demonstrators by ostentatiously taking videos of them and advising bystanders not to participate in protests. Activists also stated that authorities gave orders to demonstrators verbally rather than through written communication, which made it difficult to challenge their decisions in court. Some organizers complained that police set up "restricted security zones" without notifying participants, which led to the arrest of at least one protester for intruding a restricted area. The Workers' Self-Help Union reported that officers harassed its members during demonstrations and while members were gathering petition signatures.
On June 4, approximately 700 persons participated in a vigil to remember the 1989 Tiananmen Square massacre. Organizers stated that it was the largest number of participants in the annual commemoration in 10 years. On October 1, at least 2,000 protesters demonstrated, calling for more public housing, less corruption, and more public assistance. Organized by the SAR's seven labor unions, participants in the protests were described by observers as more diverse than in previous gatherings. On December 20, approximately 1,100 people participated in an annual demonstration demanding government attention to social livelihood issues.
Freedom of Association
The Basic Law and the civil code provide for freedom of association. No authorization is required to form an association, and the only restrictions are that the organization not promote racial discrimination, violence, crime, or disruption of public order, or be military or paramilitary in nature. During the first half of the year, the Identification Bureau registered 383 new associations. Of these, it did not issue "proof of adoptable name of association" in 33 cases because the intended group names were the same or similar to registered organizations.
c. Freedom of Religion
See the Department of State's International Religious Freedom Report.
d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
The law provides for freedom internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice. The law prohibits forced exile of permanent residents. Persons denied entry into the SAR have the right to contact their consulate or other representative of their country, to have assistance with language interpretation, and to consult a lawyer. The Immigration Department cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.
The Internal Security Law grants police the authority to deny entry to, or to deport, nonresidents whom they regard under the law as unwelcome, as a threat to internal security and stability, or as possibly implicated in transnational crimes. Legislators and activists alleged that police used this law during the year to deny entry to a Hong Kong prodemocracy activist, a politician, an artist, and a journalist, including on occasions when the purpose of travel was merely tourism or personal business. In the artist's case, he claimed that Macau's Cultural Affairs Bureau had invited him to attend an event, but immigration authorities nevertheless denied him entry. Police declined to discuss the circumstances of individual cases.
According to the International Trade Union Confederation's annual survey of violations of trade union rights, the government denied entry into Macau of labor leaders or democratic activists from Hong Kong. It continued to ban Hong Kong Legislative Council member Lee Cheuk-yan, a prominent labor leader, from entering the SAR. The government maintained that the commander of the Public Security Police "based on the public interest ... may refuse entry of any nonresident whose status is found to be inappropriate."
Protection of Refugees
Access to Asylum: The law provides for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. In theory persons granted refugee status would ultimately enjoy the same rights as other SAR residents. However, the UNHCR reported that the SAR had not granted any asylum seekers refugee status through year's end. Pending eventual final decisions on their asylum claims, the government registered asylum seekers and provided protection against their expulsion or return to their countries of origin. Persons with pending applications were eligible to receive government support, including basic needs such as housing, medical care, and education for children.
The government has the responsibility to conduct refugee status determinations, but this process appeared to stall during the year, according to the UNHCR. Five applications for refugee status were pending, but their determination would likely take several years to process. One Afghan asylum seeker was in his ninth year of waiting. Paul Pun Chi, secretary general of the Caritas social welfare organization, stated that the process was "long and drawn out" and that the procedures and isolation it entailed pushed applicants into a "hopeless situation."
In December 2011 the Court of Second Instance overturned Chief Executive Chui's June 2010 decision to uphold a Macau Refugees Commission ruling denying, on procedural grounds, refugee status to the family of a Kurdish human rights activist from Syria. The court's unanimous verdict strongly criticized the commission for claiming there was no evidence of Syrian discrimination directed at Kurds and for ignoring a UNHCR report that sided with the asylum seekers. The court returned the case to the commission for reassessment, where it was pending at year's end.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
The law limits citizens' ability to change their government. Only a small fraction of citizens play a role in the selection of the chief executive, who was chosen in 2009 by a 300-member Election Committee consisting of 254 members elected from four broad societal sectors (which have a limited franchise) and 46 members chosen from among the SAR's legislators and representatives to the NPC and Chinese People's Political Consultative Conference.
Elections and Political Participation
Recent Elections: The most recent election, held in 2009 for 12 directly elected seats in the 29-member Legislative Assembly, was generally free and fair.
In August the government approved a bill to increase the number of indirectly elected seats from 10 to 12 and of directly elected seats from 12 to 14. Most observers assessed the move as preserving the status quo rather than as a real political reform. The legislation also increases the number of Election Committee members from 300 to 400. Critics viewed this change as nothing more than expanding the size, rather than broadening the representativeness of the pro-Beijing-dominated body.
There are limits on the types of bills that legislators may introduce. The law stipulates that legislators may not initiate legislation related to public expenditure, the SAR's political structure, or the operation of the government. The political adjustments in August were permitted only because the National People's Congress Standing Committee gave its approval. Proposed legislation related to government policies must receive the chief executive's written approval before it is introduced. The Legislative Assembly also has no power of confirmation over executive or judicial appointments.
A 10-member Executive Council functions as an unofficial cabinet, approving draft legislation before it is presented in the Legislative Assembly. The Basic Law stipulates that the chief executive appoint members of the Executive Council from among the principal officials of the executive authorities, members of the legislature, and public figures.
Political Parties: The SAR has no laws on political parties; politically active groups therefore registered as societies or companies. These groups were active in promoting their political agendas, and those critical of the government did not face restrictions. Such groups participated in protests over government policies or proposed legislation without restriction.
Participation of Women and Minorities: There were four women in the 29-member Legislative Assembly. Women also held a number of senior positions throughout the government, including the secretary for justice and administration, the second-highest official in the SAR government. In January the chief executive appointed the first female judge to the Court of Final Appeal. Fifteen of the SAR's 36 judges were women. The Public Administration and Civil Service Bureau stated that women made up 40 percent of the SAR government, 47 percent of the judiciary, and 57 percent of the senior staff of the Legislative Assembly. There were two members of ethnic minorities in the Legislative Assembly. One Executive Council member was from an ethnic minority, as was the police commissioner general.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for official corruption, and there were few reported instances of officials engaging in corruption.
The CAC investigated the public and private sectors and had the power to arrest and detain suspects. The ombudsman bureau within the CAC reviewed complaints of maladministration or abuse by the CAC. There was also an independent committee outside the CAC, called the Monitoring Committee on Discipline of CAC Personnel, which accepted and reviewed complaints about CAC personnel. In June prosecutors opened a case against two prominent Hong Kong businesspersons charged with bribing public officials and money laundering. The SAR's former public works chief, already in jail on graft convictions, was sentenced to an additional 29 years for corruption and money laundering in relation to dealings with these business persons.
By law the chief executive, his cabinet, judges, members of the Legislative Assembly and Executive Council, and executive agency directors are required to disclose their financial interests upon appointment, promotion, and retirement and at five-year intervals while in the same position.
The law does not provide for public access to government information. However, the executive branch published online, in both Portuguese and Chinese, extensive information on laws, regulations, ordinances, government policies and procedures, and biographies of government officials. The government also issued a daily press release on topics of public concern. The information provided by the legislature was less extensive.
Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of domestic and international groups monitoring human rights generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials often were cooperative and responsive to their views.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
The law stipulates that residents shall be free from discrimination based on race, gender, disability, language, or social status, and many laws carry specific prohibitions against discrimination; the government effectively enforced the law. The law does not address discrimination based on sexual orientation or gender identity.
Rape and Domestic Violence: The law criminalizes rape, including spousal rape, and the government effectively enforced the law. In the first half of the year, police received nine complaints of rape. Police and courts acted promptly on rape cases, arresting four individuals accused of rape.
Although there is not a specific law on domestic violence, laws that criminalize the relevant behaviors, including "mistreatment of minors or spouses," were used effectively by the government to prosecute domestic violence. Various nongovernmental organizations (NGOs) and government officials considered domestic violence against women to be a growing problem. Domestic violence falls under several crimes in the criminal code, including the crime of mistreatment of minors, persons with incapacity, or spouses. These crimes are punishable with imprisonment ranging from one to five years. If mistreatment leads to serious physical injuries or death of the victim, the penalties may be increased to imprisonment of two to eight years in cases involving physical injury and five to 15 years in those resulting in death. During the first half of the year, 164 complaints of crimes related to domestic violence were reported to police. Of these, 123 involved spousal abuse. In February the Women's General Association of Macau released a survey reporting that 80 percent of the women in its shelter had suffered physical, psychological, or sexual abuse. In November the government released the results of its public consultations it conducted in 2011 on a draft bill to combat domestic violence.
The government made referrals for victims to receive medical treatment, and medical social workers counseled victims and informed them of social welfare services. During the first half of the year, the Social Welfare Bureau handled 24 domestic violence cases. The government funded NGOs to provide victim support services, including medical services, family counseling, and housing, until their complaints were resolved. The government also supported two 24-hour hotlines, one for counseling and the other for reporting domestic violence cases.
NGOs and religious groups sponsored programs for victims of domestic violence, and the government supported and helped fund these organizations and programs. The Bureau for Family Action, a government organization subordinate to the Department of Family and Community of the Social Welfare Institute, helped female victims of domestic violence by providing a safe place for them and their children in addition to advice regarding legal actions against perpetrators. A range of counseling services was available to persons who requested them at social service centers. Two government-supported religious programs also offered rehabilitation programs for female victims of violence.
Sexual Harassment: There is no law specifically addressing sexual harassment, unless it involves the use of a position of authority to coerce the performance of physical acts. Harassment in general is prohibited under laws governing equal opportunity, employment and labor rights, and labor relations. There were no complaints of discrimination filed with police, the Public Administration and Civil Service Bureau, or the Labor Affairs Bureau (LAB) in the first half of the year. The CAC received one complaint of gender discrimination, which was dismissed as legally unsubstantiated.
Reproductive Rights: Couples and individuals have the right to decide the number, spacing, and timing of their children as well as the information and means to do so free from discrimination or coercion. Access to contraception, prenatal care, and skilled attendance at delivery and in postpartum care were widely available.
Discrimination: Equal opportunity legislation mandates that women receive equal pay for equal work; however, observers estimated that there was a significant difference in salary between men and women, particularly in unskilled jobs. The law allows for civil suits, but few women took cases to the LAB or other entities. Discrimination in hiring practices based on gender or physical ability is prohibited by law, and penalties exist for employers who violate these guidelines. No complaints of discrimination were filed with police, the LAB, or the CAC.
Birth Registration: In accordance with the Basic Law, children of Chinese national residents of Macau born in or outside the SAR and children born to non-Chinese national permanent residents inside the SAR are regarded as permanent residents. There is no differentiation between these categories in terms of access to registration of birth.
Child Marriage: The minimum age of marriage is 16. Children between the age of 16 and 18 who wish to get married must get approval from their parents or guardians.
Sexual Exploitation of Children: The law specifically provides for criminal punishment for sexual abuse of children and students, statutory rape, and procurement involving minors. The criminal code sets 14 as the age of sexual consent and 16 as the age for participation in the legal sex trade. Child pornography is prohibited by law. During the first half of the year, there were five complaints of sexual abuse of children and nine complaints of sexual acts with minors filed with police. Law enforcement authorities arrested three individuals for sexual abuse of children and eight individuals for sexual acts with minors.
International Child Abductions: The SAR is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Jewish population was extremely small, and there were no reports of anti-Semitic acts.
Trafficking in Persons
See the Department of State's annual Trafficking in Persons Report.
Persons with Disabilities
The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, access to health care, or the provision of other state services, and the government generally enforced these provisions in practice. The law mandates access to buildings, public facilities, information, and communications for persons with disabilities. The government enforced the law effectively. The government built and reconstructed public facilities such as the ferry terminal and overpasses for persons with disabilities. New buses accommodated spaces for passengers with wheelchairs. The Social Welfare Institute was primarily responsible for coordinating and funding public assistance programs to persons with disabilities. There was a governmental commission to rehabilitate persons with disabilities, with part of the commission's scope of work addressing employment. There were no reports of children with disabilities encountering obstacles to attending school.
Although the government has made efforts to address the complaints of individuals of Portuguese descent and the Macanese minority, members of these two groups continued to claim they were not treated equally by the Chinese majority. While they participated in political and cultural circles, some activists claimed businesses refused to hire employees who were not ethnically Chinese.
Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity
There are no laws criminalizing sexual orientation and no prohibition against lesbian, gay, bisexual, and transgender (LGBT) persons forming organizations or associations. There were no reports of violence against persons based on their sexual orientation.
LGBT rights activists organized the SAR's first gay rights protest in December. During the Macau Rainbow Equality Parade, 12 participants protested against the government's decision to remove protection to same-sex cohabitants in its draft antidomestic violence bill. The SAR's civil society groups alleged that the government discriminated against the local LBGT community when it failed to invite them to participate during public consultation on the bill or provide input into its decision to remove same-sex partners from the bill.
Other Societal Violence or Discrimination
The law prohibits discrimination against persons with HIV/AIDS and limits the number of required disclosures of an individual's HIV status. Employees outside medical fields are not required to declare their status to employers. There were anecdotal reports that persons whose status became known, as well as organizations supporting them, faced some forms of discrimination. There were no reported incidents of violence against persons with HIV/AIDS.
Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law, including related regulations and statutory instruments, provides workers the right to form and join unions or "labor associations" of their choice without previous authorization or excessive requirements. However, in order to register as an official union, the government requires an organization to provide the names and personal information of its leadership structure. There is no law specifically defining the status and function of labor unions, nor are employers compelled to negotiate with them. According to the law, employees or job seekers shall not be prejudiced, deprived of any rights, or exempted from any duties on the basis of their membership in an association.
Workers in certain professions, such as the security forces, are forbidden to form unions, take part in protests, or strike. Such groups had organizations that provided welfare and other services to members and that could speak to the government on behalf of their members.
Under the law migrant workers enjoy treatment equal to that of local workers, including the same rights, obligations, and remuneration. All workers, including migrants, have access to the courts in cases of unlawful dismissal, if an employer fails to pay compensation, or a worker believes that his/her legitimate interests have been violated. The law also seeks to protect migrant workers from unfair dismissal by stipulating compensation based on the number of years or days of the work relationship.
Workers have the right to strike, but there is no specific protection in the law from retribution if workers exercise this right. The government asserted that striking employees are protected from retaliation by provisions of the law that require an employer to have justified cause to dismiss an employee.
The law provides that agreements between employers and workers shall be valid, but there is no specific statutory provision giving workers the right to collective bargaining. Independent lawmakers continued to push for the government to introduce a trade union and collective bargaining law.
Workers who believed they were dismissed unlawfully could bring a case to court or lodge a complaint with the Labor Department or the CAC, which also has an Ombudsman Bureau that handles complaints over administrative illegalities. The bureau made recommendations to the relevant government departments after its investigation.
There were no reports that the government failed to respect strike provisions during the year. Although strikes, rallies, and demonstrations were not permitted in the vicinity of the chief executive's office, the Legislative Assembly, and other key government buildings, some protests occurred near government headquarters.
While laws exist protecting worker rights, the government did not respond to official complaints on working conditions or abuse, nor did the government punish employers that withheld pay when employees made such complaints. In addition, the LAB could charge the union a fee to process such complaints. Union leaders also claimed that the government maintained a "blacklist" of labor "agitators."
Even without formal collective bargaining rights, companies often negotiated with unions, although the government regularly acted as an intermediary. Pro-PRC unions traditionally have not attempted to engage in collective bargaining. Migrant workers do not have the right to bargain collectively.
b. Prohibition of Forced or Compulsory Labor
The law prohibits forced or compulsory labor, and there were no reports that such practices occurred. See the Department of State's annual Trafficking in Persons Report.
c. Prohibition of Child Labor and Minimum Age for Employment
A chief executive's order prohibits minors under the age of 16 from working, although minors between the ages of 14 and 16 can be authorized to work in "exceptional circumstances" if they obtain a health certificate to prove they have the "necessary robust physique to engage in a professional activity." The decree does not define "exceptional circumstances." Some children reportedly worked in family-operated or small businesses. Local laws do not establish specific regulations governing the number of hours these children can work, but International Labor Organization conventions were applied. The law governing the number of working hours (eight hours a day, 40 hours a week) was equally applicable to adults and minors, but minors cannot work overtime hours.
Minors are forbidden from certain types of work, including but not limited to domestic work, any employment between 9 p.m. and 7 a.m., and at places where admission of minors is forbidden. Employers are required to conduct an assessment of the nature, extent, and duration of risk exposure at work before commencing labor relations. The Labor Department enforced the law through periodic and targeted inspections, and violators were prosecuted. Employers are also obligated to provide professional training and working conditions appropriate to a minor's age to prevent situations that undermine his/her education and that can endanger his/her health, safety, and physical and mental development.
d. Acceptable Conditions of Work
Local labor laws establish the general principle of fair wages and mandate compliance with wage agreements. There is no mandatory minimum wage except for government-outsourced security guards and cleaners and foreign domestic workers. The law also sets maximum hours, rest days, statutory holidays, and premium pay rules. Employers can dismiss staff "without just cause" provided that they provide economic compensation, indexed to an employee's length of service. Local law requires employers provide equal pay for equal work, regardless of gender.
All local workers, whether under a term contract or an indefinite contract, are entitled to such benefits as specified working hours, weekly leave, statutory holidays, annual leave, and sick leave. The law does not define "temporary contract" or "short-term contract." It states only that a labor contract may be either for a defined term or of indefinite duration. Cases of labor-related malpractices are referred to the LAB.
Labor legislation provides for a 48-hour workweek (many businesses operated on a 40-hour workweek), an eight-hour workday, paid overtime, annual leave, and medical and maternity care. Although the law provides for a 24-hour rest period each week, workers frequently agreed to work overtime to compensate for low wages. The Labor Department provided assistance and legal advice to workers upon request.
Local custom favored unwritten labor contracts of indefinite duration, except in the case of migrant workers, who were issued written contracts for specified terms. Labor groups reported that employers increasingly used temporary contracts to circumvent obligations to pay for such workers' benefits as pensions, sick leave, and paid holidays. The short-term nature of the written contracts made it easier to dismiss workers through nonrenewal.
The Labor Department enforced occupational safety and health regulations, and failure to correct infractions could lead to prosecution. The law includes a requirement that employers provide a safe working environment.
According to official statistics, at the end of April, there were 99,503 nonresident workers, who accounted for approximately 29 percent of the population. They came mostly from the Mainland, Hong Kong, Indonesia, the Philippines, and Vietnam. Most of them worked in the restaurant and hotel industry, but others found employment as domestic servants, in the gaming and entertainment sectors, or in construction and retail trade. They often complained of discrimination in the workplace. The Macau Lawyers Association claimed that foreign workers were often paid less than their Macau counterparts.
Nonresident worker associations and the International Labor Organization expressed concern about the Law on the Employment of Nonresident Workers, which requires foreign workers who left their jobs for any cause not held to be just to depart the SAR for six months before they could start new employment. Labor officials responded that the law, meant to deter "job hopping," was not implemented if a worker could demonstrate a just cause, such as abuse, nonpayment of wages, or contract violation, for wishing to terminate a contract. However, the lack of coordination between the LAB, which handled complaints, and the Immigration Department meant that workers filing complaints could be dismissed, deprived of their immigration status, and forced to depart before their complaints could be resolved.