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Macao: Strengthening Human Rights Safeguards
relevant provisions of the ICCPR. In particular Articles 26, 27, 34, and 42 of the Draft Basic Law should be made consistent with Articles 18, 19, 25 and 27 of the ICCPR. The sweeping limitations and ill-defined terms contained in Article 23 of Draft Basic Law should be amended to ensure that this article does not violate Articles 19, 21 and 22 of the ICCPR.
4.5
Limitations clause
Article 43 of the Draft Basic Law states,
"The rights and freedoms enjoyed by Macao residents shall not be restricted unless as prescribed by law. Such restrictions as prescribed by law shall be limited to those necessary for safeguarding the state security, social order, public sanitation and morality as well as others' rights and freedoms".
Such a broad limitations clause raises the risk that a future legislative measure could undermine some or all of the rights prescribed in the other provisions of the Draft Basic Law, including those which, according to the ICCPR, may never be curtailed even in situations of declared public emergency.
Although limitations clauses must be construed in a narrow fashion so as to avoid undermining the rights which are granted in the same treaty or legislative instrument, the extremely broad formulation of Article 43 presents an unusually large risk of abuse.
The ICCPR provides that some fundamental rights cannot be the subject of any limitation or derogation, even "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed" (Article 4). All other rights under the Covenant are subject only to carefully drafted and internationally accepted limitations which are tailored to each specific right.
The human rights guarantees of the Draft Basic Law may be substantially undermined unless Article 43 is brought into conformity with the minimum international standards found in Article 4 and other provisions of the ICCPR which specify the conditions, if any, under which each right may be limited and, in addition, those rights from which there can be no derogation.
Those concerns are heightened by the provisions in Article 143 of the Draft Basic Law which gives the Standing Committee of the National People's Congress of the PRC power of interpretation of the Basic Law. Although the courts of the Macao SAR may interpret the provisions of the Basic Law in adjudicating cases before them, Article 143 requires the courts of the Macao SAR to seek an interpretation from the Standing
Al Index: ASA 27/01/91
Amnesty International November 1991
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