Submitted by CRIN on
MACAU
Title:
Court of Final Appeal of Macau, case no. 21/2007
Court:Â
Court of Final Appeal of Macau
Date:
14 May 2008
CRC Provisions:Â
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 9: Separation from parents
Other International Provisions:
International Covenant on Economic, Social and Cultural Rights (“ICESCRâ€), Article 10: Right to family life
Domestic Provisions:
Law of Macau No. 4/2003, Article 8, Provision 5
Basic Law of Macau
Case Summary:
Background:
The appellants were foreign guest workers in the Macau Special Administrative Region (“Macauâ€). Under the Law of Macau No. 4/2003, Article 8, Provision 5, only highly qualified guest workers in Macau whose employment is beneficial to Macau are entitled to apply for Stay Permits for their family members. Because the appellants were not highly qualified guest workers, the Public Security Police Force (“PSPFâ€) denied their application for a Stay Permit for their child. The appellants appealed to the highest court, alleging that the PSPF’s decision violated various provisions of the CRC with respect to their child.
Issue and resolution:
Separation from parents; whether non-residents of Macau have the right to live together with their children in Macau. The Court held that there is no such right under either the Basic Law of Macau (i.e. Constitution of Macau) or the CRC, and therefore no violation of the CRC.
Court reasoning:
As to Article 2 of the CRC, the government of Macau did not discriminate against the appellants’ child in any respect, because the government did not treat him differently from other non-residents on the basis of race, colour, gender, or religion.
As to Article 3 of the CRC, the government did not violate the principle of the best interests of the child. Given that Macau is a tiny region, neither the Basic Law of Macau nor other internal laws or international conventions to which Macau is subject requires Macau to admit the children of non-residents and grant them the right to stay in Macau, otherwise at a certain point it would be impossible to ensure the safety, education, health, housing, and communication of the people living in the region.
As to Article 9 of the CRC, this provision is not applicable here. Macau did not force the separation of the child from his parent; as long as the appellants are willing to give up their jobs in Macau and return to their country of origin, they would be able to live together with their child.
The Court also reaffirmed its decision in a 2006 case, in which it held that the right of the child to stay is not covered by the right to family life. Even though the Basic Law and other internal laws admit the rights of both residents and non-residents to establish families and to give birth, such rights do not give rise to the claim that each person has the right to live together with his or her children. As a general rule, the latter right does not exist, unless the law provides otherwise. Based on the decision in that case, the court held that Macau did not breach its duty under Article 10 of the ICESCR to accord protection and assistance to the family.
Excerpts citing CRC and other relevant human rights instruments:
as in full-text decision from Macau:
4.2. 那麼我們看,行政行為或被上訴之è£åˆ¤æ˜¯å¦é•å了ä¿è·å…’童的國際公約。
上訴人所æ出的那些ä¿è·å…’童的國際公約讓人相信其出發點是澳門特別行政å€æœ‰ç¾©å‹™åŽ»ä¿è·å…¨ä¸–界的所有兒童,但(特å€)沒有,也不å¯èƒ½æœ‰é€™ä¸€ç¾©å‹™ã€‚è¦æ醒的是上訴人是一ä½åœ¨æ¾³é–€æ供工作的éžæœ¬åœ°å±…æ°‘ï¼Œå› ç‚ºä»–é¡˜æ„而不是澳門特別行政å€å¼·è¿«ä»–的,其é…å¶ä¹Ÿæ˜¯å¦‚æ¤ï¼Œå› ç‚ºæ ¹æ“šé™³è¿°ï¼Œå…¶é…å¶ä¹Ÿæ˜¯ä¸€ä½éžæœ¬åœ°å±…民,他的兒å,å³æ¡ˆä¸ä¹‹å…’童,也是一ä½éžæœ¬åœ°å±…民。
我們將進一æ¥è©³ç´°åœ°åˆ†æžæ‰€æ出的è¦ç¯„。
所æ出的於1990年1月26日在ï§ç´„簽署的《兒童權ï§å…¬ç´„》(下稱《公約》)çš„æ¢æ–‡è¦å®šå¦‚下:
“第二æ¢
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2. ç· ç´„åœ‹æ‡‰æŽ¡å–一切é©ç•¶æŽªæ–½ç¢ºä¿å…’童得到ä¿è·ï¼Œï¥§å—基於兒童父æ¯ã€æ³•å®šç›£è·äººæˆ–家åºæˆå“¡çš„身份ã€æ´»å‹•ã€æ‰€è¡¨é”çš„è§€é»žæˆ–ä¿¡ä»°è€ŒåŠ ï¨¢çš„ä¸€ï¨€å½¢å¼çš„æ§è¦–或懲罰。
第三æ¢
1. 關於兒童的一切行動,不ï¥æ˜¯ç”±å…¬ç§ç¤¾æœƒï¨›ï§æ©Ÿæ§‹ã€æ³•é™¢ã€ï¨ˆæ”¿ç•¶å±€æˆ–立法機構執行,å‡æ‡‰ä»¥å…’童的最大ï§ï¨—為一種首è¦è€ƒæ…®ã€‚
2. ç· ç´„åœ‹æ‰¿æ“”ç¢ºä¿å…’童享有其幸福所必需的ä¿è·å’Œç…§ï¦¾ï¼Œè€ƒæ…®åˆ°å…¶
第 21/2007 號案 第 33 é
父æ¯ã€æ³•å®šç›£è·äººã€æˆ–任何å°å…¶è² 有法律責任的個人的權ï§å’Œç¾©å‹™ï¼Œä¸¦ç‚ºæ¤æŽ¡å–一切é©ç•¶çš„立法和行政措施。
3. ç· ç´„åœ‹æ‡‰ç¢ºä¿è² 責照料或ä¿è·å…’童的機構,æœå‹™éƒ¨é–€åŠè¨æ–½ç¬¦åˆä¸»ç®¡ç•¶å±€è¦å®šçš„標準,尤其是安全ã€è¡›ç”Ÿã€å·¥ä½œäººå“¡ï¥©ç›®å’Œè³‡æ ¼ä»¥åŠæœ‰æ•ˆç›£ç£ç‰æ–¹é¢çš„標準。
第ä¹æ¢
1. ç· ç´„åœ‹æ‡‰ç¢ºä¿ï¥§é•èƒŒå…’童父æ¯çš„æ„願使兒童與父æ¯åˆ†é›£ï¼Œé™¤éžä¸»ç®¡ç•¶å±€æŒ‰ç…§é©ç”¨çš„法律和程åºï¼Œç¶“法院審查,判定這樣的分離符åˆå…’童的最大ï§ï¨—而確有必è¦ã€‚在諸如由於父æ¯çš„è™å¾…或忽視ã€æˆ–父æ¯åˆ†å±…è€Œå¿…é ˆç¢ºå®šå…’ç«¥å±…ä½åœ°é»žçš„特殊情æ³ä¸‹ï¼Œé€™ç¨®è£æ±ºå¯èƒ½æœ‰å¿…è¦ã€‚
2. 凡按本æ¢ç¬¬1款進行訴訟,å‡æ‡‰çµ¦äºˆæ‰€æœ‰æœ‰é—œæ–¹é¢ä»¥ï¥«åŠ 訴訟並閘明自己æ„見之機會。
3. ç· ç´„åœ‹æ‡‰å°Šé‡èˆ‡çˆ¶æ¯ä¸€æ–¹æˆ–雙方分離的兒童åŒçˆ¶æ¯ç¶“常ä¿è·å€‹äººé—œä¿‚åŠç›´æŽ¥ï¦—繫的權ï§ï¼Œä½†é•å兒童最大ï§ï¨—者除外。
4. å¦‚æžœé€™ç¨®åˆ†ï§ªæ˜¯å› ç· ç´„åœ‹å°çˆ¶æ¯ä¸€æ–¹æˆ–雙方或å°å…’童所採å–的任何行動,諸如拘ï§ã€ç›£ç¦ã€ï§Šæ”¾ã€é©…é€æˆ–æ»äº¡(包括該人在該國拘ç¦ä¸å› ä»»ä½•åŽŸå› è€Œæ»äº¡)æ‰€è‡´ï¼Œè©²ç· ç´„åœ‹æ‡‰æŒ‰è«‹æ±‚å°‡è©²ç‰å®¶åºæˆå“¡ä¸‹ï¤˜çš„基本情æ³å‘ŠçŸ¥çˆ¶æ¯ã€å…’童或é©ç•¶æ™‚告知å¦ä¸€å®¶åºæˆå“¡ï¼Œé™¤éžæ供這ï§æƒ…æ³æœƒæœ‰æå…’ç«¥çš„ï¨›ç¥‰ï¼Œç· ç´„åœ‹é‚„æ‡‰ç¢ºä¿æœ‰é—œäººå“¡ï¥§è‡´å› æ出這ï§è«‹æ±‚而承å—不ï§å¾Œæžœï¼‚。
《經濟ã€ç¤¾æœƒèˆ‡æ–‡åŒ–權ï§åœ‹éš›å…¬ç´„》(下稱《公約》)第10æ¢è¦å®šå¦‚下:
“第åæ¢
æœ¬å…¬ç´„ç· ç´„å„國承èªï¼š
一ã€å°ä½œç‚ºç¤¾æœƒçš„自然和基本的單元的家åºï¼Œç‰¹åˆ¥æ˜¯å°æ–¼å®ƒçš„å»ºï§·å’Œç•¶å®ƒè² è²¬ç…§é¡§å’Œæ•™è‚²æœªç¨ï§·çš„兒童時,應給以儘å¯èƒ½å»£æ³›çš„ä¿è·å’Œå”åŠ©ã€‚ç· å©šå¿…é ˆç¶“ç”·ï¦é›™æ–¹è‡ªç”±åŒæ„。
二ã€å°æ¯è¦ªï¼Œåœ¨ç”¢å‰å’Œç”¢å¾Œçš„åˆï§¤æœŸé–“,應給以特別ä¿è·ã€‚在æ¤æœŸé–“,å°æœ‰å·¥ä½œçš„æ¯è¦ªæ‡‰çµ¦ä»¥çµ¦è–ªä¼‘å‡æˆ–有é©ç•¶ç¤¾æœƒä¿éšœï¨›ï§ï¤Šçš„休å‡ã€‚
三ã€æ‡‰ç‚ºä¸€ï¨€å…’童和少年採å–特殊的ä¿è·å’Œå”åŠ©æŽªæ–½ï¼Œï¥§å¾—å› å‡ºèº«æˆ–å…¶ä»–æ¢ä»¶è€Œæœ‰ä»»ä½•æ§è¦–。兒童和少年應予ä¿è·å…å—經濟和社會的å‰å‰Šã€‚僱用他們åšå°ä»–們的é“德或å¥åº·æœ‰å®³æˆ–å°ç”Ÿå‘½æœ‰å±éšªçš„工作或åšè¶³ä»¥å¦¨å®³ä»–們æ£å¸¸ç™¼è‚²çš„工作,ä¾æ³•æ‡‰å—懲罰。å„國亦應è¦å®šé™å®šçš„年齡,凡僱用這個年齡以下的童工,應予ç¦æ¢å’Œä¾æ³•æ‡‰å—懲罰。
4.3. 關於《公約》第2æ¢ï¼Œæ ¹æ“šè©²æ¢ï¼Œç· 約國承ï¥å°Šé‡æœ¬ã€Šå…¬ç´„》所載列的權ï§ï¼Œä¸¦ç¢ºä¿å…¶ç®¡è½„範åœå…§çš„æ¯ä¸€å…’ç«¥å‡äº«å—æ¤ç¨®æ¬Šï§ï¼Œï¥§å› 其種æ—ã€è†šè‰²ã€æ€§åˆ¥ã€å®—æ•™ç‰è€Œæœ‰å·®åˆ¥ã€‚看不到澳門特別行政å€åœ¨å“ªäº›æ–¹é¢æ§è¦–上訴人的兒åï¼Œå› ç‚ºä»–ä¹Ÿæ²’æœ‰æ出澳門特別行政å€å°å…¶ä»–種æ—ã€è†šè‰²ã€æ€§åˆ¥ã€å®—教的éžæœ¬åœ°å±…æ°‘çš„åï¦æŽ¡å–不åŒçš„åšæ³•ã€‚
關於《公約》第3æ¢ï¼Œæ ¹æ“šè©²æ¢ï¼Œé—œæ–¼å…’童的一切行為,不ï¥æ˜¯ç”±å…¬ç§ç¤¾æœƒï¨›ï§æ©Ÿæ§‹ã€æ³•é™¢ã€ï¨ˆæ”¿ç•¶å±€æˆ–立法機構執行,å‡æ‡‰ä»¥å…’童的最大ï§ï¨—為一種首è¦è€ƒæ…®ï¼Œä¹Ÿçœ‹ï¥§å‡ºæœ‰é•å之處。
澳門特別行政å€æ˜¯ä¸€å€‹æœ‰ç´„28平方公里的細å°åœ°å€ï¼Œè¶…éŽ500,000人在æ¤é•·æœŸå±…ä½ï¼Œå› æ¤æ˜¯ä¸€å€‹äººå£å¯†ï¨æœ€é«˜çš„地å€ä¹‹ä¸€ï¼Œå†åŠ 上æ¯æ—¥ï¥©ä»¥è¬è¨ˆçš„éŠå®¢â”€â”€æ¾³é–€ï¥§å¯æˆ–缺的。基於æ¤ä¸€æ¢ä»¶ï¼Œç„¡ï¥æ˜¯æ ¹æœ¬æ³•ï§˜ï¼Œå³ã€ŠåŸºæœ¬æ³•ã€‹ï¼Œé‚„是其他內部法或特å€è¦éµå®ˆçš„國際公約,都不è¦æ±‚澳門特別行政å€å¿…é ˆæŽ¥å—本身在澳門沒有居ï§æ¬Šçš„å±…æ°‘çš„åï¦åœ¨æ¾³é–€å±…ï§ï¼Œå› 為地方如æ¤æœ‰é™ï¼Œåˆ°ä¸€å®šç¨‹ï¨é–‹å§‹ï¼Œå°±ï¥§å¯èƒ½ç¢ºä¿äººå€‘的安全ã€æ•™è‚²ã€è¡›ç”Ÿã€ä½æˆ¿å’Œäº¤é€šï¦ºï¼Œå°¤å…¶æ˜¯æ¶‰åŠå…§éƒ¨å®‰å…¨å•é¡Œã€‚
如果å°æœ¬åœ°å±…æ°‘çš„åï¦æ˜¯å¦‚æ¤çš„話,那麼éžå¸¸ï§ 明的是,ï¤æ¾³é–€ç‚ºï¦ºå·¥ä½œçš„éžæœ¬åœ°å±…æ°‘ï¤ï¥§å…·æœ‰èˆ‡å…¶æœªæˆï¦Žåï¦å…±åŒå±…ä½çš„權ï§ã€‚逗ï§å–決於澳門機構的批准與å¦ï¼Œè€Œè‚¯å®šçš„是屬自由è£ï¥¾ä¹‹æ±ºå®šï¼Œä¹Ÿå¦‚å‰è¿°ï¼Œå¿…é ˆè€ƒæ…®åˆ°éžæœ¬åœ°å±…民的工作å°æ¾³é–€ç‰¹åˆ¥ï¨ˆæ”¿å€æ‰€å¸¶ï¤çš„ï§ï¨—。
《公約》第9æ¢ç¢ºä¿ï¥§é•å兒童父æ¯çš„æ„願使兒童與父æ¯åˆ†ï§ªï¼Œé€™ä¸¦éžæ˜Žé¡¯é©ç”¨ã€‚澳門特別行政å€ä¸¦æ²’有強迫上訴人與其兒å分離,åªæ˜¯å…¶å…’å在澳門沒有居ï§æ¬Šï¼Œåªè¦ä¸Šè¨´äººæ”¾æ£„在澳門的工作,返回其原居ä½åœ‹ï¼Œå°±å¯ä»¥ç¹¼çºŒèˆ‡å…¶å…’å生活了。
關於《公約》第10æ¢ï¼Œç· 約國有義務ä¿è·å®¶åºæ–¹é¢ï¼Œåœ¨æ¤ï¼Œå‰é¢è½‰ï¤¿çš„在2007年1月10æ—¥åˆè°åºè£åˆ¤å…§æ‰€ä½œçš„見解有效。
çµï¥æ˜¯æ²’有顯示出é•å了所æ出的法è¦ã€‚
CRIN English translation:
4.2 Now let’s see whether the administrative acts or the appealed decision violated the international conventions protecting children.
We believe the appellants raised those international conventions protecting the rights of children based on the belief that the Macau SAR is obligated to protect all children throughout the world. The SAR, however, does not, and could not, have such a duty. It is worth noticing here that the appellant, his wife and child are all non-residents of Macau.
We will take a further look at the relevant conventions.
The Convention on the Rights of the Child (the “Conventionâ€) adopted on January 26, 1990 in New York provides:
Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 10 of the ICESCR ( the “Covenantâ€) provides that:
The States Parties to the present Covenant recognise that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
4.3 As to Article 2 of the CRC, under which the States Parties undertake to respect and ensure the rights set forth therein to each child within their jurisdiction without discrimination of any kind, irrespective of the child's race, colour, sex, religion, etc., we couldn’t see discrimination in any respect by the SAR against the son of the appellants’ child, as they’ve failed to prove that the SAR treated the children of other non-residents differently based on their race, colour, sex, or religion.
As to Article 3 of the CRC, which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary concern, we don’t see any violation thereof as well.
The Macau SAR is a tiny little region of only about 28 km2 with more than 500,000 residents, not to mention the tens of thousands of tourists visiting here per day. This is a place with one of the highest population densities in the world.
In light of that, neither the Basic Law of Macau, other internal laws, nor the international conventions to which the SAR is subject to, requires the SAR to admit children whose parents themselves don’t have residence rights to stay in Macau; otherwise in this limited space it would be impossible to ensure the safety, education, health, housing and communication of the people at certain point, especially the internal safety.
It is therefore apparent that non-residents who came to Macau for work are not entitled to the right to live together with their children. Whether their children could stay is at the sole discretion of the relevant authority, whose decision-making process must take into consideration the benefits that the employment of non-residents would bring to Macau, as mentioned earlier.
Article 9 of the CRC, which ensures that a child shall not be separated from his parents against his will, is not apparently applicable here. The SAR did not force the appellants to be separated from their son; it only held that the son didn’t have the right to stay. As long as the appellants are willing to give up their jobs in Macau and return to their country of origin, they would be able to live together with their son.
As to Article 10 of the ICESCR, under which the States Parties undertake to provide protection to the family, the aforementioned decision rendered on January 10, 2007 is upheld.
The court holds that there is no violation of the CRC or the ICESCR.
CRIN Comments:Â
CRIN believes this decision is not consistent with the CRC. Under Article 9, a child must not be separated from their parents unless this is deemed to be necessary for the child's best interests. Article 2 requires States Parties to respect and ensure the rights under the CRC, including Article 9, to each child within their jurisdiction without discrimination of any kind on the basis of the child’s or their parents’ status. The law in question accords differing treatment to children whose parents are highly skilled guest workers and children whose parents are not highly skilled guest workers, and discriminates against the latter category by preventing them from staying in the region with their parents.
Link to Full Judgment:
Available on request
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