Hong Kong leads the way

In a landmark decision, a judge in Hong Kong ruled that the laws against homosexual sex were discriminatory and were therefore unconstitutional. They violated the Basic Law, Hong Kong's constitution.

The case was brought by 20-year-old William Leung, who said the law discriminated against gay men like himself because it barred him from having a sexual life until he was 21, as opposed to 16 for heterosexuals and lesbians. He asked for a judicial review of the law.

At issue were 4 sections in Hong Kong's Crimes Ordinance, namely,

The precise wording of the laws can be seen at Sections 118C, 118F, 118H, 118J of the Hong Kong Crimes Ordinance

From the outset, the Hong Kong government conceded that Sections 118F, 118H and 118J violated the Basic Law and were untenable. However, it argued that there was a State interest in protecting the young and that is why 118C should be valid.

Justice Michael Hartmann held otherwise. He did not accept the "harm" or "protection" argument; few thinking people do, once we ask the key question, "where's the victim?"

Hartmann said, "For gay couples, the only form of sexual intercourse available to them is anal intercourse, that is, the act of buggery." 

Outlawing buggery " is disguised discrimination founded on a single basis: sexual orientation."

"The four sections are demeaning of gay men who are, through the legislation, stereotyped as deviant. The sections also constitute ... a grave and arbitrary interference with the right of gay men to self autonomy in the most intimate aspects of their private lives." 

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The editorial in the South China Morning Post, 25 August 2005, put the matter in broader perspective:

The declaration by High Court judge Michael Hartmann that certain provisions of the Crimes Ordinance are unconstitutional is a landmark for the rights of the individual guaranteed by the Basic Law of Hong Kong and the Bill of Rights. It also affirms unambiguously the duty of the courts to strike down laws that are not consistent with guaranteed rights. 

The government failed in an argument that the legislature had a right... to make laws that overrode the constitutional rights of the individual in certain circumstances.... for example by prohibiting adolescent homosexual activity on moral grounds alone. 

And after a discussion of the details of the case, it once again reiterated,

The real significance of the judgment is that it upholds the core value of the Basic Law and the Bill of Rights -- the constitutional guarantees of individual rights and freedoms.

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These laws that were struck down were only 14 years old. They were incorporated into the Crimes Ordinance in 1991. Prior to that, Hong Kong's laws against homosexual acts were similar to what we have in Singapore in Sections 377 and 377A of our Penal Code.

In the old Hong Kong laws, the penalty was life imprisonment for buggery (anal sex) regardless of age, and 2 year's jail for gross indecency between 2 males, regardless of age.

The history behind the change is recounted in a paper, Decriminalisation of homosexuality in Hong Kong written by Christine Wong and Vincent Chan, University of Hong Kong.

The tragedy that set in motion the review of the laws was the 1980 suicide of John Macleman, an inspector of the Hong Kong police. There was a whiff of blackmail as a trigger factor. It might or might not have been related to the fact that in 1978, the police had formed a special unit to investigate homosexual acts.

Immediately after, the government formed a Law Reform Commission to look into whether the laws against homosexuality should be changed. This Commission reported in 1983 and after some foot-dragging, a public consultation exercise was held.

Finally, in 1990, an amendment to the laws was proposed, decriminalising homosexual acts between consenting adults in private, which was how Sections 118C, 118F, 118H and 118J came to be.

It has been suggested by political observers that among the motivating factors was the feeling that basic rights of individuals ought to be better enshrined before the hand-over of Hong Kong to China in 1997. In fact, that was also the period when the Basic Law and the Bill of Rights were being drafted. One can understand the concern of those who wanted to endow Hongkongers with democratic freedoms, regarding the possibility of a totalitarian government (Beijing) using the buggery law and the life imprisonment that it prescribed to lock up its political opponents.

Given the experience of Anwar Ibrahim in Malaysia before the decade was out, they were remarkably prescient.

Hence, homosexual acts between consenting adults in private has been legal in Hong Kong since 1991. But as found by Justice Hartmann,  these clauses in the Crimes Ordinance remained discriminatory and also violated privacy and personal autonomy, and thus were invalid on these grounds.

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What a refreshing example it sets, for a court in Asia to rule against a government and uphold a fundamental human right. In contrast, what shadow theatre is performing in Singapore? See Openness and inclusiveness, bah!

© Yawning Bread 

Footnotes

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Addenda

1. After Justice Hartman made his ruling, the Hong Kong government appealed against his decision. In September 2006, the Hong Kong Court of Appeal unanimously affirmed Hartman's decision. See the follow-up article What we've yet to see, hear or speak of