Editorial | Victory for LGBT community reflects need to update laws
- Failure to repeal or amend discriminatory offences since the 1997 handover is believed to have led to the prosecution, conviction and sentencing of homosexuals up to as recently as last year
Laws governing society that have been on the books since colonial times often need to be updated to bring them into line with modern precepts or prevailing community standards. Lack of urgency or political sensitivities can result in governments putting off action or sweeping issues under the carpet. But there is no excuse for inaction where it results in discriminatory prosecutions leading to convictions and punishment. An example is a number of laws relating to homosexual conduct. Regrettably, the government has shown no appetite for addressing gender inequality before the law, even when activists have long called for it and the Law Reform Commission has pointed the way forward. It has ultimately been left to the courts.
A case in point is a ruling by Mr Justice Thomas Au Hing-cheung in the High Court striking down four offences that criminalise sex between men because they are unconstitutional, and reinterpreting three others. It was a legal victory for the LGBT community in a lawsuit against the government for a judicial review by activist Yeung Chu-wing. The seven offences under challenge – all part of the Crimes Ordinance – made homosexual men criminally liable for acts that are legal for heterosexuals and, in some cases, lesbians, involving in particular the age threshold for boy or girl. Yeung asserted that the seven criminal offences violated articles of both the Basic Law and the Bill of Rights, guaranteeing equality before the law.
The government conceded nearly all the changes. It is disturbing therefore that according to Tommy Noel Chen, founder of Rainbow Action, the LGBT rights group had been trying to get these laws changed for more than 20 years, only to encounter refusals or delays.
Yeung’s lawyer, Michael Vidler, said failure to repeal or amend discriminatory offences since the handover in 1997 had led to the prosecution, conviction and sentencing of gay men up to as recently as last year, after Yeung launched his challenge. The rulings also reflected proposals for consultation a year ago by the commission.
Changes in the law are clearly overdue. It does nothing for respect for the law to leave potentially sensitive issues to be dealt with by the courts by avoiding them for years. The people directly affected in this case may be a minority, but protection of minority rights is a core principle of a pluralistic society.