UN requires Macau’s domestic violence legislation to protect without discrimination

The UN Committee against Torture (“UNCAT”) held a hearing in November 2015 to review the ratification of the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” by the Macau SAR Government (“the Government”). On 09 December 2015, the UNCAT published its official concluding observations on Macau.

According to paragraphs 24 – 25 of the observations, the UNCAT expressed its concern over the current scope of the domestic violence bill not covering all individuals in an intimate relationship regardless of their sexual orientation and required the Government to accord protection without discrimination.

During the hearing in November, UNCAT member Ms Sapana Pradhan-Malla raised the same issue. However, some might undermine its significance by seeing it an opinion expressed by an individual UNCAT member. The latest concluding observations were made by the UNCAT as a whole officially addressed to the Government.

After the hearing that had taken place in Geneva, Rainbow of Macau (“we”) met with the Social Work Bureau (IAS) and the Legal Affairs Bureau (DSAJ) on 30 November and 4 December respectively. We discussed the Government’s long-held view that the inclusion of same-sex relationship on the domestic violence law would create an inconsistency with the legal system.

At our meeting with the Legal Affairs Bureau, we pointed out that “former spouses” which is in the current scope of the bill, is also not found in the Penal Code similar to same-sex couples. The DSAJ explained that the source of “former spouses” was an international law that superseded local legislation. Furthermore, the DSAJ mentioned that the domestic violence laws inclusive of same-sex relationships in Hong Kong and Taiwan were about civil procedures but not criminal ones.

At the end of the meeting with DSAJ, the representatives of the DSAJ said that the decision of the removal of the reference to same-sex relationships had been made at the time of drafting the bill, and now they would study the latest information from the UN. We welcome the DSAJ’s pledge to re-study the inclusion of same-sex relationship in the bill.
At our meeting with the IAS, the IAS denied the accusation of discrimination by insisting that their services related to domestic violence would be made available to all persons despite the absence of the reference to same-sex couples in the domestic violence legislation.

While taking the Government’s arguments into account, we can infer the following authoritative information from the UNCAT’s concluding observations:

1. Under the international law, The Government is obliged to enact a domestic violence law inclusive of same-sex couples. (The international law enjoys higher priority to local legislation)

2. Denying legal protection of all individuals in an intimate relationship regardless of sexual orientation against domestic violence will be discriminatory

3. Acts of violence between same-sex and heterosexual couples constitute the same criminal offense of domestic violence

4. The Government is required to raise public awareness to fight gender stereotypes implying that the UNCAT has rejected the Government’s use of argument of “lack of social consensus” to the support the decision of denying equal protection

The concluding observations made by the UNCAT have invalidated the arguments the Government had used to back the decision of dropping protection of same-sex couples in the domestic violence bill. As the bill is being revised by the Government, we urge the Government to observe the UNCAT’s conclusions and the superseding international law as to protect all intimate relationships irrespective of sexual orientation.