Top court throws out request by HK prison bosses to keep discriminatory haircut requirement for male inmates

20-Jan-2021 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s top court has thrown out a request by the prison service to temporarily keep a discriminatory requirement for male inmates to keep their hair short until authorities come up with a substitute policy that complies with the law.

The Court of Final Appeal said in a judgment on Monday there was nothing complex about its ruling in November that would justify a six-month suspension of an order requiring “elimination of the less favourable treatment regarding hair length requirements based on sex”.

“It is impossible to understand why a temporary suspension of [six] months is required,” the judgment said, without identifying the author.

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The top court also said one of the Correctional Services Department’s proposed solutions to require all female prisoners to cut their hair short was “rather unattractive”.

The department’s application followed the top court’s ruling on November 27 that forcing only male prisoners to wear their hair short constituted sex discrimination.

Former opposition lawmaker Leung Kwok-hung, nicknamed “Long Hair” for his trademark look, took prison bosses to court after his locks were cropped when he was briefly incarcerated in 2014.

Leung won the first round of the legal battle at the Court of First Instance in 2017, before the Court of Appeal sided with the department and overturned the ruling the following year.

While women can keep their hair long, all male prisoners are required to cut it “sufficiently close for the purposes of health and cleanliness”, according to the department’s in-house rules, the Standing Orders.

After the top court’s ruling, the department asked it to temporarily permit the existing practice to continue until it devised “a policy that would best suit all stakeholders”.

It suggested making slight modifications to the present regime in the meantime by allowing male prisoners to object to a haircut, subject to the prison bosses’ approval.

According to Superintendent Leung Chung-yin, the department had considered three replacement options, including forcing women prisoners to shear their hair the same way as the men.

The top judges, however, expressed reservations about the idea.

“A proposal to force all female prisoners to have their hair cut ‘sufficiently close’ in order to achieve equality appears at first blush to be rather unattractive,” they said in Monday’s judgment.

Another option involved adopting new specifications, allowing men to have “medium short” hair while women could have it at “chin length to armpit length”. A third option was to allow both men and women to keep their hair as it was on admission to jail, unless there was a medical need to cut it.

The superintendent insisted the department needed 26 weeks before a final decision could be made. The officer said it needed time to compare existing options, seek legal advice, train frontline officers and “endorse the policy” the meaning of which was left unexplained.

But the Court of Final Appeal said the department’s task, unlike any lengthy and uncertain legislative processes, was simply to issue a new rule in the form of a standing order.

The department should have started studying alternative options when the haircut requirement was first ruled discriminatory in 2017, the top court added.

“The implications of a change in the existing regime have been under consideration literally for years, advice having been taken from consultants and lawyers,” the judgment said.

“The legal obligation is to comply with the court’s order, it being left to the [department's] discretion as to which policy it wishes to adopt while seeking to ensure that it does not involve adverse differential treatment based on sex.

“We are not persuaded that any case has been made out for the temporary suspension requested.”

Without disclosing how the haircut rules would be rectified, a department spokesman said it would carry out “feasible” policies in compliance with the top court’s judgment “as soon as possible”.


Category: Hong Kong

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