Judge Michael Hartmann ruled Tuesday that the judicial review process over a statutory law is a ``natural route'' to assert one's constitutional rights. He set July 21 for the hearing. It is the first time that Hartmann officially endorsed the use of judicial review to challenge existing law.

Last December, William Roy, 20, was given leave by Hartmann to challenge a law which makes private and consensual sex between two men a criminal offense if one of them is under 21, punishable by life imprisonment.

Roy submits that, since he is homosexual and under 21, the law discriminates against him, unfairly restrains his way of life and violates his constitutional rights, especially since heterosexuals above the age of 16 can indulge in private sexual relations.

Roy further argues that the law specifically seems to target male homosexuals since, as he understands it, it does not restrain female homosexuals from having sex.

On June 17, the government sought to shoot down the challenge by asking Hartmann to overturn his original decision. Representing the government, senior counsel Gerard McCoy argued that Roy is neither a direct ``victim'' since he has not been charged with an offense, nor has there been a ``decision'' made against him over which there can be a judicial review.

If individuals can make direct challenges to statutory laws just because they feel ``aggrieved,'' then it would ``open the flood gates'' to people seeking judicial reviews when they have no legal grounds, McCoy said. He submitted that the proper process to challenge laws is via the legislature. However, Hartmann ruled Tuesday that ``if access to the protections afforded by the Basic Law is to be provided to those persons who, in appropriate cases, have a real interest in the matter, it seems to me that the natural route to take is by way of judicial review seeking declaratory relief.''

He said that Roy does not need to be arrested for a criminal offense before he can apply for a judicial review, especially since he is only seeking a declaration to clarify the law, not to overturn a conviction.

During the hearing in June, Hartmann said that Roy's constitutional rights were at issue.

He said Tuesday that, although there was no decision against Roy and though he had not been charged, he was no ``busybody, nor the purveyor of a trivial or misguided complaint.''

``If the applicant is unable to directly challenge primary legislation in this manner, how else is he to assert what he considers to be his constitutional right?'' Hartmann said in his judgment.

In any case, the issue is one that ``profoundly affects the private lives of a whole class of persons'' and should therefore be afforded a proper substantive hearing.

albert.wong@singtaonewscorp.com