A look back at two pivotal same-sex marriage cases in Hong Kong show a lack of evidence, and a worrying elevation of imported European views over this community’s own values, says senior legal mind Henry Litton.
“Where Law Ends, Tyranny Begins”.
This sentence (carved in stone over the entrance to the Capitol Building in Des Moines, Iowa, USA) expresses a universal truth. It is the essence of the rule of law. It imposes a particular responsibility upon the Judiciary, guardian of the rule of law, to ensure that the limits of law be not exceeded by judges themselves.
WHO GUARDS THE GUARDIAN?
But who guards the guardian? In the Hong Kong SAR it is the constitutional instrument – the Basic Law – which imposes limits on the judiciary’s exercise of power. There are two aspects of note.
One, when a matter before the court requires interpretation of articles in the Basic Law, the ultimate power of interpretation resides in the Standing Committee of the National Peoples’ Congress, not in the Court of Final Appeal: BL158(1). It follows that in this area of the law, the CFA must act with particular circumspection, lest the rule of law be tarnished, and Hong Kong’s high degree of autonomy be compromised.
Two, constitutionally, the Hong Kong SAR is an executive-led government. Policies for governance of the community – and, of course, for social change – come from the executive branch of the administration, not from the courts. The separation of powers is clearly delineated in the Basic Law.
CFA’S USURPATION OF POWER
This is what makes the CFA’s judgment in W v Registrar of Marriages handed down eleven years ago so shocking: particularly as it related to a bedrock of family life: marriage. The court elbowed its way into the policy-making field where it never belonged: an area where law ended and tyranny began, with the court acting like an imperial power.
At the time of Reunification – 1 July 1997 – there was not the least doubt as to what “marriage” meant, both in text and in popular culture. It was the voluntary union of man and woman for life, solemnised by ceremony. Two pieces of legislation concretised this: the Marriage Ordinance and the Matrimonial Causes Ordinance.
These two Ordinances, together with many others, became part of the laws of the Hong Kong SAR under BL8 as of 1 July 1997. The freedom of marriage of Hong Kong residents and their right to raise a family freely were specifically recognised in the constitution: BL37.
This is reinforced, if needs be, by Article 19 of the Bill of Rights:
( 1 ) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
( 2 ) The right of men and women of marriageable age to marry and to found shall be recognised”.
In short, “man” meant a biological male (with chromosome XY) and “woman” a biological female (with chromosome XX), and “marriage” meant a heterosexual marriage. This is the consequence of an immutable fact of nature, recognised by legislation and the Basic Law.
That was the situation at Reunification on 1 July 1997. And yet, barely sixteen years later, the CFA (by a majority judgment) declared that the word “marriage” in BL37 had expanded in meaning to include a male who had undergone sex reassignment surgery (SRS) to identify as a “woman”, and hence was “entitled” to “marry” another male.
There was not a scrap of evidence placed before the court that, in the intervening 16 years, he popular conception of “marriage” had changed in such a way as to permit the court’s expanded interpretation of BL37. No amount of citation of overseas case law or determination of the European Court of Human Rights could change the meaning of the plain words in BL37.
IMPOSITION OF IDEOLOGY
The CFA’s determination was the imposition of an ideology on the Hong Kong community: an ideology based on the view that a person’s sex is not fixed at birth, but slides along a spectrum, and could change by personal choice.
The court’s conclusion had implications far beyond the facts of the particular case before it. So it “suspended” its declaration for a year to enable legislation to be introduced, to give full effect to its determination.
IMPLEMENTATION ATTEMPTS
The government took steps to implement the court’s determination. A draft Marriage (Amendment) Bill was put before the Executive Council on 18 February 2014, which ordered that the Bill be introduced into Legco.
This was done. Predictably, on the second reading of the Bill on 22 October 2014, it was roundly rejected (11 in favour, 40 against, 5 abstained). The CFA was publicly humiliated.
There the matter stayed, with ambiguity surrounding the institution of “marriage”: the bedrock of family life, the “family” being the “natural and fundamental group unit of society” as stated in Article 19 of the Bill of Rights. Family life, as that Article said, was “entitled to protection by society and the State”.
In what way did the CFA act to protect family life by its judgment?
By the autumn of 2014, when Legco had overwhelmingly rejected the CFA’s determination in W v Registrar of Marriages, the community was concerned with matters far more pressing than the desire of transsexual persons to marry. The Occupy Central movement was in full swing. People’s lives and livelihood were severely interrupted. Time passed. Even greater perils assailed the community.
Sham Tsz Kit v Secretary for Justice
Fast forward nine years to September 2023 when the CFA handed down its judgment in Sham Tsz Kit v Secretary for Justice [FACV 14/2022].
Had the CFA learnt anything from its debacle in 2014? The answer, sadly, is: not at all. Quite the reverse.
THE FACTS
Mr Sham, a permanent resident, wished to marry another male person in Hong Kong. This is prohibited by law. Mr Sham engaged lawyers, seeking relief in judicial review proceedings. He met with complete failure in the High Court (first instance and on intermediate appeal). He eventually succeeded in the CFA who, by a majority (the Chief Justice and Lam PJ dissenting) made a determination to this effect:
( 1 ) The appeal is allowed and the judgment of the Court of Appeal is set aside.
( 2 ) It is Declared that the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships ( such as registered civil partnerships or civil unions ) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation.
( 3 ) Operation of the aforementioned Declaration is suspended for a period of two years from the date of the final Order to be made to afford the Government time to comply with its aforesaid obligation”.
To most people, the outcome is astounding. Here is the CFA making an even deeper inroad into the institution of marriage, after its rebuff by the legislature back in 2014.
Four judges in the High Court (First Instance and Appeal) together with the Chief Justice and Lam PJ in the CFA had roundly rejected the applicant’s case, yet the opinion of three judges in the CFA (Ribeiro PJ Fok PJ and Keane NPJ) won the day.
GOVERNMENT’S ‘OBLIGATION’
Where there is an obligation, there’s a corresponding right: two sides of the same coin.
What the majority in the CFA decided was that Article 14 of the Bill of Rights (BOR14) gave Mr Sham a personal right to require the government to pass legislation in his favour, to recognise same-sex marriage in Hong Kong. No Legislative Councillor, as member of Legco, has such a right: or Executive Councillor, for that matter. What then is the wording of BOR14 that gave Mr Sham such power over the administration?
Article 14:
This is what it says:
( 1 ) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
( 2 ) Everyone has the right to the protection of the law against such interference or attacks”.
How has Mr Sham’s rights been infringed?
What Mr Sham did at home, what precisely was the nature of his relationship with the man he wished to marry, how that relationship was regarded by his family or the other person’s family, etc: none of these matters was relevant in the case. Nor was there the least suggestion of interference with his privacy, family or home etc by anyone, as prohibited by BOR14.
How, then, was BOR14 engaged in a case like this?
Mr Sham was NOT saying: the government has an obligation to give concrete effect to BOR14 by enacting laws against “interference or attacks” on my privacy, family, home, correspondence, honour or reputation.
His application for judicial review (drafted doubtless by lawyers) adopted the usual scatter-shot approach; it relied on various articles of the Basic Law and the Bill of Rights. All rejected in the High Court. The one that eventually gave him victory in the CFA was BOR14.
Ribeiro PJ and Fok PJ’s joint judgment
This mega-judgment did not give effect to the plain words in BOR14. Had it done so, it could not have resulted in the Declaration they made.
Instead, it ranged over a mountain of European jurisprudence and multiple determinations of the European Court of Human Rights, emerging to give BOR14 an extended meaning, achieving the desired ideological end.
How evolving European societal attitudes to same-sex marriage was relevant to the meaning of BOR14 was not explained.
Chief Justice and Lam PJ
The CJ’s judgment – and that of Lam PJ – dealt with much the same material as in Ribeiro and Fok PJ’s judgment; but came to the opposite conclusion. In interpreting and applying BOR14, the CJ found little help in the European experience.
Under the heading European jurisprudence, he said:
“It is of course up to the governments and legislatures in the Contracting States to the European Convention to decide whether in their countries, same sex marriage or same-sex civil partnership should be accepted and recognised ……”
Para 53
And under the heading Caution in the use of European jurisprudence the CJ said:
Constitutional provisions …..generally fall to be interpreted in the light of the developing values of the societies for which they were made”: para 59.
European societal norms and values were not made for the Hong Kong SAR; nor was the reverse for that matter.
Lam PJ said similar things.
In short, they gave the plain words in Article 14 their plain meaning, and of course rejected the Declaration as proposed by Ribeiro and Fok PJ, which ranged far beyond the true effect of BOR14.
LOPSIDED VIEW
It fell then to Keane NPJ to give the decisive judgment: short; one page. He agreed with Ribeiro and Fok PJ.
Regrettably, his judgment was not a process of reasoning, focussing on what relief should be given to the applicant (if any) by applying the words in BOR14 to the case; he said that “….the issue to be addressed is whether BOR14 requires some irreducible legal recognition of same-sex partnerships”. This was a lopsided approach which predetermined the outcome from the very start.
He treated the case as one of “committed, loving, stable, long-term relationships between partners of the same sex …..”, para 258.
But there was not a scrap of evidence as to the quality of the relationship between Mr Sham and the other male person, loving or otherwise. And how was a court of law to assess such purely personal matters?
ONE-PERSON MARRIAGE?
Further, there was something intrinsically odd about the whole case.
It takes two to marry.
How was it that the other male person had no name and was not a party to the application for judicial review?
Mr Sham was said to have contracted a marriage with him in New York State. But how was it relevant? Mr Sham was not saying that because he had been married in New York, therefore such marriage should be recognised and registered in Hong Kong.
His case turned purely on the wording of BOR14. As to this, the closest Keane NPJ came to analysing that wording was to say: “The absence of legal recognition of their relationship is apt to disrupt and demean their private lives together in ways that constitute arbitrary interference within the meaning of BOR14”.
Really? So, according to the judge, it was THE GOVERNMENT itself which interfered with and/or attacked Mr Sham’s privacy, family, home, correspondence, honour and reputation, in terms of BOR14, calling for the court’s intervention.
And what was that interference/attack? It was the failure to give legal recognition to his relationship with that unnamed gentleman! This was a classic case of a man pulling himself out of a hole by his own bootstrap.
This was how Keane NPJ understood to be the rationale of the joint judgment of Ribeiro and Fok PJ. This kind of logic could only be found in the pages of Alice in Wonderland, where reality dissolves in the ambiguity of words, with the Queen saying: “a word means what I want it to mean”.
Another rebuff by LegCo?
JUDICIAL IMPERIALISM
The CFA gave the government two years to come up with legislation to give effect to its Declaration.
The administration will, as with the case of W v Registrar of Marriages , eventually put a bill before Legco.
Would Legco pass it into law? Most unlikely, verging on the impossible. The CFA (by its majority ) had stepped way outside the constraints of law, exercising a form of judicial imperialism. The fact that the Chief Justice and another Permanent Judge had dissented would of course heavily influence the outcome in Legco.
The damage to the rule of law is incalculable: not least by opening up a huge chasm within the CFA itself, representing a difference in approach, culture and societal values.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.
Illustration at the top by fridayeveryday.