It appears to be a curious fact of judicial life that judgments in the High Court are often models of objective legal lucidity, as are judgments in the Court of Final Appeal. But something comes over judges when they are appointed to the Court of Appeal.
Consider the long-awaited judgement in the case of a civil servant, married to another man, who sought judicial review of the government’s decision not to accord him the benefits accorded to civil servants in more conventional marriages.
Mr Justice Andrew Cheung, presiding, based his decision to overrule a lower judge who had granted the relief sought by citing the Basic Law. This, he said, meant that the situation in Hong Kong was different from that in other places.
The relevant part of the Basic Law goes like this: “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.
In Cheung’s view this has “embedded in it” the traditional view of marriage. But this is an elementary error. The law is what it says it is. Clearly, if the Basic Law says Hong Kong people have freedom of marriage, that may or may not be interpreted as meaning that they have a right to marry persons of the same sex if they choose.
But that was not what the court’s decided. The court’s view was that “freedom of marriage”, because it did not specifically include same–sex unions, must be held to exclude it.
Mr Cheung, in fact, seems to be trying to have his cake and eat it. At the same time he wants to rule that the Basic Law overruled everything which came before it, but also that “traditional, historical, social, moral or religious background and values” must be decisive.
Mr Cheung thinks that the position of the Basic Law has to be accepted until the Hong Kong mini-constitution is changed or there is a “definitive court interpretation”. And what is the Court of Appeal for, one wonders, if not to provide definitive court interpretations?
Then we have the argument that, as Mr Cheung puts it, that the law “is and has always been understood” to mean that the Basic Law “constitutionally guarantees the right to heterosexual, not same-sex, marriage”. I would have thought Mr Cheung was old enough to make a distinction between the age of the Basic Law (21 years) and “always”.
But leaving that aside, legal history is full of statutory interpretations which prevailed “always” until some court with the power to do so looked at the original statute and decided that the conventional interpretation was wrong. And after all, the question of same-sex marriage or its implications does not come up that often.
It is difficult to avoid the impression that the judges in this case have simply foisted their own prejudices and opinions on the Basic Law and turned a rather simple matter into a complicated constitutional one.
Because when you come down to it, the civil servant who brought this case was not seeking the right to marry another man in Hong Kong. He is already married to his husband, perfectly legally because the wedding took place in New Zealand, where such unions are allowed.
The only question which the court had to consider was whether he should be treated the same way as other civil servants who contract lawful marriages in places outside Hong Kong.
Marriage overseas presents many opportunities to elude Hong Kong’s traditional background and values. Some countries have different ages at which the participants can legally consent, some have different ages at which the consent of a parent or guardian is required, some countries require notice and some do not.
Some countries allow solemnisation by an imam, some by a priest, some by a civil magistrate and some by almost anyone.
Among the more esoteric possibilities available to globe-trotters are the places where a bride is traditionally purchased by the donation of a small herd of cows to her family, and the places where 12-year-old girls are married to men 40 years older than them whom they have never met before the wedding. I do not know if there is any truth in the story that Russian sex workers could be purchased by lonely bachelors from Vladivostok pimps, but the point is that the civil service did not inquire.
Cheung J professed to be worried that if the government lost the case it would “lead, almost inevitably, to similar extensions in other areas concerning, for instance, public housing, social welfare, public medical benefits, employment benefits and protection, pensions and life insurance”.
But he has now launched the government down another slippery slope, towards the position where It may, as the “custodian of Hong Kong’s prevailing socio-moral values” feel called upon to sit on judgement over the acceptability of marriages conducted in other jurisdictions.
Hong Kong has no jurisdiction in New Zealand and has hitherto accepted that a marriage which meets New Zealand’s requirements is valid for all purposes in Hong Kong. Are we now to question marriages solemnised in Nevada, Afghanistan, Taiwan…?
And where, in any case, did judges find the idea that our government is the custodian of the public’s values? I do not know anyone who would buy a used value from this government, whose twin functions are to protect the rich in the enjoyment of their wealth and implement the policies of the Liaison Office.
The government, like the Court of Appeal, cannot both have its cake and eat it. Having shredded its already flimsy facade of democratic legitimacy, it has no claim to embody the public’s desires or preferences. It is simply an imposed colonial administration. People in search of moral guidance will look elsewhere.
But not, please note, to the Court of Appeal.