Introduction In the case W. v Registrar of Marriages, W is a transgender woman who seeks the right to marry a man.

This case is brought to the court of final appeal, in which CFA has ruled that Ws constitutional right of marriage has been violated. To correct this, the court believes that a remedial interpretation on the word woman should be used in the Marriage Ordinance and Matrimony Causes Ordinance. This essay will dissect the reasoning and decisions made by the Court of Final Appeal and evaluate them by asking three questions: whether the reasoning and the decisions i) adhere to the constitutional framework of the HKSAR; ii) respect the doctrine of binding precedents, and iii) whether the rule of law is achieved. In this instance, the author of this essay believes that the CFA decision in W. v Registrar of Marriages has adhered to the constitutional framework of the HKSAR, respects the doctrine of binding precedents, and has achieved the rule of law. Constitutional Framework of Hong Kong and the incorporation of Common Law Precedents The decision of the Court of Final Appeal is one that attempts to follow the constitutional framework of Hong Kong and one that respectfully considers the common law precedents. The constitutional framework for Hong Kong post-1997 is described under the Basic Law. The decision made in W. v Registrar of Marriages is one that follows the constitutional framework of Hong Kong as close as possible. Article eight of the Basic Law states that The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region. In the case, the definition of woman as defined in the Marriage Ordinance and the Matrimony Causes Ordinance originally meant W was not a woman, as based on the Common Law Precedents, based on the case Corbett v Corbett1. However, the Court of Final Appeal deems that if that definition is taken, it would be contrary to the Basic Law, which states that The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.2 Since the two ordinances are now contravening the Basic law, a remedial interpretation was taken. Although the decision rejected the definition of woman in Corbett anyway, the Court of Final Appeal does a rigorous and thorough process or reasoning which adheres to the constitutional framework of Hong

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W, Paragraph 48 Article 37, Hong Kong Basic Law

Kong, while carefully considering and incorporating Common Law precedence inside the decision. On a side note, it is worth noting that the amendment of the definition of woman in the ordinances should be by the legislature of the Hong Kong Special Administrative Region3. While the remedial interpretation may induce criticism of how the Court of Final Appeal is not adhering to the framework, it is stated that (the court) has the duty to declare (an unconstitutional legislation) invalid or to provide with a remedial interpretation4. The court in this case has chose the latter, in which Bokhary NPJ discusses to be more respectful to the separation of powers, discussed in later parts of the essay. This further shows how the Court of Final Appeal respects the separation of powers- another key feature of the constitutional framework of Hong Kong. The Court of Final Appeal also upholds the protection of civil liberties under the constitutional framework, in particular, the freedom of marriage and the equality of all Hong Kong residents in front of the law. The protection of the sexual minority is upheld by the court, which is in line with article 25 of the Basic Law, stating that All Hong Kong residents shall be equal before the law. The right to marriage of such sexual minorities is also upheld, in line with article 37, in which we have just discussed. Civil Liberty, a vital and pivotal part of the constitutional framework of Hong Kong, can thus be seen to be upheld by the Court of Final Appeal in this case. Judicial Reasoning Techniques and the Doctrine of Binding Precedents In W. v Registrar of Marriages, the Court of Final Appeal has respected the doctrine of binding precedents to the greatest extent and has applied judicial reasoning techniques that are modern and applicable to the context of the 21st Century Hong Kong. The doctrine of binding precedents, or stare decisis, means that a court of a lower hierarchy must adopt the legal reasoning and principles of a higher court, for the purposes constituency of judgments. According to of the Basic Law, while the Hong Kong Court of Final Appeal is not bound by any other court, the court may refer to precedents of other common law jurisdictions5. In this case, the Court of Final Appeal, despite being able to make its own decisions, has carefully considered the cases of the English Common Law and has found them highly persuasive in deciding the judgment: For example, the ratio of Corbett has been considered to be authoritative regarding the common law incapacity of a post-operative

Article 8, Hong Kong Basic Law W, paragraph 121 5 Article 18, Hong Kong Basic Law
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male-to-female transsexual to marry in her acquired gender6 (despite being re-considered in later parts of the judgment); also, the ratio of Goodwin v UK has been considered, and the CFA shares the view...that it is not at all apparent that the chromosomal element should take on decisive significance in the legal attribution of gender identity7 . It can be therefore said that the CFA has respected the doctrine of binding precedents. However, one may argue that the Court of Final Appeal is selective as to which cases it chooses to follow. Indeed, the Court is faced with opposing opinions: The judgments of Goodwin and the judgments of Bellinger and Corbett are essentially incongruent with each other. It is therefore imperative for the Court to come up with sound judicial reasoning to back up the cases in which it chooses to follow. The Court of Final Appeal has carefully considered factors that would be of relevance of the modern context of the 21st Century Hong Kong, which include Medical advances and changed societal attitudes8 and the importance of psychological and social factors as criteria9 and rejected the argument that procreation is one of the key elements of marriage with the current changes in the institution of marriage10. As we can see, the Court of Final Appeal has applied persuasive judicial reasoning techniques in distinguishing the modern institution of marriage from the context of Corbett and Bellinger. The Achievement of the rule of law In W. v Registrar of Marriages, rule of law is achieved. Analyzing the case from the procedural justice viewpoint, the right to a fair trial and the separation of powers in the case is respected. The right to a fair trial is a principle that is always followed in Hong Kong, and this case is no exception: W is given the right to a fair trial. The separation of power in this case should be of interest in this case. When a piece of legislation is unconstitutional, it (the court) has a duty either to declare it invalid or provide a remedial interpretation rendering the provision consistent with the constitution.11 The Court of Final Appeal in this case has chose to take a remedial interpretation instead of striking it down, and this interpretation in my opinion has to its best extents achieved the separation of powers. As put by Justice Bokhary NPJ, striking down a legislation would be to nullify the power of the legislation, whereas the remedial interpretation can act in the role of alert the political branches12 and not to tread on the powers of the legislature. With respect to
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W, paragraph 39 W, Paragraph 97 8 W, Section F.7(a) 9 W, Section F.7(b) 10 W, Section F.6 11 W, paragraph 121 12 W, paragraph 223

the two perspectives listed, we can see how procedural justice is upheld in the case. Substantive justice in this case can be measured in whether W was treated as an equal before the law and whether her fundamental rights are protected. Being a sexual minority, W appears as an equal on the court and is not discriminated. Furthermore, her fundamental rights are protected, as Ws constitutional rights to marry a man and create a family of her own are recognized by the Court of Final Appeal as decided in the judgment- both in which are key cornerstones to substantive justice. Conclusion In conclusion, in regard to the points discussed above, the author of the essay believes that the CFA decision is a well-reasoned and sound judgment that endorses the spirit of the law. The upholding of the constitutional framework, the respect doctrine of binding precedents and the achievement substantive justice and procedural justice are points that are discussed in this essay, but are by no means the only ways it has defended the spirit of the law.