LEGAL PROTECTION OF BASIC HUMAN RIGHTS FOR LGBTI IN HONG KONG

HONG KONG UNIVERSITY MONDAY, OCTOBER 10, 2011 MICHAEL J. VIDLER

Introduction 1. It is an honour and a privilege to be entrusted with the delivery of a topic so highly regarded amongst intellectuals worldwide to a group of people with so much extra-legal understanding to contribute. I take it as a grave responsibility, as well as a pleasure, to impart today what I think should be the first and foremost concerns of a non-lawyers interested in Hong Kongs human rights system.

2.

The organiser of todays talk, Mr. Ivan Lam, has very kindly noted my expertise in LGBTI human rights cases. Though I will not shy away from the number of hours of work many of these cases require, on the parts of ourselves, of barristers and of the clients themselves, I should begin by expressing my gratitude to two groups of people.

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3.

The first are not lawyers. They work often voluntarily and often without great recognition on what might be called the ground of human rights. Organisations such as Amnesty, Helpers for Domestic Helpers, UNISON and the Hong Kong Refugee Advice Centre engage directly with those citizens of Hong Kong who need the benefits of its human rights system the most the vulnerable, the poor, the unrepresented. In Hong Kong the unrepresented sadly often includes members of the LGBTI community. Without their work it is true that many human rights would be denied on a daily basis and I do not exaggerate to people unable to claim them or, worse, unaware of them.

4.

The second are most certainly lawyers. Many academics, members of the judiciary and in the fleeting case, legislators continually contribute to the development of a vast body of wisdom in law called jurisprudence that materially affects the experience of human rights for those on the ground. In Hong Kong we have, by repeated determination of our judiciary, the influence of years of human rights wisdom from other common law jurisdictions New Zealand, England and Wales, Australia and America to name but a few as well as from institutions that have similar constitutional provisions to ours; notably, of course the European Court of Human Rights in Strasbourg, which offers 38 years of expertise additional to our own post-1997 experience.

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5.

It is thus from a rich tapestry of knowledge that human rights lawyers weave their profession, and a sad but perpetual prism of state-neglect that they obtain clients to forge new ground. I remain grateful to all those involved, and do not suggest that were are yet even half way there.

This discussion 6. What are the obstacles to the developments of basic human rights for LGBTI in Hong Kong?

7.

That is a question posed to me often and one which I hope to address today. I, with many others, do not view human rights as a goal that can be reached, or as a set of boxes that can be ticked, but as an endless - and endlessly useful - means of continuing to improve our society. To develop human rights is to update and reinforce a process that can be used to obtain just and fair results time and time again. Citizens are entitled to just results before they are entitled to anything else, because they are humans. Obstacles to the development of human rights are often, accordingly, flaws in that process. They are defects in the tools of justice. It need not come as surprise to non-lawyers that governments, legislators and indeed private citizens continually find new ways to encroach upon the freedoms of those over whom they have power. Human freedoms and rights come before the law, and the tools of justice must be repeatedly sharpened to prevent consequent violations. I think the American jurist and Supreme Court Judge
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William J Brennan Jr. captured idea when he spoke of the amendments to the American Constitution: The Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.

8.

I also hope to show that no human rights are basic. Though they were born from a Universal declaration by the United Nations, thrust full of heroic intention that lay gasping at the atrocities of the Second World War, the interaction of homogenous, abstractly framed rights to privacy, to family, to marriage with the specific things that a localised group of people do and hold as custom, is intrinsically complex. What is outrageous to some might be quite divine to others - no doubt the intellectuals in Geneva and New York could not reconcile the right to life with the Ancient Greek's practice of leaving their disabled in the wilderness to starve and rot. Yet the important common thread between almost all states, however different they remain locally, is their guarantee. Most states have made an international pledge, in some form or other, to guarantee the protection of their citizens' human rights, which are generally framed identically. For that reason, the experience of other jurisdictions, of medical science, of anthropology and indeed of sociology is relevant to each state's human rights system; that experience is relevant to Hong Kong when we assess particular situations of abuse we can put Hong Kong on a world stage and assess its comparative

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development. That process, which we will begin today, and which I encourage you to continue, leaves most observers critical.

9.

In that vain I have identified three obstacles to the continued development of human rights in Hong Kong, and have attempted to identify means to overcome them. I have chosen, by experience and by request, to illustrate them with cases that address LGBTI issues, though it is important to stress that similar examples exist across the spectrum of human rights practice, and that the interdependency of rights renders continued isolated study fruitless.

10. What is immediately apparent about the LGBTI sphere of human rights in Hong Kong is how far we are behind the developments of other countries, some of whom still struggle to provide food and water to their families or education to their children. This malaise is shocking and embarrassing to a society that otherwise prides itself on provision of individual opportunity and social harmony, and that enjoys world-renown as a commercial and artistic hub of progress. We are developed why are our human rights not so?

The first obstacle: our lazy and self-interested government 11. Though our courts shoulder much responsibility in securing the guarantees of human rights they are to a large extent constrained by the Ordinances and

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Regulations promulgated by our government. There is no human rights court and no restriction on the content of the laws that LegCo makes (that is, until an offending law is declared unconstitutional, a process that takes upward of a year and that we will discuss later). The Government has repeatedly either failed to update the law in accordance with international norms or legislated to protect certain rights to the exclusion of others. It is useful to cite examples.

12. Regarding failure to legislate, it was not until 1991 that homosexual acts ceased to be a criminal offence. The United Kingdom, from whom we inherited the criminal prohibition, had set up The Wolfenden Parliamentary Committee to reconsider the matter as early as 1954; they found that: The laws function is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others. [It is n]ot, in our view, [...] to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.

13. France decriminalised homosexual acts by its Penal Code of Reform in 1790. Homosexual acts were decriminalised by Brazil in 1830, by Italy in 1870, by Japan in 1880, by Denmark in 1933, by Sweden in 1944, by Thailand in 1956, by Hungary in 1962, by the UK in 1967, by Canada in 1969 and by South Australia in 1972. Homosexual acts have never been illegal in Poland or China, indeed in
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1957 the Chinese Supreme Court ruled, when asked by the Heilongjiang Provincial Higher People's Court, that voluntary homosexual acts were not criminal. Yet it was not until 1980 that the Hong Kong Government set up the Ad Hoc Committee to consider the issue of decriminalisation, and though I cannot lay fault upon them for the 11 years of consultation that was required for the Bill to come before LegCo, that represents a significant lag behind the global community, during which Hong Kong homosexuals remained oppressed and foreign talent simply did not land.

14. I mention the issue of failure as it is, unlike an active decision made by the government, not liable to be challenged in court. There was no way of legally mandating LegCo to end the discrimination of homosexuals, notwithstanding its inconsistency with international norms, with understandings of contemporary science and, we now know by analogy with case law, with our own constitution. The guarantees of our Basic Law and Bill of Rights, to equality, privacy and marriage, among others, become hollow where LGBTI individuals are suppressed - either by citizens, employers or by the unavailability of particular benefits - and the Government simply declines to act. It is here that political action - lobbying, petitioning and awareness raising - becomes more important than the work that lawyers may do.

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15. Perhaps the most relevant contemporary situation in this regard is gay marriage, or equivalent civil partnership, which you will be aware is not provided for in Hong Kong. I regard this failure to legislate as representing blatant discrimination: homosexuals are, by the state, denied the benefits of marriage in Hong Kong. In addition to the crystallised bond of commitment that marriage offers, these benefits also concern one's finances including entitlement to property upon death and the availability of cheaper insurance products as well as one's liberty including the exclusion from conspiracy in criminal law and the ability to enter foreign jurisdictions as a partner's dependant. The same offending characteristics exist in this form of passive discrimination as those that Chief Justice Li, our most senior judge, observed in a case regarding the criminalisation of buggery: Discriminatory law is unfair and violates the human dignity of those discriminated against. It is demeaning for them and generates ill-will and a sense of grievance on their part. It breeds tension and discord in society.

16. During the passage of the United Kingdoms Civil Partnership Bill, three common and overlapping arguments were levied by its opponents. They were that: gay marriage is not condoned by religious doctrine that founds the institution of marriage; that exclusively-straight marriage is implicitly accepted by entrenched societal understanding; and that it is too sensitive a subject to legislate for without years of deliberation and discussion. None of those

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arguments are effective against my current assault on LegCos failure. That is because gay marriage is not required to remedy the situation. Indeed, the international understanding of the right to marriage, sadly, does not yet encapsulate same-sex relationships, and this was confirmed by the Human Rights Committee - that is the UN committee that presides over the International Covenant on Civil and Political Rights - as recently as 2002. What is required is the equal opportunity of citizens to obtain state-endorsed benefits, namely, the benefits of marriage. This is a discrimination argument. Failing to provide that opportunity in the form of some registration system falls foul of the positive duty that Hong Kong has undertaken to secure equality before the law. And there is, currently, no form of legal redress.

17. Nor, I should mention, can it be a defence to this inaction on the part of LegCo to suggest that marriage is centrally concerned with procreation or, in place of that, heterosexual intercourse. That is because the law has for a long time endorsed the use of condoms to avoid conception, and non-consummation where the parties wed for companionship. The cases arose in England around half-a-century ago, and involved one party seeking to have their marriage annulled on grounds either that the other party refused to dispense with contraception or that they refused to consummate altogether. In all of the cases the marriages were held valid. Neither procreation nor sex, then, is not the sine qua non of marriage; nor can their absence be a bar to same-sex partnership.

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18. Perhaps Eddie Murphy unwittingly cut through the smoke and mirrors of the institution of marriage and identified the problem as being unjustified differential treatment, when he said on his Raw stand-up comedy show: Hell, gay people got just as much right to be miserable as everybody else!

19. There is also a type of failure that shows an unacceptable disregard for the courts' place in deciding what is and isn't lawful. That is where an Ordinance or Regulation is declared invalid by our court, by reason that it is incompatible with the Constitution, but is not repealed, and remains on the statute book. How are citizens in public office and in private expected to govern their own behaviour if the question what is lawful and unlawful? differs depending on which state authority is consulted?

20. In 2006 the Hong Kong Court of Appeal unanimously declared four provisions of the crimes ordinance that criminalised buggery below the age of 21 to be unconstitutional. That was because they did not, also, criminalise heterosexual intercourse between people under the age of 21. The law discriminated, and it did so on the grounds of sexual orientation. In 2007 the Hong Kong Court of Final Appeal unanimously declared a further provision relating to buggery unconstitutional for the same reasons. That was the section that criminalised buggery in a bathhouse. In both decisions the courts confirmed that the
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constitutional right to equality before the law the right to non-discrimination prohibited the state from treating gay people differently to straight where it could not point to a good justification. I say confirmed as non-discrimination is perhaps the most fundamental principle of all legal systems, and has existed in English law since Lord Mansfield freed the black in Sommersett's Case back in 1772. To say that the decisions were overdue is, unfortunately, an understatement.

21. Yet over four years later the offending provisions remain on the statute book. In legal theory this is quite a conundrum, and represents a situation more usually seen in crushed states experiencing constitutional revolution or civil war. In practical terms it is quite unacceptable. How are a gay couple of 19 supposed to decide whether to become intimate? The wikipedia page entitled LGBT rights in Hong Kong notes the first case which concerns the age of consent; though one can find the Crimes Ordinance, section 118, with just as few clicks, too. There the couple would read that they are liable to life imprisonment if convicted. Suppose that the couple were wealthy enough to consult a lawyer on the matter. The best advice one could give would be that they would probably not be breaking the law, but that they may be arrested and may have to challenge in public court the legal effect of the text. That, I suggest, is by no means protection of the human rights to equality and non-discrimination, to certain and non-arbitrary laws that Hong Kong citizens are guaranteed under their constitution.

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The second obstacle: trepidation on the constitutional courts part 22. Since 1999 it has been possible to test one law against another. We can test any Ordinance or Regulation, indeed any administrative decision, against the guarantees of the Basic Law or the Bill of Rights. Those texts contain provisions that have globally been used to develop the legal standing of LGBTI individuals: rights to equality, family, privacy and marriage. Indeed, most importantly we know that the court is not only able to test government legislation against the constitution, but that when requested by a citizen it must; in 1999 the Court of Final Appeal held thus: [The courts of the Region] undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature [] or acts of the executive authorities [] are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid

23. Both the court and the legislature are below, in terms of authority, the constitution. Yet the constitution mandates the court to act as a check against the otherwise unrestrained ability of LegCo to create law. Such checking requires detailed and thorough examination of the contents of the rights within the Basic
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Law and the Bill of Rights. But that text is abstract. The words no one shall be subject to arbitrary interference with his privacy is broad enough to determine each and every case within its remit for or against the applicant, for so much can turn on the meaning of arbitrary, of interference and of privacy. It is not beyond the capacity of judicial technique to render such an abstract provision entirely without effect; so that where Mr Chan says the Government were recording his telephone conversations the court hold that the conduct was not interference as the contents were not disclosed; or where Ms Liu complains that she pays more tax than her analogous contemporaries as her same-sex Canadian marriage is not recognised in Hong Kong, the court say she does not enjoy family life.

24. To have any teeth, then, the words of the constitution must have an identifiable spirit; they must have a meaning that limits their semantic capacity, for otherwise the power of government lays unrestrained. The High Court of Delhi identified this problem in 2009, when finally outlawing the criminal prosecution of homosexuals on the ground that it denied them moral and full citizenship: [T]here are two things interconnected with [constitutional morality] which are not, unfortunately, generally recognised. One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form, by merely changing its form of

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administration and to make it inconsistent and opposed to the spirit of the Constitution.

25. What, then, has been the Hong Kong courts resolve? Generally, when faced with a local Ordinance that might be inconsistent with a constitutional provision family, marriage, privacy they have shied away from critically examining the concept of that right, or interpreted the foreign authorities in a quite original way, where to follow the normative international understanding would frustrate the intentions of LegCo. The result may well be a perverted the constitution. It is useful to cite an example.

26. In what has become known as the W case the applicant sought to have her birth certificate amended to reflect her new gender. Having been born a physical man she underwent surgery and had her identity cards and school reports re-issued to recognise her psychological and, later physical, female gender. She applied for a renewed birth certificate in order to marry her male fianc. The Registrar of Marriages refused, holding that she was still a man and the applicant sought to challenge the lawfulness of that refusal. I should note that the Director of Immigration, who is the same person as the Registrar of Marriages, re-issued her Hong Kong identity card with the female sex denoted.

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27. One of the questions for the court in August 2010 was whether the applicants right to marriage had been violated. In being forced to marry either a woman or no-one at all, the former not being an option given her heterosexuality, the right to marriage granted to every citizen in Hong Kong was, in her submission, effectively denied of her. A Grand Chamber that is 17 judges - of the European Court of Human Rights had considered the issue eight years previously and found a violation of the European right to marriage (which is framed identically). They found that: a. Every person has the right to marry b. The ability to begin a family is not a condition of that right c. Which means that the inability to conceive a child can be no bar to the enjoyment of the right to marry d. The applicant (a transsexual from the UK) could not change relevant government documents denoting gender and, thus, marry someone of opposite sex to her own e. That inability had to amount to a violation of the very essence of her right to marry

28. Yet the Honourable Mr Justice Cheung managed to completely avoid considering that case and indeed the issue of marriage at hand. He said this:

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when marriage is understood, as it is traditionally understood, as a voluntary union between persons of the opposite sex, that is to say, a voluntary union between a man and a woman, the definitional question becomes: what is a man or woman under the Basic Law?

29. But that is the wrong question to ask! The question for the court was more accurately if W can only marry a woman, even though she is for all intents and purposes, a woman, is she enjoying the right to marriage, or is it being withheld from her?

30. W did not ask the court to define marriage; she asked the court to say whether she was enjoying her right to it. That is the question required by the right, and required unanimously by 17 judges of the European Court of Human Rights. Given that there is no person in Hong Kong who is not guaranteed the right to marry, the humane answer is irresistible: to find that she did enjoy the right notwithstanding that she could only marry a woman, being heterosexual and having undergone irreversible reassignment surgery, would amount to forced homosexuality. This is also the conclusion reached by the great English family judge Lord Thorpe, in a now-famous dissent written in 2003.

31. Why was there such resistance to a declaration that the Marriage Ordinance was unconstitutional, then, if that declaration seemed so logically and ethically
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desirable? We can only speculate, of course, though I should note that the Government signalled a strong intention to oppose Ws proposition, flying over one of the most talented and highest paid barristers in England at tax-payers expense. I should also note that his honour now Lordship - repeatedly signalled his concern for the far reaching implications that a favourable judgment would have on other areas of the law. Lastly, it should not be forgotten that his honour expressed within the opening lines of his judgment a purported awareness of the issue of same-sex marriage. This, of course, was not a same-sex or sexual orientation case: it was a case about gender identity; though I would recall that the Government has repeatedly indicated its distaste for same-sex couples, refusing to recognise UK civil partnerships or Canadian gay marriages, and that it was Donald Tsang, devout Catholic, who spearheaded the Governments failed appeal in the age-of-consent discrimination case mentioned earlier.

The third obstacle: social harmony, societal consensus, majority rule 32. My third obstacle relates to the very purpose of a constitution that protects human rights itself. If the law were politics, it would develop with the zeitgeist and flicker with the whims of the population of a territory, just as the favourability of politicians and their policies drifts to and fro. In politics power is allocated not by principle but by number. The majority rules.

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33. Constitutional law, on the other hand, exists to protect minorities from the excess and self-preservation of the majority. The late Lord Bingham has written that the purpose of a bill of rights and a constitution is to give a measure of protection to minorities who lack the strength and the representation to obtain protection through the political process: prisoners, mental patients, gypsies, homosexuals, asylum-seekers, despised racial or religious minorities and the like

34. Nor is popularity of the minority an issue, as Australian Chief Justice Sir John Latham made clear in 1943, discussing the propriety of the Attorney-Generals decision to take possession of and occupy the hall used by a group of Jehovahs Witnesses: The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities

35. Thirdly, questions of the scope of the rights protected are most definitely legal questions. They require that judges establish facts, assess meaning of texts, work with a body of precedent and incorporate principles of interpretation. It would be incorrect to say that, when something is unclear, the answer must lie in politics, with politicians. The hardest questions of law are those that come up most infrequently. A politically-solved constitution, where hard questions were left to
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the politicians, would result in the grotesque paradox that those with the least ability to shout are most at risk of being drowned out. In this situation we cannot say that we even have the benefit of the rule of law; we have the rule of the mob; or the prejudice of the masses.

36. Yet that was the appropriate judicial solution, it was held, when trying to determine whether Ws right to marriage had been infringed. At paragraph 189 his honour determined that whether W could marry should be determined by societys consensus on the question of marriage: This close relationship between the law and societys general consensus and understanding regarding marriage and the essence thereof is important to a proper understanding of the fundamental right to marry

37. We can immediately see the harm done. W, as a member of a minority, seeks the laws assistance in treating her as and equal to others, who have the opportunity to marry a person of their opposite sex. The laws response is to subject that question to the parrot-like gusto of the majoritys view. Indeed, with the exception of the governments fiercely worded arguments there was before the court no opposition to W marrying. No social unrest. No campaign groups. Ws procedure through court was rendered akin to wasted votes in a democracy. Very expensive wasted votes. That his honour did not want to tread on the toes of his government, a point made earlier, became particularly clear at paragraph 192:
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Nor does the guarantee give the court a judicial licence to bring about a fundamental social and legal reform by interpreting (or re-interpreting) the right to accord with the courts own notion of what the institution of marriage ought to be

38. That, with respect, is exactly the licence granted to and mandated of the court where a citizen stands to be treated differently to others without objective justification. Though the public harbour prejudices, rationalisations and aversions to minority groups, including LGBTI members, those cannot be the judgments that wield power over a people, for we know too well that Where-ever law ends, tyranny begins

39. I finish with this point as it is the one over which I have most control. The appeal in W is to be heard this Wednesday through Friday, and counsel for W will be firmly submitting that determining her right to marry by societys consensus whatever that might be - is an unsuitable way to progress. It is a blunt and empty tool for administering justice that abdicates the court of its responsibility in answering questions of law. It opens the door to power determined by reaction rather than principle; and here we are reminded of that great constitutionalist Thomas Paine, who knew

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that in America THE LAW IS KING. For as in absolute governments the king is law, so in free countries the law ought to be King; and there ought to be no other

Conclusion 40. How are human rights protected for LGBTI in Hong Kong? My central argument is that things will not develop without a proactive legislature, a bold court and a strongly interpreted constitution. The importance of these tools is accentuated where there is no functioning democracy, as in Hong Kong; for the secondary, more frivolous check on government that is voting twice in a decade is left without the capacity to hold to account and eject those who dispense with a peoples will.

41. There is much to be done outside of law, though. Gay marriage, civil partnership, same-sex adoption, and, sadly, the full recognition of transgender identity, may all be developments that require some political pressure; some awareness raising; some general education. Small increments will also be made here and there: the Sexual Discrimination Ordinance does not prohibit discriminations of sexual orientation. You can fire your cleaner if you find out that he is gay. But public law has bared sexual orientation discrimination for some time now, and it is by analogy that a case will come, and hopefully I will be instructed solicitor, and we
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will ask the court to extend the public law protection to those in private situations: those renting apartments, in employment, managing others property.

42. His Honour Justice Cheung seems to think that the law should be updated as and after archaic understandings of LGBTI issues diminish from public

consciousness. I say the matter is rather reversed: as LGBTI individuals enjoy greater degrees of treatment at law that is analogous to others, so any remaining societal concerns will diminish.

43. Thank you.

Michael J Vidler Managing Proprietor Vidler & Co. Solicitors

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