On July 24, 2022, the US Supreme Court overturned the landmark 1973 Roe v. Wade, the “custodian” of the federal constitutional right to an abortion for almost 50 years, fueling protests across the country. The court decision has provoked a political earthquake reaching as far as Europe. Hong Kong must learn from this to insulate our Judiciary from politicizing.
In Roe v. Wade, the court held that the Due Process Clause of the Fourteenth Amendment to the US Constitution provides a fundamental “right to privacy”, which conferred a woman’s right to an abortion. Justice Alito, the Republican-nominated judge, delivered the opinion of the court that overturns Roe v. Wade, contended that although the provision guarantees some rights that are not mentioned in the Constitution, any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”, but the right to abortion does not fall within this category. Why a U-turn by the court after nearly 50 years?
Paradoxically, for the first 185 years after the promulgation of the US Constitution, the issue was addressed through the legislative process. Until 1973, the Supreme Court decided Roe v. Wade. The sudden change occurred amid the American constitutional revolution. In 1953, Earl Warren became the chief justice. The Warren court embarked on the idea of the “living constitution”, that a constitution must draw meaning from the “evolving standards of decency that mark the progress of a maturing society”. This deviated from the preceding judicial philosophy, “Originalism”, which holds that the Constitution must be interpreted based on the original understanding at the time it was adopted. Despite three-quarters of the states making abortion a crime when the Fourteenth Amendment was adopted, and the Constitution making no reference to abortion, the then Supreme Court decided that the right to abortion was “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” in the 20th century. By overturning Roe v. Wade in 2022, the incumbent justices have restored “Originalism”.
Adhering to the “living constitution” has brought significant repercussions to the US political ecosystem. Under such a philosophy, the Constitution holds a relevant meaning that evolves and adapts to new values and standards beyond the original text. Since the power to interpret the Constitution vests with judges, the natural and reasonable effect of it is to rely on non-democratically elected judges to decide on the values and standards of contemporary society. This empowers the court to adjudicate controversial societal issues, including, inter alia, abortion and same-sex relationships, consequently terminating all pertinent legislative processes. To ensure the court’s rulings align with party preferences, political parties vow to nominate justices who advocate compatible stances, thereby politicizing the appointment of judges, and thus the judiciary.
Moreover, contentious societal issues should be addressed through the political process, where the majority rules after persuasion, instead of relying on judges who are institutionally unequipped to reflect the values and standards of a society
The pursuit of the right to abortion through the Supreme Court instead of taking the Congressional route in the US resembles the LGBT rights movement in Hong Kong. Same-sex marriage is not recognized in Hong Kong, and the Basic Law makes no reference to same-sex relationships either. But according to some advocates of LGBT rights, due to the government’s inactivity on the issue, Hong Kong’s LGBT rights movement is largely dependent on judicial challenges.
The most significant court decision on Hong Kong’s gay rights is QT v. Director of Immigration. A British female national who entered into a civil partnership in Britain challenged the director’s decision of refusing to grant her a dependant visa to stay in Hong Kong as the “spouse” of her same-sex partner. The director argued that “spouse” meant a marriage between a man and a woman under Hong Kong law. The Court of Final Appeal (CFA) rejected the director’s primary argument that differential treatment between same-sex civil partners and a married couple required no justification, thereby ruling in favour of QT.
This judgment embarks on the path to pursuing LGBT rights through the Judiciary. As High Court judge Chow Ka-ming held in a later LGBT-related case, there are over 100 government policies that are vulnerable to challenge on similar grounds, citing a report commissioned by the Equal Opportunities Commission. Subsequent LGBT-related litigations verified Judge Chow’s anticipation, including, inter alia, civil servant Leung Chun-kwong gained the right for overseas same-sex couples to enjoy the same level of taxation status as heterosexuals in the civil service in 2019; in 2020, a homosexual couple married in Canada won the judicial review to apply for public housing as a two-person family. Hong Kong’s LGBT rights movement is now predisposed to judicial challenges, a resemblance to the practices in the US.
Nevertheless, Hong Kong courts have largely maintained judicial restraint, strictly complying with the original meaning of the Basic Law when it was adopted by the National People’s Congress, refusing to defect to the “living constitution” philosophy. In Kwok Cheuk Kin v. Director of Lands and Others v. Heung Yee Kuk, one contesting issue was the interpretation of “traditional rights” for indigenous villagers. The Court of First Instance considered that to be “traditional”, a right or interest of the indigenous villagers had to be “traceable” to a right that his ancestors had enjoyed before the lease of the New Territories in 1898. The Court of Appeal, by comparison, held that a right is “traditional” if it was recognized as such by the Basic Law drafters at the time of its promulgation in April 1990. The Court of Final Appeal concurred with the Court of Appeal, thus adhering to the original understanding at the time the Basic Law was adopted.
Upon the promulgation of the National Security Law for Hong Kong and improvement of the electoral system, Hong Kong’s executive and legislative branches are in the safe hands of patriots, signifying the overall jurisdiction of the central government over Hong Kong. The Judiciary should not stretch beyond its power from adjudicating cases to legislating by adopting the “living constitution” ideology. The interpretation of the Basic Law must never deviate from its original meaning when it was adopted by the NPC. Any detour is prima facie a challenge to the NPC’s authority. Ultimately the power of interpretation of the Basic Law is vested in the Standing Committee of the NPC. Moreover, contentious societal issues should be addressed through the political process, where the majority rules after persuasion, instead of relying on judges who are institutionally unequipped to reflect the values and standards of a society, particularly when the Basic Law makes no reference to it. If the US Supreme Court is further politicized by intervening on those issues, it follows a fortiori that Hong Kong courts would suffer from identical consequences. However, Hong Kong courts have largely upheld judicial restraint, not only is it the correct political conduct, but it also insulates the court from being politicized, thus safeguarding judicial independence, a bedrock of success for Hong Kong. All of us must be extremely vigilant in ensuring the Judiciary maintains this course.
The author is a strategy consultant with a state-owned enterprise.
The views do not necessarily reflect those of China Daily.
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