A matter of basic rights

PUBLISHED : Wednesday, 18 February, 2004, 12:00am
UPDATED : Wednesday, 18 February, 2004, 12:00am

With the debate over the constitutional review raising questions about the correct interpretation of the Basic Law, I cannot help but wonder if different interpretations may also arise from Article 37, which says: 'The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.'

Currently, same-sex couples in Hong Kong are denied the freedom to marry and, to add insult to injury, the government does not recognise same-sex marriages that took place, legally, abroad. The administration maintains that Hong Kong law defines marriage as between a man and a woman. But this may be an infringement of Article 37.

Constitutional debates surrounding same-sex marriage are raging in North America. Following the lead of Ontario and British Columbia in Canada, a court in the US state of Massachusetts made a ruling last November to support same-sex marriage. In each case, the rulings were made based on the interpretation that banning same-sex couples from marrying infringes the constitution of the respective jurisdiction. The same thing may well happen in Hong Kong in the near future.

Should that be the case, the government would have two options: amend the law accordingly, or turn to the National People's Congress for help, as it did with the right-of-abode ruling in 1999. The NPC would need to override the court judgment by declaring that the definition of marriage is limited to between a man and a woman.

This kind of constitutional manoeuvring is already under way in the US. After the court ruling, those Massachusetts lawmakers who oppose same-sex marriage have, on three occasions, proposed a bill to amend the state constitution to restrict marriage to a man and a woman. Each time the bill has been defeated.

On February 12, San Francisco Mayor Gavin Newsom ordered the county clerk to begin issuing marriage licences to same-sex couples, despite a state law in California that restricts marriage to a man and a woman. His action has ruffled a lot of feathers, and some conservative groups are threatening to sue him for violating the state law. But Mr Newsom has defended his actions, saying that his office is 'reading the direct language within the state constitution ... do the right thing and extend the privilege that's extended to my wife and myself, and millions of us across the country, to same-sex couples'.

Court hearings are being held to decide the legality of Mr Newsom's action, but hundreds of same-sex couples from across the country have already flocked to San Francisco's City Hall and obtained a licence.

President George W. Bush, on the other hand, is backing an amendment to the federal constitution, a move that would end the hopes of millions of Americans to marry their same-sex partners - and even put existing licences in question. But this move is unpopular, with recent surveys showing that more than half of all Americans oppose tinkering with the constitution over same-sex marriage. Even conservative politicians are loath to make it a constitutional issue.

The concern is very understandable. The purpose of any country or region's constitution is to ensure its citizens' fundamental human rights. It should be regarded as sacred and not be amended unless absolutely necessary. The prospect of amending it just to cast a broad class of citizen out of the marriage system is unappealing, even to many conservatives.

Whether there will be a similar constitutional fallout in Hong Kong may depend on how the special administrative region's government handles it. For now, it seems, it is resorting to stalling tactics. But as more countries legalise same-sex marriage, it cannot simply turn a blind eye. According to the law, 'a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed' shall be regarded as valid in the SAR.

The Canadian federal government has given up the idea of appealing against the court judgments, and is looking to legalise same-sex marriage nationwide. That will make Canada the third country, after the Netherlands and Belgium, to do so. What is more, Canada has no residency requirements for marriage registry, and same-sex couples from around the world could benefit from the move.

The South China Morning Post has been closely following the case of Roddy Shaw Kwok-wah and Nelson Ng Chin-pang, both from Hong Kong, who married in Ontario last year after the landmark ruling. So far, the Inland Revenue Department has refused to accept their application for spousal tax exemptions, reasoning that Hong Kong law restricts marriage to between a man and a woman. The couple is considering legal action. With more Hong Kong same-sex couples planning to wed in Canada, the department will, no doubt, face increasing pressure.

When Disneyland Hong Kong opens in late 2005 or early 2006, many of its employees will come from the United States. The Walt Disney company is one of many US corporations that extends domestic partnership benefits to same-sex spouses. The Hong Kong government is risking a diplomatic nightmare by refusing to face up to the issue. I urge it to immediately look at legalising same-sex marriage.

Reggie Ho is a Post journalist and secretarial co-ordinator of Horizons, a listed charity which promotes equal opportunities on the grounds of sexual orientation