When rights are restricted they must also be protected
- At a time of concerns about protection of rights in the city, a landmark case will give insight into the legal boundaries concerning the transgender community
A landmark legal challenge to the government’s policy of only allowing people to change the gender recorded on their identity cards if they have undergone sex-reassignment surgery is to be heard by Hong Kong’s top court.
The case is a timely reminder that administrative practices and laws that restrict human rights are subject to judicial scrutiny and must meet certain standards. Such principles apply not only to transgender rights but to all human rights protected by the city’s mini-constitution, the Basic Law.
It is important that these principles are understood and applied, especially at a time of controversy and uncertainty over the impact of the national security law and new political landscape.
Hong Kong officials often remind us that human rights can be restricted. But this does not mean unlimited restrictions can be imposed. There are well-established rules governing how far such curbs can go.
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Similarly, the city’s outgoing leader Carrie Lam Cheng Yuet-ngor said people misunderstood the constitutional safeguards for press freedom, “that is, one will have to observe the law in exercising your freedom”.
These statements only tell part of the story. Of course, we want Hong Kong to be a law-abiding society. But one of the biggest threats to human rights around the world is the imposition of laws that unduly restrict them. Rights, therefore, need to be protected from laws as well as by them.
The Basic Law protects a wide variety of rights, from freedom of expression to the right to marry. It also incorporates the more detailed provisions of the International Covenant on Civil and Political Rights.
Those rights can only be restricted by law. The courts have established that such laws cannot be too broad. They must be “sufficiently precise”. This is to ensure that the community clearly understands what is and is not permitted.
Human rights can only be restricted if this is necessary to achieve certain objectives in the public interest, such as national security, protecting the rights of other people, and public health, among others.
Most cases turn on whether the restriction on the right goes further than necessary. Is the restriction proportionate? There are various legal tests for this, depending on the nature of the right concerned.
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This complex process, involving a delicate balancing act, has been developed by the courts over many years. It is underpinned by the Basic Law and forms an integral part of Hong Kong’s rule of law.
At a time of concerns about the extent to which rights are protected in Hong Kong and doubts about where red lines are to be drawn, these principles are more important than ever.
They should form a key reference point for officials, lawmakers, law-enforcers, as well as the courts. No part of the national security law, passed by Beijing, can be declared unconstitutional. But the security law itself requires human rights to be protected. The courts are still in the early stages of applying – and hopefully clarifying – that law.
Local laws and policies, meanwhile, are liable to be struck out by judges if they fail to meet the legal standards required to protect human rights.
The top court will, no doubt, provide fresh insight into the precise legal boundaries concerning rights of the transgender community when it hears the landmark case. Careful consideration is needed whenever rights are restricted to ensure the balance is struck in a way that ensures their protection
