Summary: A Principled Approach Towards Judicial Review: Lessons from W v Registrar of Marriages

Author: Puja Kapai
Summarised by Yoyo Lau (Associate)

The starting point of the essay is the Court of First Instance’s judgment by Cheung J in W v Registrar of Marriages, a case which discusses the right to marriage of a postoperative transsexual woman. The essay explores how the courts should approach constitutional challenges in relation to fundamental rights, especially the rights of minorities. 


The Paradox of Judicial Review

The essay raises a question of whether judicial review reflects the democratic legitimacy or the paradoxical impropriety. Jeremy Waldron (2005-2006 [1]), who objects the practice of judicial review, argues that letting the court to uphold the constitutional rights displaces the democratic will reflected in the outcomes of the legislative process. However, Waldron’s contention faces a number of criticisms: there are a variety of barriers in a genuinely enfranchised community; his reference to non-core cases is idealistic; and there is a risk of the tyranny of the majority. Regarding the circumstances, there are a lot of debates relating to the role and function of judicial review. 
 
The Role of Courts in Hong Kong

There are many unique features of the Hong Kong legal system: there is a “one country two systems” set-up; there is an executive-led government; and there is a lack of a fully democratically-elected legislature. These characteristics render the voices of minorities be often weakened in society. Moreover, concerning Cheung J’s emphasis on social consensus in his reasoning, it is rebutted that the legal position on the transsexual is not based on a democratic decision, but it merely inherits the legal position of the United Kingdom before the handover in 1997. The essay is of the view that judges are in the best position to examine the political legitimacy of laws provided their experience and skills. Hence, judicial review in Hong Kong should serve as a conduit for minority representation in controversial constitutional issues. 


 Comments

The courts are definitely “the last recourse” for minority rights protection in Hong Kong. Due to the deficiency of the executive and the legislature, only the strong-form judicial review is useful in safeguarding the rights of the LGBT+. Applying Kapai’s principled approach on Sham Tsz Kit v Secretary for Justice, where the court held that the government had no positive obligations to provide an alternative legal framework that allowed same-sex marriages, it is contemplated that the court should take a further step to review the laws about minority rights, and have a ruling in favour of the minority. The role of courts is deemed crucial in minority rights protection. It is hoped that courts in Hong Kong can take up more responsibilities and contribute to safeguarding minority rights.  

[1] Jeremy Waldron, ‘The Core of the Case Against Judicial Review’(2005-2006) 115 Yale Law Journal 1346