Articles: Human rights

ERO: one judicial review, two judges
Webb-site has learned that in a very rare move, the Chief Justice has directed that 2 judges sit together in the Court of First Instance to hear the judicial review of the Chief Executive's use of the Emergency Regulations Ordinance. (16-Oct-2019)
Carrie Lam and the separation of powers
After trying to breach the firewall between the 2 Systems with the Extradition Bill, she's at it again, invoking the ERO to enact law by regulation. The PFCR, which she says is subsidiary legislation, sets penalties higher than permitted by Ordinance. Subsidiary legislation cannot override existing Ordinances, so she had better not try. Meanwhile, basic maths and weekend events suggest the anti-mask law fails the rational connection test and is unconstitutional. (8-Oct-2019)
"Long Hair" gets short cut to final appealJustice is blind, except for haircuts
HK Court of Final Appeal, 13-Aug-2019
Mr Leung is granted leave for a final appeal to be heard on 18-Feb-2020. More people in wigs will hear his plea that male and female prisoners should have the same rule on haircuts. The UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts", after the Court of Appeal overturned the First Instance judgment which was in his favour.
Leung Chun Kwong v Civil Service & Inland Revenue
HK Court of Final Appeal, 6-Jun-2019
In a victory for common sense, Mr Leung, a gay man legally married overseas, wins. The CFA unanimously overturns the Court of Appeal, which found that the "prevailing views of the community on marriage" was relevant. In a nutshell, the whole point of prohibiting discrimination against minorities is to prevent the majority view (if there is one) from trampling over their rights. The CFA also held that there was no rational connection between denying Leung his employment benefits and joint taxation and protecting the institution of heterosexual marriage (if that is a legitimate aim).
"Long Hair" v Commissioner of Correctional ServicesJustice is blind, except for haircuts
HK Court of Appeal, 22-Jan-2019
Mr Leung's application for leave to appeal to the CFA is dismissed. Mr Leung must now take a short-cut, so to speak, and go directly to the CFA, where more people in wigs may hear his plea that male and female prisoners should have the same rule on haircuts. Amazingly, neither side seems to have mentioned that the UK removed the different treatment by 1999, as we reported last year in "Justice is blind, except for haircuts".
QT v Director of Immigration
HK Court of Final Appeal, 4-Jul-2018
The CFA upholds the CA ruling that QT was subject to unreasonable discrimination in her application for a dependent visa on grounds of her homosexuality, as there was no rational connection between the stated objective of attracting talent to HK and the policy restricting this benefit to heterosexual married persons. The CFA, disagreeing with the CA, also rules that there are no "core rights and obligations" of marriage such as adoption or inheritance that are immune from justification when discrimination is alleged.
Leung Chun Kwong v Secretary for the Civil Service & anotherSDO Section 7
HK Court of Appeal, 1-Jun-2018
The CA overturns the CFI decision granting Mr Leung benefits for his same-sex partner/spouse and upholds the decision denying him joint assessment for tax. The bigger question, regardless of sexual orientation, is this: why does the Government grant benefits based on marital status in the first place, and is that legal? The Sex Discrimination Ordinance, Section 7(1), prohibits discrimination based on marital status. Employees of equal rank and performance should not have different value of remuneration based on marital status. Mr Leung's complaint was that he did not qualify for discriminatory treatment in favour of married people, but why is there any such discrimination?
Leung Chun Kwong v Civil Service & Inland Revenue
HK Court of Appeal, 1-Jun-2018
Justice is blind, except for haircuts
The Court of Appeal rules that a prison order requiring men to have short hair and allowing women to choose is not discriminatory, because of societal norms for haircuts. We find substantial flaws in this reasoning. We also find that the UK rule which HK inherited was amended by 1999 to remove the discrimination, something that Long Hair's lawyers appear to have overlooked. (1-May-2018)
QT v Director of Immigration
HK Court of Appeal, 25-Sep-2017
In a landmark decision, the Court unanimously grants the appeal by a person in a same-sex British civil partnership, ruling that the policy indirectly discriminates against gay couples in a civil partnership or marriage recognised overseas, because it grants a benefit (a dependent visa) only to spouses as defined by HK law, of the opposite sex, for which they cannot qualify. There is no rational connection between the legitimate aim of immigration control and the means adopted. Our take: this very thorough and well-reasoned ruling will impact other policies which adopt heterosexual marriage as a criterion for benefits. The Government may try to go to the Court of Final Appeal, but they are unlikely to succeed in overturning this.
Leung Kwok Hung v Commissioner of Correctional Services
HK Court of First Instance, 17-Jan-2017
In a victory for male equality, "Long Hair" succeeds in a judicial review of the decision to require that his hair be cut short on admission to prison. The rules state that a female prisoner is entitled on request to have her hair cut "especially before discharge or production in court. Except as recommended by [Medical Officer], a female prisoner's hair shall not be cut shorter than the style on admission without her consent." A point not addressed is that men are apparently not entiled to have a haircut before court appearances.
QT v Director of Immigration
HK Court of First Instance, 11-Mar-2016
Wang Qiaoling's battle to find missing lawyer husband, Li Heping
BBC, 10-Sep-2015

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