Policy making in Hong Kong should be evidence-based

Executive Council convenor and Legislative Council member Regina Ip recently asked Secretary for Justice Paul Lam questions that highlighted the government’s repeated loss of court cases focusing on the recognition of same-sex marriage.

Ip asked why the government “insisted on lodging appeals despite considering that the cases would have a low success rate.” Put more bluntly, she asked whether the appeals were a waste of taxpayers’ money.

Lam replied that “the likelihood of success is not the only consideration” for appealing a decision and that authorities also considered the “overall public interest, such as the political, social and economic impacts.”

He also reasoned that “for significant issues, an appeal process must be undertaken so as to obtain a final and authoritative ruling. More significantly, the most important aspect of litigation, aside from the outcome, is the reasoning of the judgments.” 

The Court of Final Appeal’s most recent landmark rulings, handed down on November 26, 2024, encompassed three separate cases that centred on the rights of same-sex couples legally married overseas to apply for public housing and to inherit property from their spouse.

The government lost all three cases at every court level.

A key point was how to balance the fundamental right to equality which everyone, including same-sex couples, should enjoy – as laid down in the Basic Law and the Bill of Rights – with other constitutional provisions, such as the right to social welfare “according to the law.”

Three issues jump out.

First, the government claimed that it must deny same-sex couples who are legally married overseas the right to apply for public housing as a “married couple,” which entitles them to a much shorter waiting time, to preserve the coherence of the concept of marriage.

Hong Kong’s Marriage Ordinance defines marriage as only between one man and one woman. The government uses this to argue that coherence trumps equal rights.

The Court of Final Appeal pointed out that over the years the government has designed and the Legislative Council has approved in law several definitions of a “valid marriage,” most of which say nothing about “one man and one woman.”

The law also recognises any form of marriage (including polygamous marriages) lawfully
entered into overseas depending on the purpose of the law. Therefore, the so-called coherence of the concept of marriage is complete fiction.

In the ruling, the top court judges wrote they “consider it highly questionable whether the coherence aim proposed by the SJ [secretary for justice] is ever likely to constitute a legitimate aim capable of justifying prima facie discriminatory differential treatment.”

Presumably, the Department of Justice will now drop this line of argument.  

Second, the judgement on the applications for public housing criticises the government – the Housing Authority (HA), advised by the Department of Justice – for failing to provide evidence where evidence was required.

For example, the HA claimed that if a same-sex couple was allowed to apply for public housing as a married couple, it would reduce the public housing supply for straight couples. The Court of Final Appeal observed that HA provided “no evidence at all” to substantiate the claim.

The government repeatedly made this claim at every court level – and it never provided evidence although judges repeatedly told the HA to do so.

Throughout these proceedings, the government advanced various speculations about the impact of allowing same-sex couples to apply for public housing.

For example, officials claimed that this recognition of same-sex marriage would “erode the status” of opposite-sex marriage, or that permitting same-sex couples to apply for public housing as a married couple would undermine the “family aim” of Hong Kong’s public housing policy.

Judges pointed out that they thought the aim was to provide housing for low-income groups.

In this sense, Ip is right. Repeatedly appealing, knowing that evidence is required but failing to provide it, is a waste of public resources. A more rational strategy would have been to delay the appeal until the government could provide the evidence or to drop the case for lack of evidence.

The government did neither. Instead, it wasted taxpayers’ money appealing weak cases – cases the government could not win. 

The secretary for justice claims that appeals are needed to understand judicial reasoning. However, the government’s repeated failed appeals not only show its refusal to learn but also spell out the weaknesses of the cases. Authorities should have addressed them.

Third, and most alarming, is the possibility that the HA’s public housing allocation policy is not evidence-based. The government failed to provide evidence to support HA’s speculations about the impact of equal treatment for same-sex couples because there is none.

This is a fundamental problem because it means that the HA’s policy is based on personal values, prejudice, religious values, or other subjective and irrelevant considerations. As the Court of Final Appeal pointed out, these issues are not “unknowable.” And yet apparently the HA chooses not to know. 

When did the government decide that it would exclude same-sex couples as a class from applying for public housing as a married couple? How many applications submitted by same-sex couples have been denied? How many gay couples have been deterred from applying because they knew they would be rejected? 

We expect our public servants to learn and be rational. Repeatedly submitting the same inadequately evidenced briefs is not rational behaviour. Moreover, at a bare minimum, public policy should be evidence-based.

What we learn from these cases is that apparently at least one government department has been allocating limited and scarce resources based on personal whim, prejudice, religious values or some other irrelevant criterion. We deserve better.

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