Court of Final Appeal of the Hong Kong Special Administrative Region: In a significant decision, wherein the Court was considering an appeal raising the issues of non-recognition of same-sex relationship in Hong Kong and absence of any alternative legal recognition of same-sex partnership, the Bench of Chief Justice Cheung, Justice Ribeiro PJ, Justice Fok PJ, Justice Lam PJ and Justice Keane NPJ with a majority of 3:2 issued a declaration stating that failure of the Government to fulfil its positive obligation to establish an alternative framework for legal recognition of same-sex relationship and to provide for appropriate rights and obligations attendant on such recognition, violated the appellant’s rights under Article 14 of the Hong Kong Bill of Rights (BOR14 ).
Background: The appellant who is a permanent resident of Hong Kong, entered into a stable same-sex relationship in 2011 in Hong Kong. Not being able to get married locally, he and his partner entered into a same-sex marriage in New York in November 2013. However, their marriage is not legally recognised in Hong Kong.
In the absence of any Hong Kong law for same-sex marriages to be entered into or for such marriages contracted abroad to be recognised, the appellant brought judicial review proceedings for the Court’s determination on following three questions-
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Whether he has a constitutional right to same-sex marriage under Article 25 of the Basic Law (BL25) and Article 22 of the Hong Kong Bill of Rights (BOR22)?
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Whether the absence of any alternative means of legal recognition of same-sex relationship constitutes a violation of BOR14 and/or BL25 and BOR 22?
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Whether the non-recognition of foreign same-sex marriage constitutes a violation of BL25 and BOR22?
The 5-Judge Bench of the Court unanimously dismissed the appeal on questions 1 and 3 and a majority of 3:2 allowed the appeal on question 2.
Court’s opinion on Question 2:
A joint majority judgment was delivered by Ribeiro PJ and Fok PJ and joined by Keane NPJ, wherein the Judges acknowledged the need of same-sex couples for access to an alternative legal framework in order to meet basic social requirements and to have a sense of legitimacy which dispels any sense of them belonging to an inferior class of persons whose committed and stable relationships are undeserving of recognition.
The right to privacy under BOR14 is engaged and is infringed by the arbitrary interference with the private life and dignity of same-sex couples resulting from difficulties faced by them in the ordinary course of their private lives, and their exposure to the publicity, stress, uncertainty and expense of litigation in judicial review proceedings.
The majority accepted that the Government enjoys a flexible margin of discretion in deciding the content of the rights and obligations to be associated with the scheme of legal recognition to be devised, including a “core” of rights necessary for establishing a legal framework for recognising and defining the main incidents of a same-sex relationship to give effective legal protection to that relationship.
Chief Justice Cheung and Mr Justice Lam PJ gave their dissenting opinion on question 2. The Chief Justice rejected the appellant’s claim based on equality as it is equivalent to asking for same-sex marriage in another name.
The appellant’s case for legal recognition of his same-sex relationship with his partner based on the right to privacy invokes different considerations. Unlike his case based on the equality provisions, the case on privacy does not depend on any comparison between his and his partner’s case and that of a different sex couple. Under the privacy argument, the focus is on the non-interference of and respect for the applicant’s privacy or private life as an individual.
Chief Justice Cheung stated that the non-recognition of same-sex partnership does not amount to any interference of privacy. Based on the equality rights under BL25 and BOR22, individual rights and benefits cannot be withheld from same-sex couples in comparable situations with opposite sex couples without justification. The repeated need to go to court to enforce such rights and benefits merely reflects the fact that under BOR14 there is no positive duty on the part of the government and legislature to facilitate and ensure the full enjoyment of privacy as such, rather than constituting an interference by itself.
Meanwhile Lam PJ agreeing with Chief Justice Cheung, stated that Art. 8 of ECHR imposes more extensive obligations than BOR14 and in this context Hong Kong should not adopt the Strasbourg jurisprudence as guidance on the substance of the rights conferred under BOR 14. Though mere non-recognition of same-sex relationship does not constitute “arbitrary or unlawful interference” under BOR14, and repeated imposition of need or requirement on same sex couple to reveal private information in order to substantiate a claim that they are in such relationship is an arbitrary interference which the Government has a duty to protect against. Lam PJ stated that a wide margin of discretion should be left to the Government and the Legislature as to the form of official recognition and the substantive rights thereunder.
Crux of the unanimous opinion on Questions 1 and 3:
All the 5 Judges unanimously dismissed the appellant’s claims under Questions 1 and 3 stating that the constitutional freedom of marriage guaranteed and protected under BL37 and BOR19(2) is confined to opposite-sex marriage. When considering whether the equality rights under BL25 and BOR22 afford a constitutional right to same-sex marriage, the Court held that established principle of lex specialis must be taken into account and BL37, when read together with BOR19(2), is the lex specialis in relation to the right to marry, which confines that constitutional right to opposite-sex marriage to the exclusion of same-sex marriage, and it is not permissible to interpret the equality rights under BL25 and BOR22 as conferring a constitutional right to same-sex marriage or to recognition of foreign same-sex marriage.
On Question 3, the Judges agreed that because under Hong Kong law the appellant lacked capacity to enter into a same-sex marriage, an assertion that the equality rights under BL25 and BOR22 compel recognition of the appellant’s foreign same sex marriage amounts to a challenge to the Appellant’s lack of capacity to enter into a same-sex marriage under BL37 and BOR19(2), which must fail on the basis of the lex specialis principle.
[Sham Tsz Kit v. Secretary for Justice, [2023] HKCFA 28, decided on 05-09-2023]
