Hong Kong is performing a tricky balancing act on same-sex marriage. While some legal practitioners push towards western liberal attitudes, other community representatives feel Hong Kong, as part of Asia, will naturally be more traditionally family-focused. But there are also legal issues at stake, with the judicial and executive branches of the government each needing to play their own roles. Top legal mind Henry Litton takes a closer look at the issues.
ON 26 JUNE THIS YEAR, the government of Hong Kong put before the Legislative Council a proposal to legislate for formal recognition of same-sex marriage in a limited form. This was said by some in the media as being in response to an ORDER made by the Court of Final Appeal (CFA) in its judgment of 5 September 2023 – Sham Tsz Kit v Secretary for Justice, FACV 14/2002.
Not surprisingly, this aroused much controversy. Some legislators called it an attack on the institution of marriage. The President of the Hong Kong Federation of Trade Unions said it “completely turns our values and foundations upside down”.
The judiciary is not a lawless institution. It is bound by its own constitutional constraints. When it delivers a judgment, it is always in the context of the suit in which the proceedings are brought.
NOT RECOGNIZED IN HONG KONG
In this case, the proceedings were started by Mr Sham, an avowed homosexual, who had entered into a same-sex marriage with another male in New York, in November 2013. This was recognized in the State of New York, but not in Hong Kong.
A few years later he lodged a writ against the Secretary for Justice. The reliefs sought were multi-pronged, resulting in voluminous judgments in the High Court (First Instance and Court of Appeal), all rejecting his suit. The matter finally ended up in the CFA which, by a majority of 3-2 overturned the Court of Appeal’s judgment (the Chief Justice and Lam PJ dissenting) and made the following Declaration:
“It is Declared that the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation.
“Operation of the abovementioned Declaration is suspended for a period of two years from the date of the final Order to be made to afford the Government time to comply with its aforesaid obligation.”
FULL OF HOLES
As can be seen, the Declaration is full of holes. What are “appropriate rights and obligations”? Who decides them? And what constitutes “effective compliance” with the obligation?
“Operation” of the Declaration was suspended for two years: What does that mean? How does one “operate” a Declaration?
Note this well: the CFA made no ORDER as such. What it did was to exercise the jurisdiction conferred by Order 15 rule 16 of the High Court Rules to make “binding declarations of right”, whether some other relief was sought or not.
The RIGHT as such belonged to Mr Sham, no one else. But it was an inchoate (incomplete) right, in the sense that there was no mechanism by which he could force the government to establish framework for recognition of same-sex marriage.
So what does the CFA’s Declaration amount to? At best it was the expression (by a bare majority) of an opinion as regards the legal effect of Article 14 of the Bill of Rights. Nothing more.
SEPARATION OF POWERS IS RED LINE
The executive arm of government is not slave to the CFA. At the end of the day, any change to the structure of family law in Hong Kong is the responsibility of the executive and legislative authorities, not that of the judiciary.
This is a red line in the separation of powers. It is based not only on constitutional grounds but also on practicalities. There is no way a judge could properly assess the collective values, traditions or religious sentiments of the community in order to make radical change to family law. Ribeiro and Fok PJJ in their joint judgment said as much (para 213): “The Court is not seeking to assume an executive or legislative role but is discharging its constitutional duty to interpret and declare the nature and scope of the applicable constitutional rights under BOR14.” Empty words with no practical consequence.
As things stand today, given the vehemence of the opposition to the government’s proposal, the executive authorities cannot be faulted for withdrawing it from the Legislative Council.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.