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Why is Hong Kong’s recent same-sex marriage case a western debate?

A recent court case over same-sex marriage in Hong Kong was troubling; Not because it argued in favor or against such a development, but because it was based on a law that said nothing whatsoever on the subject.

Furthermore, the debate spun itself off into areas that were clearly part of a very western discussion over the topic, and decidedly NOT one that makes sense in an Asian context.

There’s a serious problem embedded into the Hong Kong legal sector which is set to eventually lead to a clash between the Court of Final Appeal and the Legislative Council, argues top legal mind Henry Litton.


COURTS OF LAW DEAL with rights and liabilities, not social policies. Those are matters for politicians and legislators.

In this regard the case of Sham Tsz Kit v Secretary for Justice [FACV 14/2022, 5/9/2023] decided by the Court of Final Appeal (CFA) in September this year, 2023, is most troubling.

In all three levels of courts (Court of First Instance, Court of Appeal and the CFA) there was much discussion focussed on various provisions of the Basic Law and the Hong Kong Bill of Rights, with copious reference to European human rights jurisprudence and citation of overseas cases.

Ultimately, the provision of law which decided the case in the applicant’s favour was Article 14 of the Hong Kong Bill of Rights (BOR14). The majority of the CFA Ribeiro PJ, Fok PJ and Keane NPJ) concluded that BOR14, properly construed, placed an obligation on the Hong Kong government – meaning the executive – to establish a legal framework for recognition of same-sex marriage or its equivalent, with the same rights and obligations as in heterosexual marriages. The Chief Justice and Lam PJ dissented.

NOT RECOGNIZED IN HONG KONG

The applicant, a male, Hong Kong permanent resident, had entered into a same-sex marriage in New York. This was recognised by the laws of that State. Such marriage is not recognised in Hong Kong.

He took out proceedings in the High Court seeking a declaration that “the laws of Hong Kong ….in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships ) constitute a violation of Bill of Rights Article 14 …….”

In other words, what is alleged by him is that BOR14, properly understood, imposes an obligation on the government to pass a certain type of law in his favour: rather like Article 23 which says “the Hong Kong SAR shall enact laws on its own to prohibit any act of treason, secession ….etc”.   

WHAT IT ACTUALLY SAYS

So, what is the wording of BOR14 which gives the applicant such privilege, and carries with it such high consequences? Having regard to the case advanced by the applicant, it comes as a shock to see what it actually says:

“Article 14 Protection of privacy, family, home, correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks”.   

How does one extract from those few words the obligation falling on the government as claimed by the applicant?

The Hong Kong Bill of Rights, Cap 383, is a local statute, and falls for interpretation like any other statute, even though its wording comes originally from the International Covenant on Civil and Political Rights (ICCPR).

The guiding principle of interpretation is provided by s.19 of the Interpretation and General Clauses Ordinance, Cap 1:

“19 General principles of interpretation 

 An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”.  

The intent and meaning are derived from the words in the first place. It is only when there are ambiguities that resort to external material is permitted.

As regards BOR14, the wording is clear. The prohibition is against arbitrary or unlawful interference with an individual’s privacy, family, home etc.

The right of the individual under the Article is a right to be protected against arbitrary or unlawful interference or attack on his privacy, family, home etc. Full stop.

ENTER EUROPEAN INFLUENCE

How on earth can the obligation to protect, so narrowly focused, be turned into an obligation to enact laws regarding same-sex couples?

The majority in the CFA relied heavily on Article 8 of the European Convention on Human Rights in giving meaning to BOR14. But Article 8 (ECHR8) is differently worded. Under that Article, as the CJ said (para 24) “the emphasis is on the right to respect for private life, and the ‘right to respect’ has been made the basis on which to found not only a negative obligation not to interfere with private life ……but also a positive obligation, even in the absence of any interference, to facilitate and ensure the full enjoyment of one’s private life ….”.  

USE OF THE CONCEPT OF ‘RESPECT’

Where, one might ask, does the wording of BOR14 impose an obligation on the government to show “respect”? And what precisely does that mean?

The combined judgment of Ribeiro PJ and Fok PJ, with which Keane NPJ agreed, devoted 13 pages to this issue, in the course of which it cited multiple judgments of the European Court of Human Rights at Strasbourg, and Comments of the UN Human Rights Committee on the scope of Article 17 of the ICCPR (from which BOR14 is derived). To what ends? The only answer has to be, to expand the meaning of the clear words in BOR14, beyond their natural scope, to justify relief being given to the Applicant.

As Lam PJ said: “There is a material difference between the duty to protect against unlawful and arbitrary interference under BOR14 and the duty to respect private and family life under ECHR8” (para 222).

And he went on to say: “Moreover, the Strasbourg jurisprudence on ECHR8 was developed progressively over the years in tandem with the social and political development in the member States of the ECHR. There were legislative changes in a significant number of member States and resolutions passed by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe which underpinned the evolution of the Strasbourg jurisprudence from Sheffield and Horsham v United Kingdomto Schalk and Kopf v Austria and then from Oliari v Italy to Fedotova v Russia. The Strasbourg Court invariably referred to these developments in its judgments. In the absence of similar developments in Hong Kong and in view of the material difference between ECHR8 and BOR14, this Court should not adopt the Strasbourg jurisprudence as guidance on the substance of the rights conferred under BOR14 in terms of recognition of same-sex union” (para 226).

VERY DIFFERENT HISTORY

Moreover, the Strasbourg Court deals with the culture and social conditions of a large variety of countries, with very different languages and history.

As the Chief Justice said: “…perhaps because of the enormous volume of its decisions and the differing compositions of its chambers, as well as because it is evolutionary, the jurisprudence of the Strasbourg court may sometimes not be entirely consistent internally… It is not the duty of the courts of independent non-party states to follow every turn in its case law as it occurs”.

How, one might ask, could such a tangle of elusive developments coming from the Strasbourg Court be a guide to the meaning of BOR14 in Hong Kong?

The present case turns on one clear point: the proper interpretation of BOR14.

In this regard it is of significance, as the Chief Justice said, that BOR14 is derived from an international treaty which has been acceded to by over 170 countries (para 31).

WHY NOT ASIAN?

If BOR14 is not to be understood simply by the meaning of the words used, and resort is to be made to the jurisprudence of other signatories of the ICCPR for its true interpretation, why the emphasis on European jurisprudence?

Why not countries with greater cultural affinity with Hong Kong? Say, Singapore or Japan? And it cannot be a one-way street: has the Strasbourg Court resorted to Hong Kong jurisprudence as guidance to the meaning of the European Convention on human rights?

This Euro-centric leaning does not sit well with Hong Kong’s position as a Region of China.

But there is a much more serious fault with this judgment – or, more accurately, the majority judgment.

As referred to at the beginning of this essay, a court is constituted to deal with the rights and liabilities of the parties. When declaratory relief is given, it is in vindication of the rights of the applicant. Order 15 rule 16 of the Rules of the High Court empowers the court to make “binding declarations of right” whether some other relief is sought or not.

Here, in the CFA, the applicant won his case. He sought no relief other than a declaration. The court (by a majority) made the following declaration in his favour:

 “ …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 the 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”. 

Here is the obligation falling on the government writ large. Where is the corresponding right? It does not reside in the court itself. The court cannot be a party in its own cause. It could only reside in the applicant.

TROUBLING OUTCOME

So what is the outcome?  It is this. A party with a social agenda which finds favour with a court can use BOR14 as a lever to compel the government to establish a “framework” to give legal force to that agenda.

Take the recent Vaccine Pass Regulations which prohibited unvaccinated persons from entering supermarkets or cinemas. This showed scant “respect” to such persons, and most certainly prevented them from “full enjoyment of private life”. It would appear that they had a cast-iron case to compel the government to repeal the Regulations, relying on the CFA’s judgment.

The government was given two years to comply with the declaration.

What must the government do? There is no point in conducting a survey or engaging in public consultation. Even if 90% of the citizens opposed legalising same-sex marriage or its equivalent, the government must still comply with the declaration and put a bill before Legco before the end of the two-years period.

Would Legco allow itself to be dictated to in this way by the CFA? Particularly if popular sentiment was against the proposal? Most probably not.

What has happened is that the CFA has elbowed its way into the realm of the legislature where it does not belong, overreaching its own mandate.

The scene is set for a clash between Legco and the CFA. Very likely, the CFA will emerge humiliated.

Does this not show a fundamental error in the CFA’s approach this case?


The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.

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