Administrative Law — Court of Final Appeal declares lack of alternative framework for legal recognition of same-sex partnerships unconstitutional
On 5 September 2023, the Hong Kong Court of Final Appeal (“CFA”) handed down a landmark judgment allowing the appeal by LGBT activist Jimmy Sham Tsz-kit ([2023] HKCFA 28). By a majority of 3:2, the CFA held, inter alia, that the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights (“BOR”) 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 (“the Declaration”).
The Appellant raised three questions of great constitutional importance, namely:
(1) Whether the exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality enshrined in Article 22 of the BOR and Article 25 of the Basic Law of the HKSAR (“BL”)? (“Question 1”)
(2) Whether the laws of Hong Kong (including the Marriage Ordinance, Cap 181), 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 the right to privacy enshrined in Article 14 of the BOR and/or the right to equality enshrined in Article 22 of the BOR and Article 25 of the BL? (“Question 2”)
(3) Whether the laws of Hong Kong, in so far as they do not recognise foreign same-sex marriage, constitute a violation of the right to equality enshrined in Article 22 of the BOR and Article 25 of the BL? (“Question 3”)
Ribeiro PJ, Fok PJ and Keane NPJ held in favour of the Appellant on Question 2, while Chief Justice Cheung and Lam PJ dissented. However, the CFA unanimously ruled against the Appellant on Questions 1 and 3.
While making the Declaration reflecting its holding on Question 2, the CFA is minded to direct that operation of the Declaration be suspended for a period of two years to afford the Government time to comply with its aforesaid obligation. The CFA gave parties liberty to lodge written submissions on the relief granted, whereupon the Declaration and accompanying Direction may be modified or confirmed.
This CFA judgment represents a significant advancement in the legal protection of homosexual rights in Hong Kong. It also greatly enriches the human rights jurisprudence in Hong Kong. In particular, it is the first judicial decision in the common law world deciding on whether Article 17 of the International Covenant on Civil and Political Rights (from which Article 14 of the BOR is derived) imposes a positive obligation to protect and give effect to the privacy rights which it affirms.
The CFA judgment can be found here.
The Appellant was represented by Hectar Pun, SC and Anson Wong Yu Yat (led by Karon Monaghan KC). Hectar and Anson also represented the Appellant in the Courts below.
| Hectar Pun, SC
“Hectar is very senior and offers very professional delivery and impeccable performance as a court advocate. He’s a judicial review human rights specialist, and obviously a judicial review specialist in general.” — Chambers and Partners Greater China Region 2023, Administrative and Public Law: Spotlight Table: Silks Hectar’s practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings. He is ranked in Chambers and Partners as well as The Legal 500 Asia-Pacific 2023 as a “Leading Silk” in Administrative and Constitutional Law. Hectar has acted for the Catholic Diocese of Hong Kong, legislative councillors, district councillors, demonstrators, police officers, prisoners, refugees and asylum seekers, tenants of public housing estates, homosexuals, transsexuals, the disabled and the underprivileged, etc. Visit Hectar’s profile for more details.
Anson Wong Yu Yat
“Anson is intelligent, detail-oriented and practical. He is highly capable of analysing and deconstructing complicated legal issues.” Anson has appeared in more than 130 court judgments (including 15 cases in the Court of Final Appeal with 11 substantive appeals) over the mere span of 7 years of full practice, reflecting the exceptional wealth of experience and exposure in civil litigation for his seniority. Anson is experienced in handling complex questions of law, including those of great general or public importance which reached the Court of Final Appeal. For example, he has recently appeared in (among others) three civil appeals before the Court of Final Appeal dealing with important questions concerning insolvency matters, land law and equity, service out of jurisdiction and statutory interpretation. Visit Anson’s profile for more details. |
This article was first published on 5 September 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.