The Court of Final Appeal (CFA) decision in Sham Tsz Kit v. Secretary for Justice is not just another victory for same sex-couples in Hong Kong. Potentially, it has the most far reaching impact yet – requiring the Government to come up with a framework for legal recognition of same-sex partnerships [see our previous Legal Updates for some case developments so far]. The "devil will be in the detail" of this legal framework, which the Government has two years to implement.
In the CFA case, the appellant had been in a stable same-sex relationship with a man since 2011, and in 2013 they got married in New York.
Under Hong Kong law, there is no provision for such marriages to be entered into, nor are these marriages contracted abroad recognised in Hong Kong.
The appellant contended that this state of affairs constituted discrimination and a violation of his constitutional rights to equality and protection against interference with his right to privacy and family.
This appeal considered three questions, namely:
- (Question 1) whether the appellant 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);
- (Question 2) (alternatively,) whether 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 Article 14 of the Hong Kong Bill of Rights (BOR14) and/or BL25 and BOR 22; and
- (Question 3) whether the non-recognition of foreign same-sex marriage constitutes a violation of BL25 and BOR22.
So, we need to take a look at BOR14, BOR22, BL25 and (as will be seen) Article 37 of the Basic Law (BL37).
BOR14 (Protection of privacy, family, home, correspondence, honour and reputation) provides:
"(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."
BOR22 (Equality before and equal protection of law) provides:
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
BL25 provides "All Hong Kong residents shall be equal before the law".
BL37 provides "The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.".
The CFA dismissed the appeal on Questions 1 and 3, but allowed the appeal on the Question 2, by a majority of three to two.
On Questions 1 and 3, all members of the CFA agreed that the constitutional freedom of marriage protected under BL37 and BOR19(2) is confined to opposite-sex marriage. When considering the various protected rights under legislation, a general provision in legislation must give way to a more specific provision.
The Court held that the equality rights under BL25 and BOR22 must be read in the context of the more specific provisions under BL37 and BOR19(2) and it was 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 (as that would render BL37 and BOR19(2) redundant).
On Question 2, Judges Roberto Ribeiro and Joseph Fok delivered a joint judgment with which Judge Patrick Keane agreed, holding that the Government was in violation of its positive obligation under BOR14 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 that positive obligation.
The operation of this finding was suspended for a period of two years (from when the final Order is to be made after receipt of the parties' written submissions) to afford the Government time to comply with its obligations.
The majority considered that having access to an alternative framework for legal recognition of same-sex couples in a committed stable relationship is required to meet basic social needs similar to those of different-sex couples in a stable relationship.
They accepted that non-recognition of the committed and stable same-sex relationship is likely to give rise to real difficulties in many situations.
For example, if one partner was hospitalised, the other – having no recognised status – might be denied visiting rights or medical information, or participation in decision-making.
Another cited example was uncertainty regarding disposition of assets amassed together over the years if their relationship were to end. The existence of a framework would provide a known starting point likely to facilitate resolution of disputed claims.
The majority therefore held that absence of a legal framework for recognition of the appellant's same-sex relationship constitutes a hindrance of, or interference with, the appellant's rights under BOR14, whereby they are infringed.
The example relied on by the majority for this aspect were recent cases such as QT v. Director of Immigration and Leung Chun Kwong v. Secretary for Civic Service – where the plaintiffs were in committed, stable relationships, but were constrained, having no practical alternative means of maintaining the ordinary course of their relationship, to expose themselves to the publicity, stress, uncertainty and expense of litigation. They were obliged to make public details of their private lives and to subject themselves to public scrutiny.
Thus, each of these cases can be analysed as a case of arbitrary interference in the private lives of members of same-sex unions as a result of the absence of basic legal recognition of their relationship.
Although the latest CFA judgment confirms that the Basic Law and Hong Kong Bill of Rights do not confer a constitutional right to same-sex marriage, it is a significant step forward -- ruling that the Government has a positive obligation under BOR14 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.
Of course, we will now have to see what framework the Government puts into place as a result of this judgment.
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