On September 5 2023, the Court of Final Appeal (“CFA“) held by a majority of 3:2 that the Hong Kong Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights Ordinance (“BORO“) to establish an alternative framework for the legal recognition of same-sex partnerships. This is the first time a court in a common law jurisdiction has decided that Article 17 of the International Covenant on Civil and Political Rights (“ICCPR“) (from which Article 14 of the BORO is derived) imposes a positive obligation on a State to ensure that the rights protected by it are effective.

The appellant Sham Tsz Kit, was married to his same-sex partner in New York in 2013. In the absence of any Hong Kong law providing for such marriage to be recognised, he brought proceedings which culminated in him seeking a determination by the CFA of the following 3 questions:

1. Whether he has a constitutional right to same-sex marriage under Article 25 of the Basic Law (“BL“) and Article 22 of the BORO;
2. Alternatively, whether the absence of any alternative means of legal recognition of same-sex relationships constitutes a violation of Article 14 of the BORO and/or Article 25 of the BL and Article 22 of the BORO; and
3. Whether the non-recognition of foreign same-sex marriage constitutes a violation of Article 25 of the BL and Article 22 of the BORO.

Questions 1 and 3 – Lex Specialis

The CFA unanimously dismissed questions 1 and 3 by operation of the common law principle lex specialis (that a general provision that might apply to any case must give way to a specific provision which applies to the case at hand). Regarding question 1, Article 19(2) of the BORO is the lex specialis in relation to the right to marry and takes precedence over the equality rights under Article 25 of the BL and Article 22 of the BORO. Since Article 19(2) of the BORO is confined to heterosexual marriage, it is not permissible to interpret the equality rights under Article 25 of the BL and Article 22 of the BORO as conferring a constitutional right to same-sex marriage. Similarly regarding question 3, given that the appellant lacked capacity to enter into a same-sex marriage as concluded under question 1, compelling recognition of the appellant’s foreign same-sex marriage would amount to an “incongruent” situation (see paragraph [76]). Thus, questions 1 and 3 fall together on the basis of lex specialis.

Question 2 – Positive or Negative Obligations?

Albeit agreeing that Article 14 of the BORO involves different considerations, Chief Justice Cheung (“CJ“) and Justice Lam PJ differed from Justices Ribeiro PJ, Fok PJ and Keane NPJ in saying that Article 14 of the BORO does not impose a positive obligation on the Hong Kong government to ensure legal recognition of same-sex relationships.

The gist of the CJ’s judgment was that there was a distinction between the prevention of interferences under Article 14 of the BORO and a positive duty to enact laws to ensure “effective respect” for those rights absent interferences (as required under Article 8 of the European Convention on Human Rights (“ECHR“)) (see paragraph [25]). He further emphasised that the CFA must be cautious in applying Strasbourg jurisprudence as Article 14 of the BORO is derived from Article 17 of the ICCPR, rather than Article 8 of the ECHR –  and since Strasbourg jurisprudence was influenced by developments on the European continent, reliance on the interpretation of Article 8 of the ECHR was misplaced (see paragraphs [41] and [54]). Focusing on a textual analysis and relying on the drafting history and commentary on Article 17 of the ICCPR, the CJ concluded that the Hong Kong government only has a duty to prevent and prohibit interferences to the constitutional right enjoyed under Article 14 of the BORO. It followed that the non-recognition of same-sex partnership in Hong Kong does not constitute a violation of Article 14 of the BORO.

On the other hand, Justices Ribeiro PJ and Fok PJ adopted a different interpretation. They began by saying that whilst Article 14 of the BORO speaks of “privacy” and Article 8 of the ECHR refers to “private life“, the “two concepts are to be treated as indistinguishable” – and accordingly, Strasbourg jurisprudence provided persuasive guidance (see paragraph [138]).

Secondly, because the lack of means to acquire the legal recognition available to heterosexual couples is potentially demeaning of same-sex couples and “privacy is a concept inherently linked to a person’s dignity“, they held that Article 14 of the BORO is engaged (see paragraphs [142]-[143]),

“To say this is not to insist upon aligning same-sex unions with marriage.  Rather, it is to make the point that absence of legal recognition of same-sex unions as committed, loving, stable and long-term relationships between individuals who are mutually dependent on each other can be an occasion of arbitrary interference in the ordinary conduct of the private lives of those individuals.” (see paragraph [145])

Thirdly, following the line of authorities applying Article 8 of the ECHR (which was said to impose both positive and negative obligations), they considered that the focus must be on what needs to be done to make the rights contained in Article 14 of the BORO effective, rather than any narrow textual analysis (see paragraph [160]).

Fourthly, having decided that effective protection of the relevant rights require recognition of a positive obligation, they held that the CFA was required to go on to consider whether the proposed obligation strikes a fair balance between the competing interests of the individual and the community as whole (see paragraph [162]).

Finally, as regards Article 17 of the ICCPR, they were of the view that, inter alia, the word “guarantee” in the same commentary to which the CJ referred may entail a positive obligation on the State to adopt legislative measures to give effect to the substantive rights involved.

Implications

It was repeatedly stated in the judgment that the CFA was not addressing the question of whether in terms of social policy for Hong Kong same-sex unions should be recognised and afforded rights and obligations similar to those presently enjoyed by heterosexual couples (see, for example, paragraph [220]). In this regard, the Hong Kong 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. The Hong Kong government has been given 2 years to formulate the relevant framework.

See the full judgment here: legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=154774&currpage=T