On Wednesday, by a margin of 71 votes to 14, the Legislative Council voted, on second reading, to reject the Registration of Same-sex Partnerships Bill. Although the government introduced the bill and campaigned widely for it, the necessary consensus was lacking. The bill was drafted following a 3-2 majority judgment of the Hong Kong Court of Final Appeal (CFA) in 2023 (FACV 14/2022), which, while affirming that a marriage was a union between a man and a woman, required the Hong Kong Special Administrative Region government to create a legal framework for couples who have undergone same-sex marriage ceremonies or civil partnerships overseas.
After the court’s declaration, the chief executive, John Lee Ka-chiu, was in no doubt what had to be done. He said, “The government cannot contravene the determination of the CFA and must take appropriate action.” It was not open to the government to violate the court’s ruling, as this would “be against the rule of law”.
Accordingly, ahead of a two-year deadline set by the CFA in September 2023, the government submitted its bill to the Council on July 16 for first reading. However, the omens were not good. At an earlier Council meeting on July 3, many legislators expressed doubts, claiming the bill would upend traditional family values, and arguing that the recognition of same-sex partnerships registered overseas was functionally the same as same-sex marriage in Hong Kong. Once, moreover, the public were consulted, like concerns emerged.
Although the Council received 10, 775 public submissions on the bill, 8,694 (80.7 percent) expressed opposition. The vast majority of the opponents were, it reported, “concerned that the bill would affect the traditional marriage system, family values, ethical relationships, or even procreation”. Moreover, approximately half of those submissions “worry that the bill would be equivalent to recognizing same-sex marriage”.
The government, therefore, was on notice that its bill would face a rocky ride. It was, however, undaunted, looking positively to the future. It said that “upon passage of the bill, the government will immediately commence preparatory work, and make appropriate arrangements in light of suitable and viable options from the public, so as to ensure smooth and effective implementation of the relevant mechanism”.
At the second reading, the government, which had extensively lobbied legislators, mobilized the heavy brigade. Although, for example, executive councilors Regina Ip Lau Suk-yee, Martin Liao Cheung-kong and Gary Chan Hak-kan voiced their full support in the Council, it was to no avail. Feeling they had to be true to their consciences, respectful of their constituents and sensitive to cultural mores, legislators acted in what they deemed to be Hong Kong’s best interests. In the process, they demonstrated that the Council, while paying respect to the court’s ruling, had a mind of its own. It was not simply a rubber stamp, nodding through laws demanded of it by the executive or the Judiciary.
In democracies, parliaments invariably decide which laws proposed by governments should be enacted. Hong Kong is no different, and its legislators have spoken unequivocally. Although the government went the extra mile in seeking to place on the statute book a law that would satisfy the CFA, it was not to be. This is how democracy works, and it is now time for everybody to move on
Under the Basic Law, the functions of the three branches of government are clearly delineated. Whereas the executive drafts and introduces bills, motions and subordinate legislation (Art.62), and the Judiciary adjudicates cases (Art.84), the legislature enacts, amends or repeals laws (Art.73). These functions are discrete, and each branch must be respectful of the other.
Indeed, the CFA’s majority (Justices Ribeiro, Fok and Keane) acknowledged that, in reaching its conclusion on the government’s positive obligation to establish an alternative framework for legal recognition of same-sex partnerships, “the court is not seeking to assume an executive or legislative role but is discharging its constitutional duty to declare the nature and scope of applicable constitutional rights”. In other words, its role was declaratory, and it was then the responsibility of the other two branches to take things forward, if they were so minded.
As former CFA judge Henry Litton has explained, any changes to the city’s family-law arrangements are the “responsibility of the executive and legislative authorities, not that of the Judiciary”. Although he also pointed out that the executive “is not slave to the CFA”, the government nonetheless did its utmost to enact a law it felt would honor the court’s declaration, as fair-minded observers have acknowledged.
For example, the LGBTQ advocacy group Hong Kong Marriage Equality, while regretting the bill’s demise, said, “We commend the government for taking initial steps toward fulfilling its constitutional obligation to implement the Court of Final Appeal’s decision on establishing a legal framework for the recognition of same-sex relationships.”
By any yardstick, the government has done everything that could reasonably be expected of it, and nobody can seriously suggest it has not fully honored the CFA’s declaration. Although some may argue that the impasse that has arisen has placed Hong Kong in breach of its duty to protect the privacy (and related) rights contained in the Hong Kong Bill of Rights Ordinance (Art.14), it is necessary to look at the bigger picture, as important constitutional principles are engaged.
In the UK, for example, parliamentary sovereignty means that Parliament is free to enact — or not to enact — any law it chooses. This is a constitutional principle, expressed in legal terms. It has been called a legal principle with legal effect, and Parliament’s legislative decisions are constitutionally supreme. Although the Hong Kong Legislative Council and the British Parliament are dissimilar in many ways, they both have the last word when it comes to legislation.
When, moreover, the British Parliament debated the Internal Market Act in 2020, a question arose of whether the government could propose laws that violated the UK’s obligations in international law (just as it has been suggested that the Council has perpetuated a breach of the Hong Kong Bill of Rights Ordinance by not doing the executive’s bidding). However, Sir Stephen Laws QC, previously the first parliamentary counsel, advised that the propriety of breaching the obligations was ultimately a political question for Parliament. In defending its bill, the government stressed that “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of it. Parliament would not be acting unconstitutionally in enacting such legislation.” Equally, the Council was not acting unconstitutionally when it rejected the bill, but was acting in what it saw as the wider public interest, its lodestar.
Although the bill’s rejection is a bitter blow for some, it is certainly not the end of the world. The bill, which was seen by legislators as conferring, by a sidewind, legitimacy on unions that are not recognized in Hong Kong, simply went too far. However, the government was prepared to go as far as it did out of deference for the CFA’s declaration. But all is not lost for same-sex couples, who already enjoy some very significant rights, and a proper perspective is vital.
On Tuesday, for example, the Court of First Instance ruled that it was unlawful for the authorities to bar a lesbian couple from registering together as parents of their son conceived through fertility treatment, as it violated the boy’s privacy and family rights.
As a result, moreover, of three landmark CFA judgments in November on same-sex couples’ equal housing and inheritance rights, the housing authorities have now opened up applications for public rental and subsidized homes to same-sex couples. Two ordinances that prevented same-sex couples from bequeathing properties to their surviving partners and which introduced an extra hurdle for them to apply for financial support from the deceased’s estate were also successfully challenged.
In 2019, the CFA even decided that a same-sex marriage entered into outside Hong Kong was to be regarded as a valid marriage for the purposes of the Inland Revenue Ordinance (Cap.112). After an earlier CFA ruling in 2018, same-sex couples can now also obtain dependent visas in Hong Kong.
In democracies, parliaments invariably decide which laws proposed by governments should be enacted. Hong Kong is no different, and its legislators have spoken unequivocally. Although the government went the extra mile in seeking to place on the statute book a law that would satisfy the CFA, it was not to be. This is how democracy works, and it is now time for everybody to move on.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily represent those of China Daily.
