The Court of Final Appeal has held that the absence of legal recognition of non-heterosexual unions in Hong Kong is violative of the right to privacy under Article 14 of the Hong Kong Bill of Rights.
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IN a landmark judgment, the Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR) has recognised non-heterosexual unions.
On September 5, in Sham Tsz Kit versus Secretary for Justice, a majority found the government of HKSAR had failed to establish an alternative framework for legal recognition of non-heterosexual partnerships.
This was ruled to be in violation of Article 14 of the Hong Kong Bill of Rights. Article 14 reads: “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.”
Background of the case
The appellant, a permanent resident of Hong Kong, is a homosexual.
In 2011, he entered into a relationship with another permanent resident of Hong Kong. Both partners have been cohabiting since then.
In 2013, they got married in New York since Hong Kong laws did not allow them to marry locally.
However, their marriage was not legally recognised in Hong Kong. As per the Marriage Ordinance of Hong Kong, marriage is a voluntary union between a man and a woman.
What were the issues before the court?
The appellant brought proceedings seeking declarations on three matters.
First, whether the appellant has a constitutional right to enter into a non-heterosexual marriage under Article 25 (right to equality) of the Basic Law (Constitution of Hong Kong) and Article 22 (right to equality) of the Hong Kong Bill of Rights.
If they are not allowed to marry, whether the failure of the State to provide alternative means of legal recognition to non-heterosexual partnerships (such as civil unions or registered partnerships) constitutes a violation of Articles 14 (on privacy) and 22 of the Hong Kong Bill of Rights read with Article 25 of Basic Law.
Lastly, whether the non-recognition of foreign non-heterosexual marriage constitutes a violation of Article 25 of the Basic Law read with Article 22 of the Hong Kong Bill of Rights.
What did the court of first instance decide?
The court of first instance stayed the proceedings as a similar case M.K. v Government of HKSAR was pending before the court.
In 2019, the court of first instance dismissed the application of M.K. The court of first instance held that the denial of the right to marriage to non-heterosexual couples under the laws of Hong Kong did not constitute any violation of their constitutional rights.
It also held that the government was under no positive legal obligation to provide an alternative legal framework of recognition of same-sex relationships.
On September 18, 2020, the court of first instance dismissed the application for judicial review of the applicant-appellant.
Subsequently, the appellant approached the court of appeal.
What did the court of appeal decide?
Constitutional right to non-heterosexual marriage
The court held against the appellant on the first issue.
The court found that the appellant’s argument on the grounds of equality guaranteed under Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights is unsustainable in light of the lex specialis doctrine.
According to the court, a general provision must be read subject to the special constitutional guarantee to heterosexual marriage which is provided under Article 37.
The court said that Article 37 of the Basic Law was consistently understood and construed to mean a constitutional guarantee of the right to heterosexual marriage.
Article 37 reads: “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”
The court also considered Article 19(2) of the Hong Kong Bill of Rights.
Article 19(2) guarantees men and women of marriageable age the right to marry. The right is based on Article 23(2) of the International Covenant on Civil and Political Rights.
Legal recognition of non-heterosexual partnership
Since the court rejected the constitutional recognition of non-heterosexual marriage, it said that the constitutional recognition of non-heterosexual partnerships must also fail.
The court reasoned that civil partnership is just another name for marriage.
On the issue of privacy, the appellant heavily relied on Article 8 (right to respect of privacy and family life) of the European Convention on Human Rights.
The court made a distinction between Article 14 of the Hong Kong Bill of Rights and Article 8 of the European Convention on Human Rights.
The court said that while Article 8 emphasises the “right to respect” a person’s private and family life, Article 14 only focuses on “non-interference” in the private life of a person.
Article 8 of the European Convention on Human Rights has been understood to not just carry a negative obligation to not interfere with private life.
It also carries a positive obligation to facilitate and ensure full enjoyment of one’s private life.
However, the court stated that since Article 14 of the Hong Kong Bill of Rights is based on Article 17 of The International Covenant on Civil and Political Rights (ICCPR), it must be interpreted accordingly.
The court first looked at the existing interpretation of Article 17 of the ICCPR, which is not just limited to ensuring against arbitrary or unlawful interference with privacy.
The State parties to ICCPR must also provide the legislative framework prohibiting such interferences.
The court, however, found that in the context of Hong Kong’s obligation under Article 17 of ICCPR, there exists no duty to enact laws to recognise non-heterosexual partnerships.
It drew a distinction between the positive obligation of States under Article 17 of ICCPR and Article 8 of the European Convention on Human Rights.
It said that the positive obligation in Article 17 is limited to making laws to prevent and prohibit interference. It does not put a duty on the State to facilitate and ensure the full enjoyment of privacy.
The court found that under Article 8 of the European Convention on Human Rights, the positive obligation goes much beyond ensuring effective respect for the rights protected by Article 8.
In this context, European case law has evolved to include an obligation to legally recognise and protect non-heterosexual relationships.
The court concluded that for Hong Kong to legally recognise and protect non-heterosexual partnerships is a matter for the government and the legislature to decide.
Recognition of foreign non-heterosexual marriage
On the last issue, the court said that it cannot stand independently of the first issue.
The court clarified that there is no constitutional right to non-heterosexual marriage, this automatically means that there is no constitutional right to the recognition of foreign non-heterosexual marriage either.
What did the Court of Final Appeal decide?
The Court of Final Appeal decided the first and the third issues together.
Reading Article 37 of the Basic Law together with Article 19(2) of the Hong Kong Bill of Rights along with Article 23(2) of ICCPR, the Court of Final Appeal ruled that Hong Kong does not recognise non-heterosexual marriages.
In the context of the lex specialis doctrine relied on by the court of appeal, the Court of Final Appeal said that equality provisions cannot be relied upon to widen the constitutional right to marry to non-heterosexual couples.
The Court of Final Appeal held: “Those provisions [Article 37 of the Basic Law read with Article 19(2) of the Hong Kong Bill of Rights], read coherently together, protect the right to marry in terms of opposite-sex marriage and not same-sex marriage.”
It, therefore, dismissed the appeal on both those issues.
On the issue of violation of privacy for not giving legal recognition to an alternative form of partnership, the Court of Final Appeal did not agree with the court of appeal.
The Court of Final Appeal stated that the need for non-heterosexual couples to have access to an alternative framework for legal recognition of their relationship has been “compellingly advocated” for two reasons.
First, availability of an alternative framework is required to meet basic social needs similar to those experienced by heterosexual couples.
Second, the absence of legal recognition has been seen to be essentially discriminatory and demeaning to non-heterosexual couples.
The Court of Final Appeal relied on Oliari and Others versus Italy (2017) decided by the European Court of Human Rights.
In Oliari, which concerned three Italian couples seeking legal recognition of non-heterosexual union, the European Court of Human Rights held: “The lack of legal recognition of the union, besides causing legal and practical problems, also prevented the applicants from having a ritualised public ceremony through which they could, under the protection of the law, solemnly undertake the relevant duties towards each other.”
The court observed: “The court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection— in the form of core rights relevant to a couple in a stable and committed relationship— without unnecessary hindrance.”
The Court of Final Appeal held that the absence of a legal framework for recognition of the appellant’s non-heterosexual relationship constitutes a hindrance or interference with the right to privacy protected under Article 14 of the Hong Kong Bill of Rights.
It rejected the distinction made by the court of appeal between Article 14 of the Hong Kong Bill of Rights and Article 8 of the European Convention on Human Rights to say that only the latter entails a positive obligation on States. In fact, the court found that the protection offered under Article 14 is much wider.
“Absence of legal recognition of non-heterosexual unions as a 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,” the Court of Final Appeal observed.
Thus, the Court of Final Appeal found the government of HKSAR was in violation of Article 14 of the Hong Kong Bill of Rights for not guaranteeing an alternative legal framework for the recognition of non-heterosexual marriages.
The appellant’s relationship with his same-sex partner is entitled to the protection of the law pursuant to his rights to privacy and family, requiring provision of a scheme for legal recognition in an appropriate form of same-sex union.
The government has been granted two years to make appropriate legal changes vis-à-vis non-heterosexual unions to comply with Article 14.
