—P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong
Hong Kong, a Special Administrative Region of China with its separate legal and judicial systems based on the common law, has a litigious LGBTI community. Since 2006, members of this community have successfully challenged through the courts the criminalisation of homosexual buggery and other act of sexual intimacy in private; the disparity in the age of consent for homosexual buggery and other act of sexual intimacy; and the disparity in the maximum criminal penalties between unlawful homosexual intercourse by a man and unlawful heterosexual intercourse by a man, with the courts holding consistently that the impugned provisions of Hong Kong’s statute on sex offences were discriminatory on the ground of sexual orientation.
The subsequent growth in the jurisdictions that recognize same-sex relationships or legislate for same-sex marriages has meant that same-sex couples coming to Hong Kong to live and work would present challenges to the laws and policies of Hong Kong.
In 2016 and 2017, two judicial review applications were launched by a party to a same sex marriage or civil union entered outside Hong Kong according to the laws of the jurisdiction of celebration to contend as discriminatory immigration policy, civil service benefits policy and tax legislation that understood or defined “spouse” as a party to a heterosexual monogamous marriage defined under Hong Kong’s marriage legislation. Both cases went on appeal to the Court of Final Appeal, which, after applying the now widely accepted four-step proportionality analysis, found discrimination in 2018 and 2019 in both cases in terms that rejected the Government’s proffered justifications of “bright line” immigration control related to attracting talents from other parts of the world; and protecting and/or not undermining the concept and/or institution of marriage as understood in and under the laws of Hong Kong, as not rationally connected to the difference in treatment given to the party to the same sex marriage or union. It is remarkable that the Court of Final Appeal noted in the latter case that while the local legal landscape and societal circumstances were relevant to the issue of proportionality and/or justification, the prevailing socio-moral values of society on marriage was not.
Against this background, a Hong Kong lesbian known in court papers as MK, who lives with her partner in Hong Kong, commenced in 2018 legal proceedings to challenge the constitutionality of the Hong Kong marriage legislation that defines “marriage” in terms of a voluntary union for life of a man and a woman to the exclusion of all others and also of the lack of any legal framework for recognition of same sex relationships. The Court of First Instance heard the case in May 2019 and handed down judgment on 18 October 2019 dismissing the challenge. Both Amnesty International and the New York Times have described the outcome as a setback for the Hong Kong LGBTI community.
That the Court of First Instance was able to avoid undertaking the proportionality analysis on the Government’s justificatory case here, which would have required it to follow the Court of Final Appeal’s judgments above, was due to its acceptance of an argument advanced by the Government that in the case of the constitutional protection of marriage, since there is a provision in the Basic Law (Article 37) and a provision of the Hong Kong Bill of Rights (Article 22) that specifically protects heterosexual monogamous marriage, these provisions constitute a lex specialis that precludes other provisions of the Basic Law and the Hong Kong Bill of Rights from protecting the right of marriage of same sex couples.
MK’s case is to some extent unsurprising; the Hong Kong courts have lately retreated within the constitutional architecture of the Basic Law for the plausible reason of “coherence” in the system, a euphemism of “minimalism”, to deny constitutional protection to inconvenient minorities, such as persons in Hong Kong subject to immigration control and their family members living in Hong Kong. On the other hand, this ingenious move sideways by the court has allowed it to eschew the fundamental constitutional principle of equality when it is asked to give effective protection. For the benefit of next stages of this case in the appellate process, I state that the adoption of this lex specialis approach here is plainly wrong for at least three reasons:
First, it wrongly elevated the endorsement by the Privy Council in Endell-Thomas v Attorney General of Trinidad and Tobago  AC 113 of the generalia specialisbus non derogate maxim from the particular situation of that case over powers of appointment of public officers to the whole plane of constitutional interpretation without recognition and realisation of the presence of overarching principles of liberty, equality, justice and property that underlies, pervades and informs the system of protection of fundamental rights under the Basic Law.
Second, it involves an erroneous and ignorant reading of European human rights jurisprudence and the English application of the same, since the architecture of the European Convention on Human Rights is that a claim of discrimination must be expressed as a failure to secure enjoyment of one of the rights and freedoms set forth in the Convention. In the Basic Law, non-discrimination needs not be taken in conjunction with Article 25 of that law protecting a fundamental right. This article is both a provision that, on its terms, guarantees that ‘[all] Hong Kong residents shall be equal before the law’ and requires the laws of the HKSAR to achieve equality, and also operates as a principle that underlies, pervades and informs the whole law itself.
Third, it turns on its head Article 5(2) of the International Covenant on Civil and Political Rights, which is applicable to Hong Kong and incorporated into Hong Kong domestic law as section 2(5) the Hong Kong Bill of Rights Ordinance. Section 2(5) requires that:
There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognizes them to a lesser extent.
Suggested Citation: P. Y. Lo, Hong Kong’s Same-Sex Marriage Case: The Dark Art of Constitutional Non-Engagement, Int’l J. Const. L. Blog, Nov. 7, 2019, at: