A pro-Beijing lawmaker has urged Hong Kong’s government to override the top court’s rulings in favour of same-sex married couples by inviting China to interpret the city’s constitution.
Speaking at a forum on Wednesday, lawmaker Junius Ho said the Court of Final Appeal had handed down “bombshell” rulings last week in affirming same-sex married couples’ housing and inheritance rights.
“The Court of Final Appeal [made these rulings] on so-called same-sex marriages under just one notion, equal rights. What equal rights? Diversity, inclusiveness and equality,” he said in Cantonese.
“Diversity, inclusiveness, equality. Together, they are D-I-E. Die. A dead end,” Ho said.
“[These] universal values cannot override the constitution,” Ho added, citing China’s constitution and the provisions of Hong Kong’s Basic Law on marriage and family.
Hong Kong does not recognise overseas marriages by same-sex couples. In September 2023, the top court handed a partial victory to the LGBTQ community, ruling in a case lodged by pro-democracy activist Jimmy Sham that the government has an obligation to provide an alternative legal framework that recognises same-sex relationships.
The government was given two years to develop a mechanism that recognises same-sex relationships before being judged to be in breach of the law.
Regarding the recent rulings in favour of LGBTQ rights, Ho said that per the Basic Law, the Court of Final Appeal should seek an interpretation from the mainland government in relation to matters with “permanent, serious consequences.”
In doing so, Hong Kong authorities could find the top court’s decisions unconstitutional and would not need to implement the rulings, he said.
Ho added that sexual minorities should be treated “well” as long as it “does not conflict with our laws, the Basic Law and constitutional law.”
Ho made the comments at a forum organised by the International Probono Legal Services Association Limited, a group he founded.
In a press release, the group said the court’s rulings had “bypassed the legislative procedures in recognising same-sex marriage, disregarding the views of the general Hong Kong public.”
‘Traditional Chinese value’
Last week, the Court of Final Appeal delivered a landmark victory to the city’s LGBTQ community in cases relating to housing and inheritance rights. The verdicts were reached unanimously by a panel of five judges.
The court said the exclusion of same-sex married couples from the definition of “ordinary families” and “spouses” under the government’s Public Rental Housing Scheme and Home Ownership Scheme were discriminatory.
So too was the failure to view same-sex couples as being in a “valid marriage” under the city’s inheritance laws, the Court of Final Appeal said.
Lawmaker Peter Shiu, who was also at the forum on Wednesday, called the court rulings “disappointing.”
“I absolutely agree that marriage is defined as between husband and wife. This is a traditional Chinese value,” he said in Cantonese.
“I respect [same-sex married couples]. That is your own choice and I wouldn’t intervene with that,” Shiu said. “But if you take a value we don’t approve of and spread it outside, expand it and inculcate it to others, then I don’t agree.”
Whilst same-sex sexual activity was legalised in 1991, Hong Kong has no laws to protect the LGBTQ community from discrimination in employment, the provision of goods and services, or from hate speech. Same-sex marriage remains illegal in the city, even though a 2023 survey showed that 60 per cent of Hongkongers support it.
After the Court of Final Appeal handed down the rulings last week, the government said it respected the decisions and would “seek legal advice as necessary on follow-up actions.”
‘Not about politics’
Jerome Yau, the co-founder of NGO Hong Kong Marriage Equality, said urging a cancellation of the top court’s decisions was essentially asking the government to disobey the court. Such calls were against the rule of law and potentially an act of contempt of court, he said.
He said he respected the constitution. But Hong Kong was governed under the “One Country, Two Systems” framework, allowing it certain differences from the mainland, and there was “no ground” to seek an interpretation by Beijing of the Basic Law.
He rejected Ho’s suggestion that the Court of Final Appeal’s rulings amounted to legalising same-sex marriage, saying that was a matter for the government and the legislature.
Yau also referred to Ho’s views that the top court’s rulings could pose a threat to national security. Ho said the city needed to stop “foreign forces” and those with “ulterior motives” from using the mantra of “universal values” to fight for marriage equality.
“The whole thing is not about politics and national security,” Yau told HKFP on Thursday. “It’s about how we treat these couples. These couples, just like everybody else, want to form a family. They are productive, law-abiding citizens who want to contribute to society, who want to get on with their lives.”
Since the top court in September 2023 gave the government two years to provide an alternative legal framework that recognises same-sex relationships, authorities have not publicised developments or begun public consultations.
LGBTQ groups have expressed disappointment at the lack of updates and urged the government to announce progress ahead of the deadline.
In recent years, the city’s LGBTQ groups have experienced setbacks in advocacy work under the politicised environment. Government funding has been cut and applications for overseas support have become risky, while there is little room to hold public events, LGBTQ groups have told HKFP.
The last time Hong Kong saw a pride parade was in 2018. In 2019, in the midst of the anti-extradition protests and unrest, organisers held a rally instead after police rejected the application for a march.
From 2020 on, pride parade organisers have instead held virtual events or indoor bazaars and exhibitions in lieu of marches. There have been no large-scale demonstrations since the passing of the 2020 national security law, with police often pressuring organisers not to hold events and imposing strict rules such as requiring registration of participants.
