Hong Kong authorities will likely face no consequences for failing to enact a framework for recognising married same-sex partners, a government adviser has said, as the top court’s deadline for the mechanism has passed.
In a 2023 landmark verdict, the Court of Final Appeal gave the government two years to establish a framework giving legal recognition to same-sex partners with overseas marriage registrations. The deadline was on Monday.
Ronny Tong, a barrister and government adviser, said the authorities had tried their best to push for the framework, but it failed to pass in the Legislative Council in September.
He said after the Registration of Same-sex Partnerships Bill was voted down, neither party – the government nor LGBTQ activist Jimmy Sham, who initiated the judicial review that resulted in the verdict – made use of the “liberty to apply” provision, which allows a party to ask a court for further instructions.
“Under this situation, the court would not on its own accord request the government to do anything,” Tong told HKFP in Cantonese on Tuesday.
On September 10, just 14 out of 86 lawmakers voted in favour of the government framework recognising same-sex couples with overseas marriage registrations. The framework, which LGBTQ activists called “limited,” afforded some rights to same-sex couples, such as in making medical decisions and after-death arrangements.
The bill was the first and only one that did not pass in the city’s “patriots only” Legislative Council, whose term commenced following an electoral overhaul in 2021 that effectively barred the opposition from running.
Nearly a week after the bill was voted down, Chief Executive John Lee said the government would look into administrative means to safeguard the rights of same-sex couples instead. There have been no updates since.
In response to HKFP on Monday, the Constitutional and Mainland Affairs Bureau reiterated Lee’s statement.
“The Government is now exploring administrative measures to provide appropriate protections for same-sex partners in the relevant areas,” the bureau said.
Bill of Rights violation
In the 2023 ruling, the Court of Final Appeal declared that the government was “in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights,” which incorporates the UN’s International Covenant on Civil and Political Rights treaty into the city’s legislation.
Article 14 of the Bill of Rights protects against “arbitrary or unlawful interference with privacy and family.”
According to Chinese University law professor Stuart Hargreaves, since the two-year suspension of the declaration is over, the government is now in violation of the article.
“The government hasn’t given effect to the requirements that the court has made out, so yes, technically, they are in breach of the relevant rights identified by the court,” Hargreaves told HKFP on Tuesday.
Tong also said the government was “theoretically” violating the Bill of Rights, but added that Hong Kong’s constitutional system was “aspirational.”
It could be said that the authorities had been acting in breach of the Basic Law’s Article 23, which requires Hong Kong to enact a domestic security law, up until it was passed in the Legislative Council in March last year, the government adviser added.
‘Stopgaps, not solutions’
Activists have expressed concern that administrative measures will not provide enough legal protection to same-sex couples.
Jerome Yau, co-founder of NGO Hong Kong Marriage Equality, said such measures “are stopgaps, not solutions.”
“Administrative measures can only provide limited protections. In the end, legislation is required to provide legal recognition,” Yau said. “It’s important to bear in mind that legal recognition is required by the court.”
He said he hoped the government could “go back to the drawing board” and attempt to pass a framework in the new Legislative Council term and to hold discussions with LGBTQ groups to understand their needs.
Hargreaves, however, said that depending on what the administrative measures were, they could be sufficient for awarding legal recognition.
The Court of Final Appeal’s judgment states that there could be “different options” for granting official recognition to same-sex partners, “including administrative ones.”
Lawmaker and solicitor Doreen Kong, the sole legislator who cast an abstention vote with regard to the same-sex partners bill, said it was not necessarily true that administrative measures would be “worse” than a framework.
Kong, who will not seek re-election, told HKFP on Tuesday that she hoped the government would seek advice from lawmakers in panel meetings when the new term begins in January.
“Not to seek endorsement, but to address the issue and discuss with lawmakers,” Kong said in Cantonese.
