For the first time since the complete revamp of the constitution of the Legislative Council (LegCo), a government bill following a controversial decision of the Court of Final Appeal (CFA) on same sex couples’ rights was vetoed by the LegCo sparking intense debate throughout the Hong Kong Special Administrative Region on many fronts: Was the LegCo acting as it did within its rights? Was the veto an affront to the rule of law? What was the SAR government to do with the CFA and the LegCo taking different stands? Are we looking on a so-called “constitutional crisis”?
While all these concerns are understandable, the true answer to these questions is: Constitutionally, legally, and politically, the LegCo's decision represents a normal process within our constitutional framework, reflecting the proper functions of the judicial, executive, and legislative branches under the “one country two systems”.
To understand the issues at hand, we must first correctly interpret the relevant ruling of the CFA. In the case of Sham Tsz Kit, the plaintiff, a homosexual, and his partner entered a legally recognized same-sex marriage in New York. The plaintiff contended that the Hong Kong SAR government’s refusal to recognize their marriage resulted in their experiencing unequal treatment in society, prompting him to seek judicial review. The CFA unanimously ruled that legally recognized same-sex marriages from abroad do not constitute legal marriages in Hong Kong. However, in response to the plaintiff's alternative request for a “legal framework” to enable same sex partnerships to be officially recognized, the court ruled in favor of the plaintiff by a majority vote of three (Justice Robert Ribeiro PJ, Justice Joseph Paul Fok PJ, and Justice Patrick Keane, NPJ from Australia) to two (Chief Justice Andrew Cheung Kui-nung and Justice Johnson Lam Man-hon PJ). In simple terms, the split came down to the majority judges leaning in favor of legal arguments and precedents of European human rights, while the minority judges argued that such law was not particularly applicable to Hong Kong.
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Basic Law’s objective fulfilled by best effort
The majority judges believed that under Article 14 of the Hong Kong Bill of Rights Ordinance (BOR14), which corresponds to Article 17 of the International Covenant on Civil and Political Rights (ICCPR17), the government has a responsibility to provide a "legal framework" that recognizes the status of same sex partnerships and protects their private lives from arbitrary or unlawful interference. In other words, the ruling by the majority judges was for a legal, rather than an administrative, framework that recognizes the status of same sex partnerships.
During a debate in the proceedings as to whether the CFA should grant time to the government to establish the legal framework, the plaintiff cited various polls indicating that most Hong Kong residents accept same-sex relationships. The plaintiff also pointed out that, following electoral reforms, the LegCo has historically passed laws based on government recommendations consistently without demure, suggesting that establishing an alternative legal framework should not be difficult. As a result, the CFA declared that the government has a positive duty under BOR14 to safeguard the private lives of same-sex couples from unreasonable and unlawful interference and gave the government a two-year timeframe to fulfill this responsibility.
Notably, in the majority joint judgment of Justice Ribeiro PJ and Justice Fok PJ, there is a crucial statement: “We ought to emphasize that in arriving at the conclusion that the government is subject to a positive obligation as explained above, the Court is not seeking to assume an executive or legislative role but is discharging its constitutional duty to interpret and declare the nature and scope of applicable constitutional rights under BOR14.” This explanation lies at the heart of the matter. The CFA’s function is to interpret and declare the plaintiff's legitimate rights and the responsibilities of the SAR government. How the government fulfills this duty to protect the private lives of individuals in same-sex relationships is the responsibility of the executive, not the judiciary, and the two roles are separate and distinct. The CFA does not compel the government to propose legislative changes, nor does it require the LegCo to blindly approve such proposals.
Another central question is whether the LegCo's rejection of the government-proposed bill constitutes a violation of the Basic Law. If the government, as claimed, does not intend to seek a postponement of the CFA's ruling, would this also be an "unconstitutional" act? To answer these questions, it is crucial to understand that while ICCPR17 and consequently the BOR14 are provisions guaranteed by article 39 of the Basic Law, it has long been accepted by numerous CFA decisions that the Basic Law is a constitutional document, and hence has the same quality as a constitution, namely, aspirational in nature. While the SAR government has a constitutional duty to continually strive to achieve constitutional goals and fulfill its responsibilities under the Basic Law, one should not view any temporary failure to reach these ideals as a "constitutional violation (violation of the Basic Law)”.
The distinction between “constitutional violations” and temporary failure to achieve constitutional goals can best be illustrated by the following examples: In 2003, the Hong Kong SAR government proposed legislation under Article 23 of the Basic Law, but it was abandoned because of opposition from a majority of LegCo members, reflecting a lack of necessary conditions to fulfill its legislative responsibilities. The government’s attempt to propose legislation, only to abandon it because of opposition, cannot be deemed a violation of the Basic Law. Similarly, in 2015, the “pro-democracy” camp vetoed the universal suffrage political reform proposed by the SAR government. Can one say this rejection of the electoral reform proposal aimed at achieving the goals outlined in Article 45 of the Basic Law, constituted a violation of the Basic Law? The answer is clearly no.
LegCo's authority under the Basic Law
Article 73 of the Basic Law clearly delineates the powers of the LegCo, including "to enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures". In other words, whether to legislate and how to legislate are unique constitutional powers of the LegCo, which cannot be interfered with by anyone, including the Judiciary or the executive branch of the SAR government. The Basic Law does not grant the Judiciary the authority to override the executive or legislative branches nor did the majority judges in the Sham case attempt to do so. Clearly, under the Basic Law, the judicial, executive, and legislative branches must offer mutual respect and provide check and balance with and against each other.
Last but not least, under the common law system, laws declared by courts can be and often are overturned, amended, or modified by the legislature. In terms of lawmaking, the legislature is supreme. While the court's function is to interpret or supplement laws passed by the legislature, historically, in common law countries, instances of legislature passing laws to amend or rectify judicial pronouncements of common law are common place.
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From these various perspectives, one can see that the LegCo's rejection of the same sex partnership bill cannot be viewed as a lack of respect for the CFA's ruling, let alone an affront to the rule of law. Be that as it may, the responsibilities declared by the CFA under BOR14 still need to be respected and acknowledged. The SAR government must fulfill its constitutional duty to offer a legal framework to protect the private lives of individuals in same-sex relationships from discrimination or interference, provided suitable conditions exist in society. When the time is ripe, the government has the responsibility to provide a legal framework that acknowledges the basic rights of same-sex partners under the Basic Law. As to when society will be ready to pass such a legal framework, this depends on whether public perceptions of same-sex relationships will change in the future. Much like the goal of universal suffrage, we eagerly anticipate the arrival of that day.
The author is a former chairman of the Hong Kong Bar Association, a member of the Executive Council, and convener of the Path of Democracy.
The views do not necessarily reflect those of China Daily.
