2023-09-05 13:55:51
Cen Zijie’s final appeal partly allowed
Cen Zijie, a member of “Rainbow Action” and former convener of the Democratic Front, lost the judicial review earlier on that Hong Kong law does not recognize overseas same-sex marriages. He refused to accept the judgment and appealed to the Court of Final Appeal, which was ruled in part on Tuesday (5th). The 5 judges of the Final Court ruled 3 to 2 that Hong Kong law does not provide any alternatives, and the legal recognition of same-sex partnerships is unconstitutional, and the execution of the relevant order was suspended for two years. As for Cen’s other challenge that Hong Kong does not recognize same-sex marriage, and that non-recognition of same-sex marriage in other places is unconstitutional, it was unanimously rejected by the Final Court.
The permanent judges Li Yi, Fok Zhaogang and non-permanent judge Qi Xianyi all believed that there must be an alternative legal framework in Hong Kong to recognize same-sex partnerships, so as to meet their basic social needs and obtain legal identity, so as not to make them feel inferior. The three judges also agreed that the right to private life stated in Article 14 of the Bill of Rights applies to this case. For example, a same-sex couple in the past filed a judicial review to fight for their rights and had to disclose their private life, which became the focus of public attention and constituted private life. intervention.
Chief Judge Zhang Juneng and Permanent Judge Lin Wenhan held different opinions, arguing that the appellant’s pursuit of legal recognition of same-sex partnerships with equal rights is essentially equivalent to fighting for same-sex marriage in another name.
The Association for Marriage Equality issued a statement saying that the verdict is an important victory, clearly pointing out that Hong Kong law must respect and protect same-sex couples, and the verdict will not cause harm to anyone, and it also marks the progress of Hong Kong society for equal love and a more harmonious society A big step. The association calls on the government to actively communicate with stakeholders to formulate a sound system as soon as possible to recognize the legal status of same-sex couples.
The appellant, Sam Tsz-kit, represented by Karon Monaghan QC, raised three disputes, and the Department of Justice was represented by Wong Kai-ming, SC. Chief Judge Zhang Juneng, Permanent Judges Li Yi, Huo Zhaogang, Lin Wenhan, and non-permanent Judge Qi Xianyi, after hearing the submissions of both parties earlier, issued a judgment on Tuesday (5th), ruling that one of the disputed appeals of Cen Zijie was allowed, and the rest Two cases were lost with the following results:
1. Does excluding same-sex couples from the marriage system violate the equal rights under Article 22 of the Hong Kong Bill of Rights and Article 25 of the Basic Law?
Result: rejected
2. Hong Kong law (including the Marriage Ordinance (Cap. 181)) does not allow same-sex couples to marry, nor does it provide any alternative avenues for legal recognition of same-sex partnerships, whether it violates the right to private life under section 14 of the Bill of Rights, and/or equal rights under Article 22 of the Hong Kong Bill of Rights and Article 25 of the Basic Law?
Result: Appeal allowed
3. Hong Kong law does not recognize same-sex marriages in other places. Does it violate the equal rights under Article 22 of the Hong Kong Bill of Rights and Article 25 of the Basic Law?
Result: dismissed
On June 29, 2023, Cen Zijie was escorted by a prison car to the Court of Final Appeal for hearing.
CFA: There must be a framework to recognize same-sex partnerships
Don’t make them feel inferior
Regarding the second dispute, permanent judges Li Yi, Huo Zhaogang and non-permanent judge Qi Xianyi all ruled that Cen Zijie’s appeal was allowed. The judgment pointed out that if there is no legal recognition of the relationship between same-sex couples, it can be expected that many difficulties will arise in their daily life. For example, when one of them is hospitalized, the partner may not be able to visit him, learn about his condition, or make medical decisions; for example, when two people decide to end their relationship, it may be difficult to dispose of the assets they jointly own. The judgment believes that the court has previously ruled on such issues one by one, but if the law can provide a framework for same-sex couples, at least it can provide a basis for dealing with related disputes, and it can also prevent them from feeling inferior or feeling that they are committed to a stable relationship Not worthy of recognition.
Final Court: Existing system impedes same-sex couples’ right to private life
The judgment also pointed out that just as some transgender people did not complete the entire gender reassignment surgery earlier,Appeal for refusal to change identity card gender, the Final Court stipulated that “privacy is a concept inherently linked to a person’s dignity”, so the right to private life stated in Article 14 of the Bill of Rights applies to this case. The Final Court believes that the current system lacks a legal framework to recognize same-sex partnerships, which will hinder or interfere with Cen’s right to private life. It also mentioned that in the past, same-sex couples had to submit their private lives for judicial review in order to fight for their rights, which became the focus of public attention. Abuse, so that they suffer all kinds of pressure, uncertainty and legal costs, which constitute interference in their private life.
CFA: The principle of “special law precedence” does not apply
On the part of the Department of Justice, the right to marriage guaranteed by Article 37 of the Basic Law only covers marriages of different surnames, and according to the principle of “lex specialis” (when there is a conflict between the general provisions and the specific provisions dealing with specific situations, the Adopt a more specific law), the appellant relies on the broader provisions of Article 25 of the Basic Law and Article 22 of the Human Rights Act concerning the right to equality, which do not apply to this case.
The verdict emphasizes that this case is not equivalent to fighting for same-sex marriage, but an alternative legal framework to recognize same-sex partnerships, so the principle of “lex specialis” does not apply to this dispute. As for the Department of Justice, the current policy has a legitimate purpose and can protect and maintain traditional marriages. The judgment pointed out that the legal recognition of same-sex partnerships through alternative means does not involve the rights and obligations accompanying traditional marriage, so there is no legitimate purpose to establish the current policy.
CFA: Government discretion to determine ‘core rights’
As for the DoJ’s earlier controversy, the concept of “core rights” proposed by the appellant was vague. The judgment states that when the government drafts a legal framework, it can flexibly decide what rights and responsibilities are included, so as to clarify “core rights” and “supplementary rights”. The current civil union mechanisms for same-sex couples around the world, including the UK and New Zealand, can be used as a reference. The government may also consider setting restrictions on civil unions, such as age, single-sex partners, etc. As for other rights involved, such as adoption and reproductive rights, etc., the court may need to make judgments one by one, but at least an alternative legal framework can provide a basis for dealing with these issues.
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The judgment concluded that the government had failed in its positive duty to establish an alternative framework for legal recognition of same-sex partnerships, in breach of the appellant’s rights under section 14 of the Bill of Rights.
Zhang Juneng and Lin Wenhan held different opinions
Zhang: It is equivalent to fighting for same-sex marriage under another name
Chief Justice Cheung Ju-neng and Permanent Judge Lam Man-han disagreed. Zhang also issued a judgment stating that the appellant used equal rights and the right to private life to fight for the legal recognition of same-sex partnerships, which is undoubtedly fighting for same-sex marriage in another name.
In response to Article 14 of the “Bill of Rights” protecting private life from intrusion, Zhang Juneng pointed out that the appellant relied on Article 8 of the “European Convention on Human Rights” regarding respect for private life, which is not the same as the right to private life stated in Article 14 of the “Bill of Rights”. . The former means that even in the absence of any intervention, the state has a positive obligation (positive obligation) to enact laws to ensure that relevant rights are respected. Article 14 of the Bill of Rights, on the basis of Article 17 of the International Covenant on Civil and Political Rights, aims to prevent interference with private life, and there is a difference.
Zhang Juneng: Law does not recognize same-sex partnerships
Does not constitute interference in private life
Zhang Juneng emphasized that the lack of legal recognition of same-sex partnerships will indeed bring inconvenience, legal differences and difficulties to same-sex couples, and he does not intend to underestimate the difficulties they face. But he said the lack of legal recognition of same-sex partnerships did not constitute interference in private life. The judgment pointed out that same-sex couples often need to go to court to enjoy the rights and benefits enjoyed by opposite-sex couples under the Basic Law, but this does not in itself constitute an intervention. This situation simply reflects Article 14 of the Bill of Rights, which only includes protection against interference, rather than imposing a positive obligation on the government or legislature to provide every facility for the individual’s right to enjoy his private life. Zhang also believes that the merits and demerits of legally recognizing same-sex couples should not be discussed by the courts, but should be dealt with by the legislature.
Another permanent judge, Lin Wenhan, also agreed with Zhang Juneng’s view that the legal non-recognition of same-sex partnerships does not constitute “arbitrary and unlawful interference” as stated in Article 14 of the Human Rights Act. Where partners impose requirements, or require them to disclose private information to prove their relationship, it is arbitrary interference and the government has a duty to protect them from interference.
Final Court unanimously approves constitutional freedom of marriage
heterosexual marriages only
As for Cen’s other challenge to not recognize same-sex marriages in Hong Kong and non-recognition of same-sex marriages in foreign countries, which violates the equal rights under Article 22 of the Human Rights Act and Article 25 of the Basic Law, the Final Court unanimously rejected it. The five judges all held the same view on the above two disputes. Zhang Juneng mentioned that the constitutional freedom of marriage guaranteed under Article 37 of the Basic Law and Article 19 of the Human Rights Act is limited to heterosexual marriages. According to the principle of “special law takes precedence”, the equal rights clause mentioned by the appellant does not apply. The government has no constitutional duty to protect same-sex marriage, and therefore has no duty to recognize same-sex marriage overseas.
FACV14/2022
1693935293
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