On 18th October 2019, the High Court of Hong Kong handed down judgment on a judicial review challenging the definition of marriage, namely MK v the Government of HKSAR (HCAL 1077/2018).
Amidst the backdrop of recent high profile Court of Final Appeal decisions allowing same-sex couples the right to acquire spousal dependent visas as well as equal spousal benefits in civil service and to file joint tax assessments (QT v Director of Immigration (FACV 1/2018), Leung Chun Kwong v Secretary for the Civil Service and Another (FACV 8/2018)), the Court held that Hong Kong law does not put the Hong Kong Government under a positive legal obligation to provide an alternative legal framework such as civil unions giving same-sex couples the same rights and benefits enjoyed by the opposite party.
The Applicant MK is a female Hong Kong permanent resident who was born and raised in Hong Kong. MK has been cohabiting with her same-sex partner, also born and raised in Hong Kong, for the past two years. In May 2018, MK and her same-sex partner discussed entering into a legal relationship either in Hong Kong or elsewhere. However, Hong Kong law currently does not permit same-sex marriage nor does it provide for any alternative framework (ie civil union, registered partnership) for the recognition of the relationship between MK and her same-sex partner.
In June 2018, MK applied for judicial review. Leave to apply for judicial review was granted and the case was heard in May 2019.
Two principal issues arise for determination in this application for judicial review:
- whether the denial of the right to marriage to same-sex couples under Hong Kong law constitutes a violation of their constitutional rights; and
- whether the Government’s failure to provide a legal framework for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognised status for same-sex couples as an alternative to marriage also constitutes a violation of their constitutional rights
With respect to the above two principal issues, Hon Chow J answered no to both for the reasons which will be discussed below.
There is no dispute that the status of marriage brings “a broad range of personal, social, economic and legal consequences” for the husband and wife. The Applicant identified 23 specific and non-exhaustive areas arising from the legal consequences of marriage (see para 8). As such, changing the definition of marriage is to effect change of a social policy on a fundamental issue.
The current statutory definition of marriage in Hong Kong is formulated by the following 4 essential elements (see para 11), namely:
- Voluntary Union;
- For Life;
- Of one man and one woman; and
- To the exclusion of all others.
The present case is only concerned with the third element, namely “One man and one woman”. It is clear from the current statutory definition of marriage that Hong Kong does not permit same-sex marriage.
The Applicant argued that current statutory definition of marriage in Hong Kong was unconstitutional and was inconsistent in particular with Article 37 of the Basic Law (“BL”) (“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”). The Applicant’s arguments could be summarised as follows (see para 18):
- The language of Article 37 of BL, with emphasis on the words “Hong Kong residents”, should also apply to Hong Kong residents who are same-sex couples;
- The principle that fundamental rights must be interpreted generously so that the right of marriage should apply to same-sex couples;
- The context and purpose of Article 37 of BL supports extending marriage to same-sex couples;
- The principle that the BL should be construed as a living instrument intended to meet changing needs and circumstances; so the meaning of the BL should not be confined to the original intention of the drafters; and
- The protection of minorities against discrimination.
The Court was unpersuaded by the Applicant’s argument that the original intended meaning of “marriage” in Article 37 of BL could refer to homosexual marriage (see para 14). The BL was drafted and effected in the 1990s when Hong Kong law did not recognise same-sex marriage. In fact, it was not until 2001 that Netherlands became the first country to recognise same-sex marriage. Moreover, Article 19(2) of the Hong Kong Bill of Rights (“HKBR”) (“The right of men and women of marriageable age to marry and to found a family shall be recognised.”), is based on Article 23(2) of the International Covenant on Civil and Political Rights (“ICCPR”) and is similar to Article 12 of the European Convention on Human Rights (“ECHR”) (“Men and women of marriageable age have the right to marry and to found family, according to the national laws governing the exercise of this right”). Both Article 23(2) of ICCPR and Article 12 of ECHR have been interpreted to not provide for the right of same-sex marriage (see paras 34-37). Furthermore, the Hong Kong Court has expressly recognised in the past that the word “marriage” in Article 37 of the Basic Law refers only to heterosexual marriage, although the question of whether same-sex marriage could be included in the definition was not expressly argued in said cases (see para 16). Hence, the right of “marriage” in Article 37 of BL in its original intended meaning has no application to same-sex couples in Hong Kong.
While the Court was open to the possibility of an updated interpretation, it thought that this was justified only when the following conditions were satisfied (see para 23):
- there must be shown strong and compelling local reasons for the court to depart from what has been generally understood to be the law on a matter as fundamental as the marriage institution which has its basis in the social attitudes of the community;
- the court should not use the technique of updating interpretation to introduce or make a new policy on a social issue;
- the court should exercise the power of updating interpretation with great caution where the new interpretation has far reaching consequences or ramifications; and
- the court should not make an updated interpretation if the language of the legislation is not capable of bearing the new meaning sought to be given.
The Court was unpersuaded by the Applicant’s arguments that there were changing needs and circumstances of the society and relevant international developments that justified an updated interpretation of the statutory definition of marriage to provide for same-sex marriage in Hong Kong. Moreover, updating the statutory definition of marriage to include same-sex marriage would be “introducing a new social policy on a fundamental issue with far reaching legal, social and economic consequences and ramifications” (see para 24). While the Court appreciated there were international developments of same-sex marriage (ie in Australia), it emphasised that there were no comparable local developments in Hong Kong. The Court noted Hong Kong has not yet passed any law providing for same-sex marriage within its jurisdiction; nor has it demonstrated a large support for same-sex marriage such as by way of a non-binding referendum (see para 29).
Further, the Court relied on the maxim of generalia specialisbus non derogant (“the general does not detract from the specific”), whereby in interpreting constitutions specific provisions are preferred over provisions of general application when there is conflict. This is an approach that was consistently adopted by the European Court of Human Rights and the UN Human Rights Committee (see paras 34-38). It follows that if the Applicant is not entitled to the right of same-sex marriage from Article 37 of the BL or Article 19 of the HKBR, other general articles in the BL (ie Article 25 and 32) or the HKBR (ie Articles 1, 14, 15 and 22) do not confer the right of same-sex marriage to the Applicant.
The Court further distinguished Hong Kong from international cases where same-sex marriage was upheld (including Canada, South Africa, USA and Bermuda) on the ground that said jurisdictions did not have a specific marriage protection clause like Article 37 of the BL or Article 19 of the HKBR (see paras 39-44).
The recent landmark decision in Leung Chun Kwong, where the Court of Final Appeal recognised that same-sex couples are entitled to financial spousal benefits concerning employment and taxation, was distinguished in MK on the grounds that the statutory definition of marriage in Hong Kong was never argued or considered upon (see para 55).
Finally, the Court recognised that whether same-sex couples should be able to enter into a same-sex marriage or legally recognised same-sex relationship (ie civil union) remains a sharply divided issue in Hong Kong society and suggested that a comprehensive review on the matter should be undertaken by the Government. Article 37 of BL is “protective, but not prohibitive” (see para 31), meaning that it is open to the legislature to recognize and provide for same-sex marriage.
By adopting a “strict legal approach” (see para 57), the High Court has affirmed that “one man and one woman” remains an essential element of valid marriage in Hong Kong. Hence, Hong Kong law as it currently stands does not permit same-sex marriage nor does it provide legal recognition for same-sex relationships. `
Of course, the statutory definition of marriage will likely be scrutinised further by way of appeal in the MK case or by subsequent judicial reviews. It also remains open for the Hong Kong Government to engage in a comprehensive review on the matter in the future. Marriage is “perhaps the most important and sensitive of human relationships” (Chief Constable of West Yorkshire v A  1 AC 51) and that such status “is not conferred only by a person upon himself, it has to be recognised by society” (Bellinger v Bellinger  FAM 150) (see para 7). Therefore, changing the definition of marriage may still raise the question whether this is best done by the legislative branch instead of the judicial branch of the government. As the Court said, “For the court to declare that the Government is under a positive obligation to provide an alternative legal framework to same-sex couples would be very close to the court exercising legislative powers which are outside the proper province of judicial functions.”(para 47).