In recent years, Hong Kong has experienced an unprecedented bloom of local jurisprudence that upheld spousal rights of same-sex couples, be it parental rights in AA v BB [2021] HKCFI 1401 or spousal tax benefits in Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2019] HKCFA 19. Yet, judges have failed to bridge the chasm between recognising these ancillary rights of same-sex couples and the central right to non-heteronormative marriage in their recent decision in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28, a case in which the constitutional right to same-sex marriage was denied. In Sham Tsz Kit, the court presented two primary reasons for objecting to a constitutional right to same-sex marriage, both of which will be critiqued below.

Interpretation of Basic Law Article 37

Article 37 of the Basic Law (BL) enshrines the constitutional right to marriage in Hong Kong in simple terms – ‘the freedom of marriage of Hong Kong residents … shall be protected by law’. Whilst the diction in itself is broadly termed, the court first suggested that the constitutional context, inclusive of Article 19(2) of the Hong Kong Bill of Rights (HKBOR), would restrictively bind the said right of marriage to a heteronormative one. Article 19(2) of HKBOR guarantees that ‘the right of men and women of marriageable age to marry … shall be recognized’. In the similar case of Joslin v New Zealand, Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR), as the equivalent form of Article 19(2) of HKBOR, had been interpreted as restricted to the ‘union between a man and a woman’. Therefore, by adopting the strict interpretation used in Joslin, the court reasoned that Article 37 of the BL would only confer a right to heterosexual marriage to ensure that the provisions in the BL and HKBOR would sit together harmoniously.

However, the draconian interpretation of HKBOR Article 19(2) is uncalled for. The wording is inherently open-ended – it simply ensures the right of both men and women to marry without specifying a strict union between men and women. Furthermore, it is a pivotal common law tradition to generously interpret constitutional rights, whereby an inclusive construction of the equivocal language used in Article 19(2) of HKBOR is only proper.

In any event, s 2(5) of the Hong Kong Bill of Rights Ordinance (Cap 383) bars any derogation of fundamental human rights recognised in Hong Kong on the pretext that HKBOR recognises them ‘to a lesser extent’. Hence, even if Article 19(2) of HKBOR does constitute part of the constitutional context, its arguably narrower prescription of a right to heterosexual marriage cannot confine the more inclusive wording of Article 37 of the BL.

Use of Lex Specialis

To align with international authorities, Sham Tsz Kit also denied the constitutional right to same-sex marriage on the premise of lex specialis. This legal maxim dictates that priority shall be given to a specific, rather than general, provision if both legal norms cover the same subject matter. On this basis, the court reasoned that since BL Article 37 is the lex specialis as to marriage – interpreted as only enabling heterosexual unions – no other constitutional provisions could otherwise confer the right to same-sex marriage.

However, the uncompromising application of lex specialis is unwarranted. In international human rights jurisprudence, the Human Rights Committee (HRC) has disregarded lex specialis on multiple occasions. To illustrate, Muller and Engelhard v Namibia concerned the discriminatory treatment towards a husband, who has to apply for the change of his surname to his wife’s surname, while a wife need not apply to change her surname to her husband’s surname. Yet, the HRC decided to fully address the general provision on the right to equality under ICCPR Article 26, instead of the more particular provision on the equality of rights between ‘spouses, as to’ and ‘during marriage’ under ICCPR Article 23(4). This therefore suggests that there is no mandated application of lex specialis in the context of rights interpretation, even within the subject matter of marriage. Hence, local courts may well deviate from this interpretation principle to give due respect to other constitutional rights to equality, privacy, and freedom of conscience.

Asia is currently experiencing a progressive wave of legalisation of same-sex marriage and recognition of foreign same-sex marriage. Moving forward from Sham Tsz Kit, it remains hopeful that Hong Kong courts will embrace a more inclusive future for the LGBTIQA+ community.