Hong Kong legislators within their rights to reject same-sex couples bill

In his seminal work Introduction to the Study of the Law of the Constitution, the constitutional theorist A.V. Dicey discussed parliamentary sovereignty in the UK. He called Britain’s parliament “an absolutely sovereign legislature” with the “right to make or unmake any law”. Although the doctrine has since evolved, it remains integral to the country’s constitutional arrangements. Whereas the government can invite parliament to enact laws, legislators can refuse. They may, for example, conclude that a particular bill is against the public interest or otherwise unacceptable to the community, whose views they represent. Moreover, when the British parliament debated the Internal Market Act in 2020, a question arose of whether it was open to the government to propose laws that violated the UK’s obligations in international law. Sir Stephen Laws QC advised that the propriety of breaching the obligations was ultimately a political question for parliament. In defending its bill, the government stressed that, “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s treaty obligations. Parliament would not be acting unconstitutionally in enacting such legislation.” As the Legislative Council debates the Registration of Same-Sex Partnerships Bill, the British experience is instructive. First and foremost, the council, elected as it is by various sectors in the community, is supreme. Moreover, if it dislikes the bill, it has the constitutional right to reject it, ramifications notwithstanding. In 2023, the Court of Final Appeal (CFA), in a 3-2 majority judgment, said the government should create a legal framework for couples who have undergone same-sex marriage ceremonies in foreign places, but legislators have the last word. The CFA held that the government was “in violation of its positive obligation under the Hong Kong Bill of Rights (Art 14) to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation”. However, it stayed the operation of its declaration until October 27 this year to give the government time to comply with its obligation. As former CFA judge Henry Litton has explained, “The executive arm of government is not slave to the CFA”. He added that if Hong Kong’s family law structure is to be changed, it was “the responsibility of the executive and legislative authorities, not that of the judiciary”. Article 73 of the Basic Law provides that one function of the Legco is “to enact, amend or repeal laws in accordance with the provisions of the Basic Law and legal procedures”, meaning its powers are wide. Whereas the bill seeks to satisfy the CFA’s ruling, neither the government nor the judiciary can direct the council to enact a law to which it objects, even if there is an incompatibility with particular legal obligations. Although critics sometimes accuse the council of being a “rubber stamp” legislature, many legislators are now asserting their rights and following their consciences. The legislators are also undoubtedly aware that, under Article 49 of China’s constitution, traditional marriage, family and motherhood are specifically protected. It provides no scope for same-sex marriage, and any law that questions this is necessarily suspect. While the bill’s proponents have suggested its rejection might affect Hong Kong’s international standing, this need not be a concern as only 38 countries worldwide have recognised same-sex unions. Although the CFA rejected the notion of same-sex marriage, some people, including legislators, find steps in that direction to be unacceptable. As such unions are not legally recognised in Hong Kong, it is not easy to understand how those entered into elsewhere can be provided with even limited legitimacy. If same-sex unions are deemed the way forward, the government should produce an enabling bill rather than tinkering around the edges, which could have unforeseen consequences. For example, when Tony Blair’s government enabled civil partnerships for same-sex couples in the UK in 2004, some people assumed that was the end of the matter. Barely a decade later, David Cameron’s government enacted its same-sex marriage law. According to Executive Councillor Ronny Tong, the government may need to modify the bill to make it more acceptable to lawmakers – but this may be wishful thinking. Even if watered down, some legislators will remain reluctant to confer any sort of formal recognition on same-sex marriages entered into in the United States or elsewhere. If they decide the bill is not something Hong Kong needs or wants, they will have discharged their constitutional function and their decision should be respected by everybody, including the judiciary. The legislators will, however, be answerable to their electors, who might applaud their decision.

Hong Kong legislators within their rights to reject same-sex couples bill

.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}If lawmakers decide the city does not want or need a bill to recognise certain rights for same-sex partnerships, that should be respected by all

If lawmakers decide the city does not want or need a bill to recognise certain rights for same-sex partnerships, that should be respected by all