Hong Kong’s top court hears LGBTQ activist Jimmy Sham’s appeal for overseas same-sex marriage recognition
Hong Kong Free Press
The absence of same-sex marriage in Hong Kong sends a message that it is “less worthy” of recognition than heterosexual marriage, the city’s top court has heard during a democrat’s appeal for recognition of overseas same-sex unions.
Jimmy Sham, who turned 36 on Wednesday and was the ex-convenor of disbanded protest group the Civil Human Rights Front, appeared at the Court of Final Appeal in front of Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, Johnson Lam, and Non-Permanent Judge Patrick Keane.
Sham, who was wearing a black T-shirt in court on Wednesday, is among the 47 democrats charged under the Beijing-imposed national security law over an unofficial primary election. He has been detained since March 2021, and is awaiting sentencing, which will take place after the trial against his co-defendants who pleaded not guilty.
Sham married his partner in New York in 2013 and launched his bid for Hong Kong to recognise same-sex marriages performed overseas in 2018, arguing that it was unconstitutional for Hong Kong to not recognise overseas same-sex marriages.
The Court of Appeal dismissed the democrat’s case last August, before Sham was granted permission to take the case to the top court in November.
The Court of Final Appeal was asked to rule on three questions: whether the exclusion of same-sex couples from the institution of marriage was a violation of the right to equality under the Hong Kong Bill of Rights and Basic Law, and whether it was a violation of the right to privacy when same-sex couples were not allowed to marry in Hong Kong and there were no alternative legal recognition such as civil partnerships.
The court was also asked to determine whether it was a violation of of the right to equality that foreign same-sex marriages were not recognised in the city.
Protection of ‘traditional marriages’
King’s Counsel Karon Monaghan, representing Sham, refuted the government’s argument that allowing same-sex marriage would harm the concept of marriage, which according to the Basic Law is heterosexual.
There was no conflict between the aim of protecting “traditional marriage” and allowing homosexual marriage, Monaghan said, as same-sex couples would not enter heterosexual marriages.
It would be “extremely unlikely and fanciful” that opposite-sex couples would be discouraged from getting married because same-sex marriages were allowed, said Monaghan.
The Basic Law, Hong Kong’s mini-constitution, also did not restrict marriage to opposite-sex couples, the king’s counsel added.
Senior Counsel Stewart Wong, representing the secretary for justice, said that while Sham was also asking for an alternative recognition of same-sex partnerships, he was essentially asking, in substance, for the same rights enjoyed by people in heterosexual marriages.
Wong added that the concept of marriage “being embedded and enshrined” in the Basic Law was heterosexual.
“And then if you say that [it is] a constitutional right to have same-sex marriage either in substance and or in name… then the value enshrined in the Basic Law, which it aimed to protect, will be gone,” said Wong.
‘Core rights’
Same-sex couples were also entitled to “core rights” in their private life, including in areas concerning succession, parenting, and divorce, Monaghan argued. The lack of homosexual partnership recognition would harm same-sex couples’ right to equality, the king’s counsel added.
Monaghan was then asked to draft up a list of core rights concerned for the court, after Keane said that if the rights were not defined by her team, the king’s counsel would be asking the court to perform a legislative function by defining what those rights were.
Wong, in response to Monaghan’s argument, said that the king’s counsel could not “introduce such a concept as uncertain as subjective as core rights as a constitutional right.”
The senior counsel added that the court would not be able to draw a line to distinguish what core rights were, and that the appellant’s argument was not raised in previous appeals.
The government’s positive obligation
The secretary for justice’s representative also argued that the government did not have a “positive obligation” to recognise or provide an alternative mechanism to same-sex marriage.
Wong cited Article 14 of the Hong Kong Bill of Rights, and said that the article only stated that citizens were entitled to the protection against interference or attacks against their right to privacy, but it did not mean the government had to actively set up a legal framework to recognise homosexual marriages.
The senior counsel also relied on the lex specialis principle, which means that a provision of a more specific nature will prevail over one that is more general.
As Article 37 of the Basic Law concerning the right to marriage preferred heterosexual marriage, the court should follow that definition when interpreting other more general provisions of the mini-constitution and the Hong Kong Bill of Rights.
The hearing will continue on Thursday, where the court is expected to hear arguments concerning the proposed list of core rights.
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