Legal disputes to be ‘resolved locally,’ gov’t says after Beijing intervention urged on LGBTQ court rulings
Hong Kong Free Press
“Relevant legal disputes” on the top court’s recent rulings in favour of same-sex couples’ rights should be resolved locally, authorities have said, after a pro-Beijing lawmaker known for his anti-LGBT stance suggested that Beijing make an interpretation of the Basic Law.
Last week, lawmaker Junius Ho led a forum to discuss the Court of Final Appeal’s rulings last month which affirmed same-sex married couples’ housing and inheritance rights.
He called the verdicts a “bombshell” and said the government should override the decisions. Ho suggested that the granting of such rights to same-sex couples may conflict with China’s constitution and Hong Kong’s Basic Law provisions on marriage and family.
The government should order the Court of Final Appeal to issue an interpretation of Article 37, Ho said, in line with the Basic Law, stating that the top court should seek an explanation from Beijing in matters relating to “permanent, serious consequences.”
In doing so, the top court’s decisions could be found to be unconstitutional and Hong Kong authorities would not need to implement the rulings, the lawmaker added.
Article 37 of the Basic Law states that the “freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”
In response to HKFP on Friday, the Department of Justice (DOJ) said: “In handling this case, the Government did not request the Court of Final Appeal to seek interpretation of Basic Law from the Standing Committee of the National People’s Congress.”
The DOJ added that the “relevant legal disputes should be resolved locally in judicial proceedings.”
Landmark verdicts
Hong Kong does not recognise overseas marriages by same-sex couples. In September 2023, the top court handed a partial victory to the LGBTQ community, ruling in a case lodged by pro-democracy activist Jimmy Sham that the government has an obligation to provide an alternative legal framework that recognises same-sex relationships.
The government was given two years to develop a mechanism that recognises same-sex relationships before being judged to be in breach of the law.
In November, the Court of Final Appeal delivered a landmark victory to LGBTQ activists. The verdicts – all reached unanimously by a panel of five judges – encompassed three separate judicial reviews, a legal procedure that calls on the Court of First Instance to examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Two of the cases involve a challenge of the government’s Public Rental Housing Scheme and the Home Ownership Scheme, which exclude same-sex partners from its definition of “ordinary families” and “spouses.”
One of the cases revolved around the city’s inheritance laws, which state that only those in a “valid marriage” can inherit the property of their partner if they pass away without a will. Same-sex couples are excluded.
‘Bad Western influence’
At the forum last Thursday, Ho said the court made the rulings based on the principles of diversity, inclusiveness and equality.
“Diversity, inclusiveness, equality. Together, they are D-I-E. Die. A dead end,” Ho said, adding that these values cannot override the constitution.
The lawmaker also said that the court’s rulings were paving the way for the legalisation of same-sex marriage in Hong Kong.
In a statement, the International Probono Legal Services Association – an organisation that Ho founded and which held the forum – claimed the rulings did not take into account risks to national security.
“The verdicts amount to introducing bad Western influences into Hong Kong society, undermining traditional Chinese family values and societal order,” the statement read. “This is precisely a major concern for national security.”
Jerome Yau, the co-founder of NGO Hong Kong Marriage Equality, told HKFP last week that urging a cancellation of the top court’s decisions was essentially asking the government to disobey the court. Such calls were against the rule of law and potentially an act of contempt of court, he said.
“The whole thing is not about politics and national security,” Yau said. “It’s about how we treat these couples. These couples, just like everybody else, want to form a family. They are productive, law-abiding citizens who want to contribute to society, who want to get on with their lives.”
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