Chance of success not the only factor when deciding to appeal LGBTQ court cases, Hong Kong justice chief says
Hong Kong Free Press
The “likelihood of success” is not the only factor the government considers when deciding whether to appeal against court rulings, including those relating to LGBTQ issues, the Hong Kong justice chief has said.
Secretary for Justice Paul Lam said in the Legislative Council on Wednesday that the authorities must take into account “overall public interest,” as well as the effect on the use of public resources if the judicial review was successful.
Lam’s statement was in response to a question from lawmaker Regina Ip, who asked the government how many judicial review cases relating to alleged restrictions on human rights had been filed over the past five years, and if authorities had insisted on appealing despite a potentially low success rate.
Members of the public can lodge judicial reviews, to be considered by the Court of First Instance, to ask judges to examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
The justice chief said that between 2020 and 2024, there had been 61 cases in which applicants alleged that the government imposed “excessive restriction of fundamental human rights.”
The Hong Kong government won most of those cases, with the court handing a victory to the government in 42 out of the 61 cases. It lost five cases, while 14 still have their rulings pending.
Lam did not state which the five cases were. But in recent years, the government has lost a number of cases relating to LGBTQ issues at the city’s top court.
See also: 70% of people in committed same-sex relationships want to marry, Hong Kong survey finds
They include three landmark rulings last year, in which the Court of Final Appeal sided with the LGBTQ community on same-sex married couples’ housing and inheritance rights.
In all three cases, the government had brought the cases to the top court after losing in the lower Court of First Instance.
Need for ‘authoritative’ ruling
Addressing lawmakers on Wednesday, Lam also defended the authorities’ decisions to launch appeals, saying it was necessary for obtaining a “final and authoritative ruling” that could inform the government’s policy changes.
“The government needs to understand and discern why the court held that a certain decision, policy, or legal provision did not meet certain human rights requirements before it proceeds to make a new decision, formulate new policies, or put forward legislative or amendment proposals,” Lam said.
There was hence “ample reasons” for the government to “stand firm on defending its position in the legal proceedings,” he added.
During the same meeting, lawmaker Carmen Kan asked that, given the government’s losses when it came to LGBTQ cases, whether authorities would consider not appealing to minimise public spending amid a deficit.
Lam did not answer directly but said there were already mechanisms in place to ensure that the government was “using resources wisely.”
“There are two conditions that must be met for an appeal to be permitted. The first is the issue must be broad, important and related to public interest,” he said. ” The court must also agree that the grounds for appeal are reasonably arguable. If not… we wouldn’t be able to bring the case to the top court.”
Activists have long criticised Hong Kong’s limited rights and protections for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
A top court ruling in September 2023 requires the government to come up with a framework for the legal recognition of same-sex relationships. It has until October this year to do so, but is yet to begin a public consultation.
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