MK v Government of HKSAR: Right to marriage of same-sex couple not recognised by Court of First Instance

MK v Government of HKSAR

Summarised by Rachel Mo (Associate)

Facts

The applicant (‘MK’), who is a Hong Kong permanent resident, is a lesbian who has cohabited with her same-sex partner for two years. The same-sex couple hoped to gain formal recognition to their relationship through legally recognised civil union/registered partnerships in Hong Kong. Failing to do so, MK launched a judicial review to challenge the Basic Law (‘BL’) and Hong Kong Bill of Rights (‘HKBOR’) for the violation of such rights.  
 
Court of First Instance

Two issues were raised for determination: 

1. Whether the constitutional rights of same-sex couples were violated if their right to marriage is denied; and 
2. Whether the Government’s failure to provide an alternative legal framework to marriage (such as civil unions, registered partnerships or other legally recognised status) violates the constitutional rights of same-sex couples.

 
Issue 1

The issue was responded in the negative as the Court was unwilling to extend the existing statutory definition of “marriage” to include same-sex couples as this would constitute an interference to social policies and go beyond functions and power of courts.  
 
The Court opined that the expression ‘marriage’ at BL Article 37 refers only to heterosexual marriage, providing three reasons for such an interpretation:  

1. When BL came in to effect on 1 July 1997, Hong Kong laws did not recognise same-sex marriage.  
2. Unreal to attribute to the drafting intention of the BL as to include same-sex marriage to the word ‘marriage’ when at the time for promulgation of BL, no country in the globe recognised same-sex marriage.  
3. HKBOR Article 19, which is incorporated into the BL by virtue of Article 39, protected only the right of marriage for heterosexual couples.  

The Court acknowledged international developments to recognising same-sex marriage, thus updates made on legislation interpretation may be conducive in adapting to the changing societal needs and to be consistent with the international community. However, the Court emphasised that there lacks strong and compelling evidence within the local community to depart from the long-standing interpretation to ‘marriage’ between opposite sex. Moreover, in view of the far-reaching social, legal and economic ramifications, the Court was reluctant to effect a policy change through such interpretation.  
 
Issue 2

The issue was responded in the negative as the Court bore no positive obligation in providing an alternative legal framework to grant same-sex couples the identical rights and benefits of heterosexual couples.  
 
3 reasons are identified:  

1. The Court should look at ‘substance’ and not “form”, thus it would be wrong in principle for courts to achieve through other channels if the government is under no legal obligation to provide such rights.  
2. The Court declared that it is a matter for the Legislature to determine whether there should be such a legal framework.  
3. The Court would be wrong in general principle to impose a positive obligation in providing legal alternatives to marriage without examining whether any specific right ought to be available to same-sex couples, e.g. the right to adopt a child may require modification as to protect the interests of the adopted child.   

 
Comment

The road to a level-playing field in marriage equality has been lacking behind in Asia. Though Hong Kong courts are rather reluctant in altering the status quo given the wide social implications which would be resulted, it is acknowledged that a diverse views exists locally in terms of the rights and recognitions that should be enjoyed by same-sex couples. Ultimately, the government should undertake a more pro-active role in undertaking a comprehensive review on the existing legislation, policies and decisions to same-sex relationships, in order to better safeguard equality rights for all.