A legal bid by LGBTQ activist Jimmy Sham to have overseas same-sex marriages recognised in Hong Kong has been dismissed by an appellate court. The city’s law only acknowledged unions between a man and a woman, the written judgement from the Court of Appeal read.
Sham, who tied the knot with his husband in New York in 2013, launched his latest challenge last month, appealing the dismissal of his first judicial review attempt in September 2020. The Court of Appeal handed down a written judgement on Wednesday, rejecting Sham’s appeal.
Sham, who was also the former leader of disbanded protest group Civil Human Rights Fronts, faces a charge of conspiracy to commit subversion under the national security law over organising or taking part in an unofficial democratic primary election in July 2020. He has been held in custody since March 2020 pending trial.
Violation of rights to equality
Sham’s lawyer Hectar Pun argued that although the city’s mini constitution enshrines the institution of marriage for heterosexual couples, it does not preclude same-sex couples to have access to marriage.
Article 37 of the Basic Law stipulates that “[t]he freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”
Pun argued the court was duty-bound to evaluate whether the exclusion of same-sex marriage was a violation of people’s right to equality, as guaranteed by Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights Ordinance.
Traditional sense of marriage
Those arguments, however, were rejected by the court in its 33-page judgement. Chief Judge of the High Court Jeremy Poon, Vice President Susan Kwan and Justice of Appeal Carlye Chu wrote that the laws “must be read as a coherent whole.”
The judges said that Article 37 must be read in congruence with Article 19(2) of the Bill of Rights, which stipulates “[t]he right of men and women of marriageable age to marry
and to found a family shall be recognised.”
“[I]t strongly suggests that the freedom to marriage thereunder is granted to heterosexual couples only,” the judges ruled. They went on to say that same-sex marriage was only recognised legally for the first time in the world in 2001, when the Netherlands became the first country in the world to legalise it.
“Self-evidently, the drafters of the Basic Law must have only used the term “marriage” in [Article] 37 in the traditional sense of being a union between a heterosexual couple,” the judgement read. “Any suggestion otherwise is divorced from reality.”
Rights to privacy
Sham’s lawyer also argued that not recognising foreign same-sex marriages was a violation of the rights to privacy as protected by Article 14 under the Bill of Rights.
Pun said such rights were “autonomous, free-standing and must be generously interpreted” to offer protection to same-sex couples as well as heterosexual ones.
The three-judge panel, however, rejected his argument, citing the legal principal of lex specialis, which means that a provision of a more specific nature will prevail over one that is more general.
The judges said that Article 37 was “undoubtedly the lex specialis” as it concerned the specific right to marry. The law prefers heterosexual marriage and “must correspondingly qualify and limit the rights on equality and privacy relied on by the applicant,” the judgement read.
Non-recognition as discrimination
The court also dismissed Pun’s argument that it amounted to discrimination that Sham’s overseas marriage was not recognised in Hong Kong. The judges said if foreign same-sex marriages were recognised – as they are for heterosexual couples who wed overseas – it could create “an inherent incompatibility” for same-sex couples who wished to marry in Hong Kong but could not do so.
The judges said Sham’s case was different from other precedents, in which the court ruled in favour of the LGBTQ community in Hong Kong, because it sought “access to the institution of marriage,” rather than fighting for certain benefits associated with marital status.
Lesbian expat QT, who accused the government of discrimination by denying her a spousal visa on the basis of marital status, won her case because it concerned the benefits arising from her relationship, but not recognition or access to marriage, the judgement read.
The appellate court ruled that the lower court judge was correct in dismissing Sham’s initial judicial review, and eventually dismissing his latest appeal.
Sham was ordered to shoulder the legal costs. His legal representative told HKFP a decision had not been made regarding whether they would take the case to the highest court because they had not received instructions from Sham as he was in custody.
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