HK LGBTQ ruling ‘wisely’ avoids China rewrite, Regina Ip says

A top adviser to Hong Kong’s leader praised a landmark ruling backing same-sex unions by the city’s highest court, saying it showed “judicial independence” and protected the decision from being overruled by Beijing.

Regina Ip Lau Suk-yee, convener of Chief Executive John Lee’s Executive Council and a member of the city legislator, called the Court of Final Appeal judgment released Tuesday “a victory” for the LGBTQ community.

A five-judge panel upheld the constitutionality of the ban on same-sex marriage, but ruled the government’s failure to offer same-sex couples a legal framework for recognition was a violation of the city’s Bill of Rights, enacted under British colonial rule.

The court fully recognized the government’s “obligation to protect the privacy and dignity of same-sex couples under the Bill of Rights,” she said. “I think the CFA made a very clever judgment.”

By finding there was no breach of Hong Kong’s Basic Law, the mini-constitution that took effect after the city’s return to Chinese rule in 1997, the court “skirted” the possibility of China’s top legislature getting involved in the case, she said.

The Standing Committee of the National People’s Congress has used its power to interpret the Basic Law five times, most recently in 2016 when it barred politicians with separatist views from holding office.

Had Hong Kong’s top court ruled the same-sex marriage ban violated the Basic Law, the NPC Standing Committee could have stepped in to provide an interpretation, Ip said. “The CFA wisely avoided this possibility,” she said.

The Hong Kong court gave the government two years to comply with the ruling after the issue of a final order, which would happen after both parties gave written submissions.

“Since the parties may lodge written submissions on relief as directed by the court, the case has not completely concluded and it is inappropriate to give any comment at this juncture,” a government spokesperson said.

“The government has wide discretion on timing,” Ip said, and may need to conduct a consultation on what same-sex partnerships would qualify for legal recognition. “The government will need to put a bill to the Legislative Council.”

Ip is known for supporting LGBTQ rights, a position that’s often put her in the cross hairs of fellow pro-Beijing lawmakers.

China has shrunk the space for its own LGBTQ community under President Xi Jinping, with some groups that supported such communities being cut off from public meeting spaces or banking services. The public display of rainbows has become sensitive.

Separately, Executive Councillor and senior counsel Ronny Tong Ka-wah said setting up an alternative legal framework for same-sex couples to legitimize their basic social needs is not an easy task for the government and could lead to legal disputes.

"Whether a lot of same-sex couples will travel to overseas countries to get married and return to Hong Kong to apply for such services, and whether the government is capable of handling all of their applications will be practical questions faced by Hong Kong," he added.

(Staff reporter and Bloomberg)