Sticking to the Past: Same-Sex Union and Original Meaning in Hong Kong

同性結合與香港憲法的原意

在MK v. HKSAR的案件裡，香港的原訟法庭載定香港政府不容許同性婚姻的決定並不違憲，而且它亦沒有責任提供其他承認同性伴侶關係的構架。在判詞裡，法庭提到在基本法37條裡「婚姻」的定義是根據法律頒布時的理解來決定。這一篇文章指出MK案的判詞對「婚姻」的理解跟終審法院在W. v. Registrar of Marriages裡的解讀並不一致。它更指出香港法院應該跟隨歐洲人權法院和一些其他普通法國家的案例，承認同性婚姻或是在本地把同性婚姻合法化。

This article builds on the author’s work on the uses of history by the Hong Kong law courts in the context of sexual minority rights, and focuses on the judicial turn to original meaning in the territory’s latest case on marriage equality: MK v. HKSAR. In that case, the Court of First Instance held that neither the government’s refusal to legalize same-sex marriage nor its failure to provide an alternative framework for the recognition of same-sex relationships was unconstitutional. In particular, the court reasoned that the meaning of “marriage” in Article 37 of the Basic Law, which guarantees the right to marry and to raise a family freely, should be determined in light of the understanding of the term when the constitutional document was promulgated. I argue that the court’s insistence on original meaning goes against the grain of the majority judgment in W v. Registrar of Marriages, which to date remains the only case on the right of marry from Hong Kong’s Court of Final Appeal. I further argue that despite the Court of First Instance’s reliance on lex specialis, there is significant precedential force for the introduction of both same-sex marriage and civil partnerships in Hong Kong.