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In 2023, the Hong Kong Court of Final Appeal (CFA) handed down a significant decision requiring the creation of an alternative legal framework to recognise same‐sex unions. The judgment marked the culmination of two decades of strategic litigation challenging various forms of sexual orientation discrimination in Hong Kong, yet it fell short of recognising same‐sex marriage. The CFA's rejection was based upon an originalist construction of the Hong Kong Basic Law, the city's ‘mini constitution’, alongside a comparative analysis of select supranational human rights regimes. This note reflects upon the interpretive techniques used by the CFA and interrogates its reasons for denying the existence of a constitutional right to same‐sex marriage in Hong Kong. It argues that the CFA's use of an originalist construction was misplaced and inconsistent with its prior jurisprudence. The note also reflects on the CFA's selective use of comparative and international law, and the hazards associated with using external sources to control the interpretation of domestic public law norms.
Michael Ramsden (Thu,) studied this question.
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