Source: Hong Kong 01

01 Review Editor Room

The Court of Final Appeal made a claim that Cen Zijie appealed on Tuesday (September 5) and was regarded as a victory of Hong Kong's comrades.The Hong Kong government does not recognize same -sex marriage. The court believes that it does not violate the Basic Law and the Hong Kong Human Rights Act.

Chief judges Zhang Junneng, permanent judges Li Yi, Huo Zhaogang, Lin Wenhan, and very judge Qianyi agreed that Cen Zijie did not enjoy the right to same -sex marriage in the Constitution, and the government did not recognize the foreign -sex marriage in foreign countries.Article 22 of the Human Rights Act.

However, whether the government must provide alternative methods to legal recognition of same -sex relationships, five judges give the results of the three -two two.Li Yi, Huo Zhaogang and Qixianyi believed that the government violated Article 14 of the Human Rights Act, that is, the right to protect the private life by law.

Article 14 of the Hong Kong Human Rights Act: Protection of private life, family, residential, communication, reputation and credit

(1) Anyone's private life, family, residential, or communication shall not be unreasonable or illegally invaded, and their reputation and credit shall not be illegally destroyed.

(2) Everyone has the right to be protected by law for this kind of invasion or destruction.

Will the alternative framework shake the opposite sex marriage?

If you pay attention to the past comrades' cases, it should not be surprised that the two are objections.When Zhang Junneng and Lin Wenhan became the positive and deputy president of the Appeals Division, they established a two -step analysis method for comrades' equal rights in the QT case and applied to the Liang Zhenyu case.They advocate whether it involves the unique "core rights and obligations" of marriage. If it does not involve, the second step is to review whether the relevant policies are reasonable and responsible.

It is worth noting that the Liang Zhenyi case also quoted Article 14 of the Human Rights Act to challenge the officials who were not allowed to get married to the foreign -tolected tax and evaluate taxes.Live your feet.What's more, in this judicial review, Cen Zijie is not an individual policy such as tax reporting, but requires the government to formulate alternative methods to recognize same -sex relationships in law, and it is naturally easy to cause concerns.

In the verdict of Cen Zijie's case, Lin Wenhan's attention to the marriage system is obvious.He pointed out that if the government must formulate some core rights for same -sex partners, it will inevitably include all the core rights and benefits currently enjoyed by the opposite sex couples, and the new system will not be different from marriage, even if the name is different.However, Li Yi and Huo Zhaogang emphasized that the ruling this time refers to the government that cannot have no "any" replacement method.In other words, this replacement framework is not necessarily a civil combination, and the government's appropriate space for the appointment of elasticity should contain what rights and responsibilities should be contained.

Does the Human Rights Act contain positive obligations?

As for the key to this case, that is, how to understand Article 14 of the Human Rights Act, the differences in several judges are also quite prominent.Although the words of the provisions are "unreasonable or illegal invasion" and "the right to be protected by law", Li Yi and Huo Zhaogang believes that it means the same as Article 8 of the European Human Rights Convention, that is, private and family life has the right to be "respected".As a result, the government must not only prevent intervention, but also perform positive obligations to formulate laws.

In the verdict written by the two, the QT and Liang Zhenyu cases were mentioned three times, but the Oliari cases and Fedotova cases of the European Human Rights Court were mentioned 10 and 5 times, respectively.Their understanding of Article 14 of the Human Rights Act obviously refers to the legal science of many European Human Rights Courts.On the contrary, Zhang Junneng spent a lot of space to point out that European cases have their social and cultural backgrounds. Hong Kong courts must be cautious, especially when the situation in Hong Kong society is different from Europe.Lin Wenhan also believes that Article 8 of the European Human Rights Convention is different from Article 14 of the Human Rights Act. Hong Kong should not adopt the case of the European Human Rights Court to make judgments.

It is undeniable that European and American society's discussions on comrades' equality are richer than Hong Kong, and the development of jurisprudence may also be more mature.From the W case, the QT case, and the Liang Zhenyu case to the Cen Zijie case, the enlisted party hired the British Royal Lawyer. Among the four times of the Department of Justice, the British Royal Election was hired three times.The senior barrister of Huang Jiming in Hong Kong was one of the teams hired by the Department of Justice from the WA, and it was also officially led by this time.

Hong Kong people want to build Hong Kong social value

However, I believe that no judge will deny that every society has its own uniqueness.As an international and open city, Hong Kong must of course tolerate and accept people with different sexual tendencies, but it does not mean that we do not have our own cultural and social system.In addition to retaining the marriage system of monogamy, what policies and laws should be developed to respond to the needs of same -sex partners, and the government cannot simply plagiarize from other places or in the Mainland.

Singapore is undoubtedly an international city, which has attracted many Western companies and talents to settle down, but while criminating men's homosexual behavior, they also proposed to write a monogamy's marriage definition into the constitution.Different society can -even have different systems in ensuring basic rights and opposition to discrimination.

The court gives the government for two years to formulate appropriate rights and responsibilities of homosexual partnership relationships.Compared with the QT case and the Liang Zhenyu case, it is not a bad thing to review and comprehensively review the current system once and comprehensively.Since the judge also explicitly explicitly enjoy the elastic space, they should even bear the responsibility of administrative and dominant.This is not only to fully grasp the human rights law and public law, but also to consolidate social consensus and build the values and systems that are Hong Kong people.Obviously, this is another major challenge for the Li Jiachao government.