By Preston Cheung and Venisa Wai

Venisa Wai

On September 5, 2023, the Hong Kong Court of Final Appeal (CFA) delivered a landmark judgment in Sham Tsz Kit v. Secretary for Justice [2023] HKCFA 28, ruling that the Hong Kong government’s failure to provide an alternative legal framework to recognize same-sex partnerships in Hong Kong constituted a violation of the constitutional right to privacy. The CFA subsequently suspended the operation of its order and directed the government to establish such a framework within two years, by October 27, 2025.

Just three months before the deadline arrived, the government introduced the Registration of Same-sex Partnerships Bill into the Hong Kong Legislative Council (LegCo). Neither the government nor LegCo held any public hearings about the bill, although the LegCo invited written submissions from the public. On September 10, 2025, the LegCo voted down the bill, with only 14 of 86 lawmakers voting in favor.

Our analysis of the government and the LegCo’s actions—or inactions—regarding the CFA’s order finds that both branches failed to meet their constitutional obligations. With the court-mandated deadline now past, what the government does next will send an important signal about the future of Hong Kong’s constitutional order and the authority of the CFA in deciding constitutional questions.

The LegCo’s Response

The government reported that it received a total of 10,775 written submissions from the public, of which approximately 80 percent expressed opposition. The vast majority of those were concerned that the bill would be equivalent to recognizing same-sex marriage in Hong Kong. Such a misunderstanding is understandable given that the government made no effort to educate the public. Similarly, legislators who opposed the bill overwhelmingly endorsed the erroneous view that the alternative legal framework would undermine the so-called “one man, one woman” marriage system. Some even suggested that the CFA’s ruling was “legally contentious,” “erroneous”, or inconsistent with the PRC Constitution.

Alarmingly, many legislators also expressed a view that the court’s role is to interpret the law and that the ultimate power to legislate rests with the legislature, which has the “constitutional responsibility” to check and balance the executive and judicial powers. This group included Holden Chow, speaking on behalf of the Democratic Alliance for the Betterment and Progress of Hong Kong, Hong Kong’s largest party.

The LegCo’s rejection of the bill immediately received support from Beijing, which characterized it an example of “effective operation of the Special Administrative Region’s governance system,” in which the LegCo “is not a rubber stamp” and “the executive, legislative, and judicial branches of the Special Administrative Region, under the leadership of the Chief Executive, perform their respective duties, respect one another, and interact positively.”

The Government’s Response

For its part, after failing to take more timely action, educate the public, or engage in meaningful public consultation, the government now argues that it has already fulfilled its obligation under the court order. Chief Executive John Lee said the government is exploring administrative measures to guarantee equivalent legal rights to same-sex partners without needing any action by LegCo, despite the CFA requirement of an alternative legal framework. The government’s stance echoes the increasingly prevalent view that Hong Kong has an “executive-led” system, in which the government is empowered to decide whether or how to follow the CFA order.

Administrative measures are clearly insufficient since (a) legal recognition is required to meet basic social needs similar to those experienced by different-sex couples; and (b) the absence of legal recognition has been seen to be essentially discriminatory and demeaning to same-sex couples (see Section C.1 of the CFA judgment). In fact, the Hong Kong Solicitor General Llewellyn Mui (梅基發) has acknowledged such a constitutional obligation. Therefore, the government’s proposal is not a step towards fulfilling its constitutional responsibility, but rather a signal to the public that it will not fulfill it.

[T]he government’s proposal is not a step towards fulfilling its constitutional responsibility, but rather a signal to the public that it will not fulfill it.

What is the constitutional relationship among Hong Kong’s executive, legislature, and courts? Under the Basic Law, the local constitution, are legislators empowered to veto the bill because they think that the CFA judgment is “erroneous” and that the ultimate power to legislate rests with them, or is the government empowered to substitute the legal framework with administrative measures because the system is “executive-led”? The answer must be a resounding no.

First, the conception of checks and balances under the Basic Law only empowers the LegCo to check and balance the executive power through rigorous legislative debate and scrutiny (Article 73 of the Basic Law) of the content of the “core rights” provided by the proposed alternative legal framework, not to exempt itself from the constitutional obligation affirmed by the CFA. Our constitutional protections under the Basic Law would be merely ceremonial if legislators could freely determine the scope of those protections.

Second, the so-called “executive-led” framework does not mean giving the chief executive supreme powers above the legislative and judiciary, as the Hong Kong Court of Appeal and secretary of justice have confirmed. Especially because of the synchronization between the legislature and executive under the “patriots-only” governance reforms introduced in 2021, Hong Kong’s longstanding practice of strong-form judicial review continues to provide constitutional interpretations that underpin good governance as a collective endeavor and shared obligation across branches of government.

Article 82 of the Basic Law vests the power of final adjudication in the CFA. Article 48(2) makes the chief executive responsible for the implementation of the Basic Law, meaning the chief executive has a constitutional obligation to comply with CFA rulings, including that in Sham Tsz Kit.

What’s next?

The CFA suspended its order for two years. Now that its deadline for government action has passed, the operation of the order resumes, and the government’s breach persists. The possibility that an alternative legal framework would not be established within two years was foreseen by the legal teams on both sides in Sham Tsz Kit. After considering written submissions from both parties, in its subsequent judgment on relief and costs, the CFA clarified that the parties may apply to the court directly “in connection with the implementation of or non-compliance” with the order.

The government may apply to the CFA for an extension of time to comply – something Chief Executive Lee has already said he does not plan to do. Although the CFA did not spell out what specific actions the appellant, Sham Tsz Kit — better known in English as Jimmy Sham — could take in case of the government’s non-compliance, scholars have suggested that he could ask for a court order directing the chief executive to exercise his constitutional powers to secure legislative cooperation.

Whether the court order ultimately is implemented or withers into irrelevance represents a defining moment for Hong Kong’s constitutional governance.

We believe that both the government and the LegCo must take further action. Their responses so far have sent a troubling signal to the public that constitutional rights can be dismissed when politically inconvenient. This has seriously undermined public confidence in Hong Kong’s rule of law.

The inauguration of a newly elected LegCo on January 1, 2026, offers an opportunity for the government to show its commitment to the rule of law and constitutional governance. The government must not proceed with its proposal for administrative measures but should instead work towards establishing a proper alternative legal framework as mandated by the CFA. The government also should undertake more meaningful public consultation and hearings, enhance public education about the CFA’s reasoning in its judgment, and secure the legislature’s cooperation on another bill.

Whether the court order ultimately is implemented or withers into irrelevance represents a defining moment for Hong Kong’s constitutional governance. The outcome will signal whether judicial authority remains a cornerstone of Hong Kong’s legal system or becomes subordinate to political expediency.

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Preston Cheung is a professional fellow with the National Committee on U.S.-China Relations and graduate student at the Fletcher School of Law and Diplomacy.

Venisa Wai is a Hong Kong-qualified solicitor and LL.M. candidate at Columbia Law School. She was part of the solicitors’ team for the appellant, Sham Tsz Kit. The views expressed here are solely her own and do not represent those of her former firm or any party to the proceedings.

Suggested Citation:
Preston Cheung and Venisa Wai, “Same-Sex Partnerships: A Test of Hong Kong’s Constitutional Order,” USALI Perspectives, 6, No. 5, January 6, 2026, https://usali.org/usali-perspectives-blog/same-sex-partnerships-a-test-of-hong-kongs-constitutional-order.

The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.