Hong Kong legislators within their rights to reject same-sex couples bill

In his seminal work Introduction to the Study of the Law of the Constitution, the constitutional theorist A.V. Dicey discussed parliamentary sovereignty in the UK. He called Britain’s parliament “an absolutely sovereign legislature” with the “right to make or unmake any law”. Although the doctrine has since evolved, it remains integral to the country’s constitutional arrangements.

Whereas the government can invite parliament to enact laws, legislators can refuse. They may, for example, conclude that a particular bill is against the public interest or otherwise unacceptable to the community, whose views they represent.

Moreover, when the British parliament debated the Internal Market Act in 2020, a question arose of whether it was open to the government to propose laws that violated the UK’s obligations in international law. Sir Stephen Laws QC advised that the propriety of breaching the obligations was ultimately a political question for parliament.

In defending its bill, the government stressed that, “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s treaty obligations. Parliament would not be acting unconstitutionally in enacting such legislation.”

As the Legislative Council debates the Registration of Same-Sex Partnerships Bill, the British experience is instructive. First and foremost, the council, elected as it is by various sectors in the community, is supreme. Moreover, if it dislikes the bill, it has the constitutional right to reject it, ramifications notwithstanding.

In 2023, the Court of Final Appeal (CFA), in a 3-2 majority judgment, said the government should create a legal framework for couples who have undergone same-sex marriage ceremonies in foreign places, but legislators have the last word.

  

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