Remedial Duty and Defiance: The Constitutional Stakes of Hong Kong’s Expired Suspended Declaration on Same-Sex Partnerships
—Chi-Sang Poon, Hong Kong Rule of Law Initiative (HKROLIN)[1]
Introduction
On 27 October 2025, the Court of Final Appeal’s suspended declaration in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 31 expired without the required legislated framework for recognising same-sex partnerships. This lapse crystallizes a continuing constitutional breach of Hong Kong’s “mini-constitution,” the Basic Law—particularly Articles 4 and 39, which impose positive obligations on all branches to safeguard rights. In a political landscape reshaped by the 2020 National Security Law, the case now tests whether final judicial remedies retain binding force amid deepening executive–legislative defiance. Reaffirming the suspended declaration as an enforceable restitution order—not a symbolic advisory—this article rebuts “no-consequences” narratives, draws on domestic (W) and comparative (Fourie, Doucet-Boudreau, M v H) precedents, and situates Hong Kong within a three-tiered remedial framework: the UK’s advisory declarations, Canada’s restraint-based model, and Hong Kong’s Basic Law, which uniquely imposes an explicit constitutional duty to implement rights. It argues that Sham’s demand for wholly new legislation—rather than administrative adjustment—poses an unprecedented constitutional challenge that requires the Court of Final Appeal to fulfil its duty under the Basic law to hold the political branches accountable for upholding their positive obligations. It further underscores the emerging role of amicus curiae participation as a remedial safeguard against informational asymmetry, enabling proportionate escalation of supervision where non-compliance persists.
I. Hong Kong’s Constitutional Order Under Strain: The Stakes of Remedial Authority
At first glance, the expiry of the suspended declaration in Sham Tsz Kit may seem a narrow setback in the recognition of same-sex partnerships. For comparative public-law observers, however, it exposes a deeper tension: whether time-limited judicial remedies retain binding force at expiry amid entrenched resistance to rights reform.
The Basic Law functions as Hong Kong’s post-handover “mini-constitution.” Article 39 incorporates ICCPR guarantees via the Hong Kong Bill of Rights (HKBOR); Article 4 imposes a positive obligation to safeguard rights; and Article 82 vests final adjudicative authority in the Court of Final Appeal (CFA). Once the CFA identifies a rights violation, remedial compliance is constitutionally required – not discretionary.
Since 2020, this architecture has come under acute strain. The 2021 electoral overhaul yielded a legislature closely aligned with executive priorities, narrowing policy space for contested initiatives. Policymaking has become vertically coordinated; dissent, politically costly; and rights-based reform, an unthinkable luxury. The Legislative Council’s September 2025 veto of the Government’s Registration of Same-sex Partnerships Bill—blocking executive implementation of a judicial order—exemplifies this shift.
Practical enforceability now depends as much on executive–legislative cooperation as on doctrine. It was against precisely this risk that the CFA issued a suspended declaration of invalidity—a device long recognised in jurisdictions such as South Africa and Canada—and extended the suspension to two years, anticipating legislative resistance.
Expiry following coordinated abstention now poses a constitutional question without precedent: if the legislature declines to legislate and the executive defers to that inaction, does finality dissolve—or does the Court retain supervisory authority to prevent its judgment from being hollowed out? Suspended declarations derive legitimacy from activation at expiry. Sham will test whether that activation point retains legal consequence in Hong Kong’s positive-obligation framework.
II. The Sham Tsz Kit Judgment and Its Remedial Design
The litigation began in 2020, challenging Hong Kong’s blanket non-recognition of overseas same-sex marriages. The appeal advanced three propositions: (1) a constitutional right to same-sex marriage; (2) a positive obligation to provide an alternative framework for legal recognition; and (3) recognition in Hong Kong of foreign same-sex marriages.
On 5 September 2023, the Court of Final Appeal unanimously rejected (1) and (3), but—by majority—accepted (2): the Government is under a positive obligation under HKBOR Article 14 (privacy/family life) to establish an alternative framework for recognising same-sex partnerships and to provide attendant rights and obligations.
The majority’s reasoning (at ¶¶125–215) drew on two strands: (i) the European Court of Human Rights’ positive-obligations jurisprudence under Article 8; and (ii) Hong Kong case law affirming positive duties to render rights effective—most notably Leung Kwok Hung v HKSAR (2005), citing Plattform Ärzte (1988), requiring “reasonable and appropriate measures” to secure the practical enjoyment of rights. This effect-oriented principle formed the doctrinal bridge to mandate legal recognition.
Applying that logic, the CFA in Sham declared the absence of any framework unconstitutional, while suspending the declaration for two years to permit compliance. In a supplemental judgment, it granted liberty to apply “in connection with the implementation of or non-compliance with this Order,” obviating fresh judicial review while allowing extensions for compelling reasons. The Court made clear that legislation, not administrative guidance, was required.
Comparatively, Sham marks an evolution in remedial design: not in the suspension itself, but in the unprecedented need for post-expiry supervision to meet the equally unprecedented requirement of new legislation.
III. Debunking the “No-Consequences” View: Positive Duties and Constitutional Culpability
After the legislature vetoed the Government’s narrow partnership bill in September 2025, Hong Kong entered a moment of constitutional reckoning. The expiry of the Court’s suspended declaration called for lawful follow-through—not administrative improvisation. Yet the Government declined to seek an extension (HKFP, 12 Sept 2025) and instead floated post-expiry administrative measures (HKFP, 30 Oct 2025), despite the judgment’s requirement of legislation.
Following the veto and expiry, some commentaries argue that no enforceable consequences remain—beyond administrative or declaratory relief—because the Court did not specify contingent steps post-expiry, drawing analogy to the UK’s advisory-declaration model (HKFP; Verfassungsblog, 9 Sep 2025). That analogy is misplaced. Post-handover Hong Kong does not operate under parliamentary sovereignty. Judicial restraint in specifying consequences before expiry reflects orthodox avoidance of prejudgment—it does not imply impunity afterward. When courts declare a rights violation, they do not merely comment—they resolve.
Sham also introduces a post-expiry temporal dimension to culpability:
| Phase | Nature of Wrong | Character | Culpability |
| Pre-Judgment | Unexamined omission | No judicial notice | Negligent |
| During Suspension | Acknowledged breach | Opportunity for remedy | Excused by structured grace |
| Post-Expiry | Continuing violation despite deadline | No remedy within suspension period | Knowing and wilful |
The supplemental judgment’s liberty-to-apply jurisdiction—“in connection with the implementation of or non-compliance with this Order”—therefore undercuts “no-consequences” claims. In constitutional systems where judicial finality binds the Government, expiry activates supervisory jurisdiction. This doctrinal architecture ensures that suspended declarations retain binding force rather than dissolving into symbolism.
IV. The Restitution Order in Action: Domestic Precedents and Accountability Pathways
To connect the constitutional to the legal: a suspended declaration—if it is to be more than symbolic—must operate like a restitution order: identifying a continuing wrong and requiring its repair by a fixed deadline.
Operative analogies
| Analogy | Core Mechanism | Mapping to Sham |
| Restitution Order | Court-directed repair of continuing harm | Build a statutory framework |
| Structural Injunction | Ongoing supervision | Liberty-to-apply oversight |
| Suspended Sentence | Grace before sanctions | Post-expiry wilfulness |
| “Affirmative” Restraining Order | Requires action, not restraint | Timely implementation |
In all of the above, continued non-repair can engage post-expiry remedies. In Leung Kwok Hung, the CFA immediately severed unconstitutional wording; as no legislative content was added, no suspension was required—preserving adjudicative clarity without encroaching on legislative competence.
In W v Registrar of Marriages (2013), the Court read in words to cure discrimination and, exercising judicial restraint, suspended the declarations for 12 months to allow legislative amendment (W, at ¶¶ 147–150). After the bill failed, the reading-in took effect automatically at expiry, curing the breach without further judicial intervention. This reflected a self-executing fail-safe—a form of post-expiry jurisdiction requiring no oversight—balancing the Court’s positive obligation to safeguard rights with respect for legislative primacy.
Sham, by contrast, requires wholly new legislation beyond interpretive repair. Unlike W, it lacks a self-executing remedy and therefore demands active post-expiry judicial supervision to preserve its binding force. Under liberty-to-apply, accountability pathways include supervisory orders (e.g., timelines or reporting), as in Doucet-Boudreau (2003 SCC 62) (as elaborated in Section V)); and mandamus compelling the executive to exercise its Basic Law powers—such as those under Articles 48, 50 and, if necessary, 52(3)—to secure legislative compliance. Interpretive tools such as severance or reading-in may offer temporary safeguards but cannot substitute for legislative repair: if they were sufficient, the Court would have adopted them in the judgment itself, as in Leung Kwok Hung or W.
Where non-compliance persists, contempt jurisdiction can be invoked to protect Article 82 finality. In egregious cases, misconduct in public office (MIPO) liability may arise. As affirmed in Tsang Yam-keun(2019), MIPO addresses grave derelictions of duty breaching public trust and frustrating lawful governance, attaching where misconduct is sufficiently serious—judged against official responsibilities—to warrant criminal condemnation.
V. Comparative Perspectives: Supervisory Teeth Beyond Hong Kong
Extending Section IV’s accountability pathways, comparative precedents confirm that suspended declarations possess genuine supervisory force across diverse constitutional settings, deterring post-expiry erosion of rights.
Comparative Snapshot
| Jurisdiction | Leading Case | Suspension | Post-Expiry Dynamics |
| Canada | Vriend v Alberta (1998) | none | Immediate reading-in; suspension debated in dissent but not adopted |
| Canada | M v H (1999) | 6 months (reduced from 1 year) | Provision struck; legislature amended within the window |
| Canada | Doucet-Boudreau (2003) | none | Supervisory reporting orders upheld; continuing jurisdiction to ensure implementation |
| South Africa | Minister of Home Affairs v Fourie (2005) | 1 year | Court threatened reading-in if Parliament failed → Civil Union Act enacted |
| Mexico | Amparo litigation | staggered | Historically robust suspensive relief; 2025 reforms restricting suspensions (counter-trend) |
| Hong Kong | Sham Tsz Kit (2023–25) | 24 months | Government abstention; wholly new statutory framework required; post-expiry activation engaged |
Across these systems—ranked by escalating remedial intensity—two constants emerge: expiry often triggers heightened judicial oversight, and courts retain supervisory tools even when compliance renders them unnecessary. Even under the United Kingdom’s parliamentary sovereignty, judges have signaled time-bound oversight to deter governmental inertia (e.g., procedural directions in Nicklinson, following Miller [I] [2017] UKSC 5).
By contrast, the Canadian Charter generally secures rights through restraint-based duties—obligations not to infringe rather than to act affirmatively. Yet in Doucet-Boudreau, the Supreme Court insisted that remedies under section 24(1) must be “effective” and “responsive,” upholding reporting orders and retained jurisdiction to ensure delivery of French-language schools. Even within a negative-rights framework, the Court recognized that declaratory relief may require continuing judicial involvement.
Hong Kong occupies a higher constitutional plane. Basic Law Article 4 imposes an affirmative duty on the Region to “safeguard the rights and freedoms” of residents in accordance with law—a positive obligation binding all branches, drawn verbatim from Annex I of the 1984 Sino-British Joint Declaration and entrenched unchanged for fifty years. In Sham, this duty intersects with HKBOR Article 14’s protection of privacy and family life (see Section II, Sham at ¶¶125–215), requiring “reasonable and appropriate measures” for the practical enjoyment of rights. This elevates remedial supervision from discretion to constitutional necessity: the Court of Final Appeal must not merely declare rights but ensure their efficacy. Sham thus demands wholly new legislation—beyond administrative or interpretive repair—investing its suspended declaration with enforceability surpassing foreign comparators.
If Canada’s Supreme Court could retain jurisdiction in Doucet-Boudreau despite functus officio limits, Hong Kong’s CFA—fortified by Article 4’s explicit mandate—bears an even stronger duty to supervise. Although legislative votes lie beyond compulsion, the Court must ensure executive deployment of Articles 48, 50, and, if necessary, 52(3) to advance legislative compliance. Such oversight fulfills the Basic Law’s positive-enforcement design, compelling political branches to honour their constitutional duties and ensuring that the declaration binds beyond its expiry.
VI. Forward-Looking: Structural Limits of Post-Expiry Supervision and the Amicus Safeguard
A. The Role of Amici: Overcoming Informational Asymmetry
With expiry passed in Sham, constitutional supervision returns to the judiciary. Liberty-to-apply permits applications “in connection with the implementation of or non-compliance with this Order,” enabling outcome assessment without fresh proceedings. Yet supervision often depends on information the executive exclusively controls. Independent amici help close this gap by supplying evidence, comparative analysis, and testable legal argument. Where rights enforcement risks erosion by opacity, amici help ensure that supervision remains factually grounded—not blind.
B. Proportionate Escalation: When Warranted
Where post-expiry non-compliance persists, additional supervisory tools become relevant. First, court-initiated contempt remains available in constitutional systems to protect Article 82 finality where disobedience is knowing and wilful. Second, serious misconduct—such as MIPO—may be pursued through conflict-insulated private prosecution, especially where DOJ conflict or takeover risks impartiality. Leave and judicial oversight provide procedural safeguards. In a constitutional order founded on Article 4’s unique positive obligation, such escalation is not extraordinary but intrinsic: it operationalises the judiciary’s duty to ensure that rights are made effective through accountable implementation. These mechanisms form a graded-sanctions architecture, preserving finality where strategic abstention persists—without collapsing constitutional boundaries.
Conclusion
The expiry of the suspended declaration in Sham Tsz Kit presents Hong Kong with a constitutional inflection point: will final judgments bind the Government in practice, or will coordinated abstention and informational opacity reduce them to ceremony? Articles 4, 39, and 82 demand the former.
Comparative experience—from the United Kingdom’s advisory declarations to Canada’s monitored remedies—shows that suspended declarations gain legitimacy only through enforceability at expiry. Hong Kong’s Basic Law raises the bar still higher: its explicit positive obligation transforms post-expiry supervision from judicial discretion into constitutional duty. Rights are not self-executing; they must be made effective through accountable implementation.
Sham’s grace period has ended; the breach persists. The Court of Final Appeal now bears a constitutional obligation to act—within institutional limits yet without retreat—to ensure its final orders are implemented. Assisted by independent amici, it must verify executive diligence, compel lawful use of constitutional powers to facilitate legislative cooperation, and escalate proportionately where non-compliance endures. The choice will determine whether final adjudication in Hong Kong continues to bind the political branches—or quietly recedes into symbolism. Whether its suspended declaration grows teeth—or dissolves into oblivion—will mark a watershed in the region’s constitutional future.
Suggested citation: Chi-Sang Poon, Remedial Duty and Defiance: The Constitutional Stakes of Hong Kong’s Expired Suspended Declaration on Same-Sex Partnerships, Int’l J. Const. L. Blog, Nov. 13, 2025, at: http://www.iconnectblog.com/remedial-duty-and-defiance-the-constitutional-stakes-of-hong-kongs-expired-suspended-declaration-on-same-sex-partnerships/
[1] The author thanks Professor Sharon Hom for her helpful comments on an earlier draft.
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International and Comparative SOGIESC Law - Professor Andreas R Ziegler 