📄 Read the full ICONnect article (here)

Hong Kong — 13 November 2025

The International Journal of Constitutional Law Blog (ICONnect) has published a major commentary by Dr Chi-Sang Poon, Founder and Editor-in-Chief of the Hong Kong Rule of Law Initiative (HKROLIN), entitled:

• “Remedial Duty and Defiance: The Constitutional Stakes of Hong Kong’s Expired Suspended Declaration on Same-Sex Partnerships.”

The article analyses the constitutional repercussions of Sham Tsz Kit v Secretary for Justice [2023], after the Court of Final Appeal’s suspended declaration on same-sex partnerships expired on 27 October 2025. Although the Government introduced a bill during the suspension period, it was rejected by the Legislative Council, and no executive follow-up took place thereafter.

Dr Poon challenges recent claims that there are “no consequences” or that the Government has “nothing more” it can do. He argues these views reflect a lingering colonial-era mindset of legislative supremacy—a model that no longer governs Hong Kong’s post-handover constitutional order.

“That logic no longer applies,” Dr Poon writes. “After 1997, the Basic Law—not the Legislature—reigns supreme.”

Under Article 4 of the Basic Law, all three branches of government—including the Chief Executive, the Legislature, and the Judiciary—bear a constitutional duty to safeguard and implement fundamental rights. Reaffirmed in Sham, this principle means the Court must not only declare rights but ensure their effective realisation.

While the CFA cannot legislate on LegCo’s behalf where a wholly new ordinance is required—unlike W v Registrar of Marriages (2013), which required only textual amendment—it retains both the authority and the constitutional responsibility to ensure its orders are obeyed.

Post-expiry enforcement options include:

• • mandamus directing the Chief Executive to exercise his constitutional powers to secure legislative cooperation;
  • contempt proceedings for deliberate non-compliance with a final court order; and
  • referrals for misconduct in public office in cases of grave, wilful dereliction of duty.

Dr Poon emphasises that the Chief Executive holds clear constitutional tools to overcome legislative resistance—and is duty-bound to use them.

• • “Defiance of a final court order is not an option; nor is continued deprivation of rights,” Dr Poon said.
  • “Every public official swears to uphold the Basic Law. As the Hong Kong 47 case shows, constitutional breaches are not symbolic—they carry legal consequences.”

ICONnect is the official academic blog of the International Journal of Constitutional Law (I·CON), jointly published by Oxford University Press and the New York University School of Law. It serves as a global platform for rigorous public-law scholarship and analysis.

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