Hong Kong Intelligence Report #160 政治問題司法自制原則的積極意義
- Ryota Nakanishi
- Aug 15
- 11 min read
Open-source intelligence (OSINT)

🔻 IMPORTANT 【重要】政治問題司法自制原則
▪️ 本篇繼續就政府議案《同性伴侶關係登記條例草案》以及終審法院《岑子杰訴律政司司長》(Sham Tsz Kit v Secretary for Justice;FACV 14/2022; “Sham Tsz Kit Case” of September 5, 2023)提出概括性的見解。重新閱讀律政司的文件,該案還是具有嚴重的爭議性所在。1)具有高度政治性的問題,涉及動搖統治行為的議題,司法則不應該審判了斷。此案,沒依據acte de gouvernement或political question,即統治行為論,而直接命令行政,立法機構進行立法(雖港府在威脅行政會議成員保駕護航投票也是個問題,但完全缺乏民意基礎的司法強制立法機關投票也是個極大的結構性問題)。這缺乏上述司法自制原則。2)在媒體文章中,值得一提的是江樂士的。在公眾諮詢結束後,江樂士隨即整理出了至今幾乎在境內流傳的諸論點(題為同性伴侶關係登記條例應由立法會議員投票決定),其中內容涉及acte de gouvernement /political question的司法自制原則。如:
終審法院創始成員、前任法官烈顯倫已闡明立場,直指岑子傑案過半數法官的聲明“漏洞百出”,強調此說充其量只是某些法官“(以微弱多數)就《人權法案》第14條的法律效力表達意見,僅此而已,並未作出任何命令”。換言之,終審法院並未強制政府執行命令,而政府承諾尊重終院,遂令政府陷入兩難境地。烈顯倫進一步闡明:“政府行政部門絕非終審法院的附庸”,這一點不容爭議。若香港的家庭法律架構需作出改變,責任應由“行政及立法機關承擔,而非司法機關。”
市民亦知道港府沒有接受這個‘法官意見’之說。甚至,可以預知這個‘法官意見’之說只會淪為最後讓有關法官面對公眾壓力自我解脫的藉口。有趣的扭轉是,統治行為論/政治問題司法自制原則(acte de gouvernement /political question)在香港反而可以具有積極維護國家主權和社會安寧的意義。但,在國安審判的存在之下,這個原則的應用空間還是有限或淡化的。誠然,在國安法時代下,依照個別案件的社會爭議性秉持統治行為論/政治問題司法自制原則來避免無必要的社會矛盾反彈是有必要的。烈顯倫和江樂士的意思其實是在批判缺乏政治問題司法自制原則。3)市民最好至少直接閱讀律政司的文件,其中岑子傑得直的問題部分如下:
關於問題 2
7. 終審法院以大多數(Ribeiro PJ 和 Fok PJ 聯合作出判決,Keane NPJ 表示贊同)同意同性伴侶有需要進入另一個框架,使他們的關係得到法律承認,以滿足基本的社會要求,並為他們提供合法感,消除他們認為自己的關係不值得承認的低人一等的感覺。同性伴侶缺乏獲得異性伴侶法律承認的途徑,這可能會貶低同性伴侶。因此,缺乏承認上訴人同性關係的法律框架,構成了對上訴人在《人權法案》第 14 條下的私隱權的干預(第142-144 段)。
8. 終審法院(以大多數票)駁回政府的論據,即由於特別法的運作,設立替代法律架構被排除在外,或設立替代法律架構會破壞婚姻制度的獨特地位,因為上訴人的案件並非要賦予已婚夫婦所享有的相同權利。相反,上訴人的投訴涉及未能提供「法律承認同性伴侶關係的替代方法」(第 151 段)。終審法院(以大多數票)亦駁回上訴人的論點,即不能以《人權法案》14 為依據,認為上訴人有積極責任提供另一方案,在法律上承認同性伴侶關係(第 172 段)。
9. 終審法院(大多數)接納政府享有靈活的酌情決定權,可決定與法律承認計劃有關的權利和義務的內容。這包括必要的 「核心 」權利,以建立一個法律框架,承認和界定同性關係的主要事件,為這種關係提供有效的法律保護(第180-181段)。
這就是在不改有關議題的基礎法律定義下,實際改變其運作,即通過所謂替代框架變相改變其制度和定義的實質,偷換定義和制度。就這個案件而言,明明是變相法律承認。上述引用部分不似意見,而是立法命令。建立法理框架是立法之意。簡言之,它的手段是所謂the lex specialis (general provision that might apply to any case must give way to a specific provision which applies to the case at hand) ,即特別法原則(可能適用於任何案件的一般規定,必須讓位于適用於當前案件的特定規定)。他們先利用特別法原則推開了基本法,換言之中國憲法也都被特別法原則推開了。從這個意義上,他們沒有直接觸碰秉持異性婚姻政策的基本法及其法律權威來源,中國憲法。這給予該判決形式邏輯矛盾的印象。換言之,他們以特別法原則完全可以漠視國家政策和整個中國憲法,以避免人大釋法。這個就是此案想要建立的和平演變技術。基於這個論點,筆者還是反對,也指出立法會恐怕最後還是照樣先批評,後投票贊成。吳秋北對曾國衛私底下威脅的揭露(2025年8月1日報導,吳秋北稱受曾國衞威脅須保駕護航其後承認表述過火:當局指專注做好工作)具有公眾利益。這不僅揭露了行政會議成員受港府威脅被迫保駕護航盲從投票,也是為吳秋北自己面對工聯會內部的反對該案的集體壓力做自我解脫的公關。其實,吳秋北幫所有行政會議成員解脫了。這是個政治行為。這次案件對市民的意義是,難得一見,首次凸顯了立法機關的獨立性和理想所在,極為有限地讓‘民意代表’與舉手機器隔開了。因此,此案可以視為香港改革/改善的一環。撥雲見日,市民看到了新民黨是機械化的港府保皇黨,行政會議成員的特權資本家們(還沒到壟斷資本家)害怕被開除出去(他們的保駕護航同時體現了該案確實合乎既得利益勢力的政治利益)。有威脅根本不是盲撐的正當理由。照理想,新民黨和行政會議成員都應該在沒有保駕護航的威脅之外自由投票的。
總之,終審法院明顯以特別法原則凌駕和推開基本法,中國憲法,以及國策的新技術恐淪為和平演變的突破口和之後常用手段。這才是重點。
▪️ This article provides a general overview of the government bill titled "Registration of Same-sex Partnerships Bill" and the final judgment of the Court of Final Appeal in the case of "Sham Tsz Kit v Secretary for Justice" (Sham Tsz Kit v Secretary for Justice; FACV 14/2022; "Sham Tsz Kit Case" of September 5, 2023). A thorough review of the Department of Justice's documents reveals that this case continues to be a subject of considerable contention. 1) The matter at hand pertains to a highly political issue that challenges the authority of the executive branch. It is the opinion of the author of this study that the judiciary should not adjudicate such matters. In this particular case, there was no basis in the doctrine of "acte de gouvernement" or "political question," i.e., the theory of executive acts. Yet, the court directly ordered the executive and legislative branches to enact legislation. Though the Hong Kong government's threat to order Executive Council members' votes is also problematic, the judicial compulsion of the legislative branch to vote without any popular mandate is an extremely serious structural issue. This approach does not align with the established principle of judicial self-restraint. 2) In media articles, it is noteworthy to mention the perspective of Grenville Cross. Following the conclusion of the public consultation, Grenville Cross expeditiously compiled the arguments that have since disseminated extensively within the region (titled "The Registration of Same-Sex Partner Relationships Should Be Decided by Legislative Council Members"). These arguments address the judicial self-restraint principle regarding "acte de gouvernement" or "political questions." To illustrate this point, consider the following example:
The founding member of the Court of Final Appeal and former judge, Henry Denis LITTON, has explicitly articulated his stance, directly highlighting the perceived deficiencies in the majority opinion of the Sham Tsz Kit case. He underscored that this statement, at best, represented the views of a narrow majority of judges on the legal implications of Article 14 of the Bill of Rights, without issuing any directives. In essence, the Court of Final Appeal did not mandate that the government enforce the order. Consequently, the government's obligation to respect the Court of Final Appeal engendered a predicament for the government. Henry Denis LITTON further elaborated on this point: It is evident that the executive branch of the government is not subordinate to the Court of Final Appeal, a point that is indisputable. In the event that modifications are deemed necessary to the legal framework governing family law in Hong Kong, the onus falls upon the "executive and legislative branches, not the judicial branch," to assume responsibility.
The public is also cognizant of the fact that the Hong Kong government has not formally acknowledged this as "judicial opinion." It is foreseeable that this "judicial opinion" will function merely as a pretext for relevant judges to exonerate themselves from responsibility in the face of public pressure. The doctrine of actus de gouvernement/political question, frequently employed to constrain judicial review of administrative decisions, paradoxically can play a beneficial role in safeguarding national sovereignty and social stability in Hong Kong. Nevertheless, under the National Security Law, the applicability of this principle remains constrained or diminished. In the current era of the National Security Law, it is imperative to adhere to the doctrine of political questions/judicial restraint in individual cases that involve significant social controversy to avert unnecessary social backlash. The objective of Henry Denis LITTON and Grenville Cross is to critique the absence of the judicial restraint principle in political matters. 3) It is recommended that citizens peruse the documents from the Department of Justice directly. The section of the document that is pertinent to the case of Sham Tsz-kit is as follows:
On Question 2
7. By a majority (Ribeiro PJ and Fok PJ delivered a joint judgment with which Keane NPJ agreed), CFA accepted the existence of the need experienced by same-sex couples for access to an alternative framework conferring legal recognition of their relationship in order to meet basic social requirements and to provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition. The lack of means to acquire the legal recognition available to heterosexual couples was potentially demeaning of same-sex couples. Accordingly, the absence of legal framework for recognition of the Appellant’s same-sex relationship constituted an interference with his to privacy rights under BOR14 (paras 142-144).
8. CFA (by a majority) rejected Government’s argument that the establishment of alternative legal framework was excluded by operation of lex specialis or that the establishment would undermine the unique status of the institution of marriage as it was not the Appellant’s case to confer the same rights as those enjoyed by married couples. Instead, the Appellant’s complaint concerned a failure to provide “an alternative means of legal recognition of same-sex partnership” (para 151). CFA (by a majority) also rejected the arguments that no positive obligation to provide an alternative scheme for the legal recognition of a same-sex couple’s relationship can be based on BOR14 (para. 172)
9. CFA (by a majority) accepted that the Government enjoyed a flexible margin of discretion in deciding the content of the rights and obligations to be associated with the scheme of legal recognition to be devised. This included a “core” of rights necessary for establishing a legal framework for recognising and defining the main incidents of a same-sex relationship to give effective legal protection to that relationship (paras 180-181).
This is achieved by modifying the operational framework of the relevant legal definitions without altering their underlying legal definitions. Consequently, the system and definitions are effectively changed through an alternative framework, whereby definitions and systems are substituted. In this particular instance, it is evident that the aforementioned recognition is a de facto legal acknowledgment. It is evident that the aforementioned sections do not manifest as mere opinions; rather, they are akin to legislative mandates. The CFA seeks to establish a legal framework. In summary, the CFA employs the "lex specialis" principle (a general provision that may apply to any case must yield to a specific provision applicable to the case at hand). The initial invocation of the principle of "lex specialis" principle resulted in the setting aside of the Basic Law, thereby effectively setting aside the Chinese Constitution through the application of the specific law. From this perspective, a direct challenge to the Basic Law, which upholds the policy of heterosexual marriage and its legal authority derived from the Constitution of China, was not made. This phenomenon engenders an impression of a logical contradiction in the ruling. In essence, this principle enables the circumvention of national policy and the entire Constitution of China through the application of lex specialis, thereby avoiding the interpretation of the law by the National People's Congress. This is the "peaceful evolution" technique to which this case is oriented. The author's position remains in opposition to the aforementioned technique, and they have indicated that the Legislative Council will likely exhibit a similar sequence of actions, commencing with criticism and concluding with approval. Ng Chau-pei's disclosure of private threats from Erick Tsang (reported on August 1, 2025, where Ng Chau-pei claimed that Erick Tsang threatened him to approve the bill, later admitting that his statement was excessive: the authorities stated that they would focus on doing their work) serves the public interest. This not only exposes how Executive Council members were coerced by the Hong Kong government to blindly follow orders and vote in favor, but also serves as public relations for Ng Chau-pei to alleviate internal opposition within the Federation of Trade Unions against the case. Indeed, Ng Chau-pei has exonerated all members of the Executive Council. This act can be considered a political one. The case is significant for the public because it is an uncommon example of the independence and ideals of the legislative body being highlighted, albeit to a very limited extent. This highlights a separation between "representatives of public opinion" and mere voting machines. Consequently, this case can be regarded as a component of Hong Kong's ongoing(?) reform and enhancement process. Recent developments have revealed that the New People's Party is ‘mechanically’ a pro-government bureaucratic faction within the Hong Kong establishment, comprising mechanized entities. This revelation has prompted a reaction from the privileged capitalists within the Executive Council, who, though not yet at the level of monopolistic capitalists, fear being expelled. This fear serves as a testament to the alignment of their interests with those of entrenched interests, as their protection demonstrates. The prospect of expulsion does not constitute a legitimate basis for uncritical support. In an ideal scenario, members of the New People's Party and Executive Council would be able to exercise their democratic right to vote without the looming possibility of expulsion.
In summary, the Court of Final Appeal has clearly employed the principle of special laws to override and set aside the Basic Law, the Constitution of China, and national policies. The advent of new political technologies has the potential to serve as a pivotal catalyst for peaceful evolution, becoming a pervasive instrument in the process. This assertion encapsulates the fundamental issue under consideration.
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