Beyond Lex Specialis: Rethinking Constitutional Conflicts in Sham Tsz Kit v Secretary for Justice

Abstract

On September 5, 2023, Hong Kong’s Court of Final Appeal ruled in Sham Tsz Kit v Secretary for Justice that the legislature must create an alternative legal framework within two years to allow same-sex couples to manage their civil affairs. However, the court declined to recognise same-sex marriage, unanimously holding that the gendered marriage provisions in the constitutional documents, as a lex specialis, override broader guarantees of privacy and equality. While lex specialis is traditionally used to resolve normative conflicts, its application in human rights contexts remains contested. This article argues that the court’s reliance on lex specialis is theoretically flawed and inconsistent with international human rights jurisprudence. Instead, a proportionality test should be adopted to adjudicate conflicts between constitutional rights. Through a close reading of Sham, this article contributes to broader debates on constitutional interpretation and LGBTQ+ rights in Hong Kong.