Social justice and social rights in Hong Kong: recent judicial review developments and proposal for legislative change

Abstract

Despite Hong Kong today enjoys a very high level of economic development with per capita GDP of HK$266,026 in 2011, poverty amidst plenty is a serious concern and continues to worsen in recent years. The Gini Coefficient of Hong Kong in 2011 is at 0.537, which has exceeded the benchmark for a harmonious society at 0.4. Poverty issues in Hong Kong are multi-facet. It is hard to say that Hong Kong poor is facing absolute poverty similar to those in developing countries, but relative poverty in urban area plagues different groups of underprivileged in society, including the elderly, working poor, new migrants and ethnic minorities. Poverty gap increases social disharmony and conflicts. There seems to be a general negative sentiment towards the rich, especially land owners and property developers. We also see an increasing polarization and stigmatization of Mainland immigrants in Hong Kong. The factors that contribute to the widening poverty gap is multi-dimensional, including the economic-political system of Hong Kong, transformation to a knowledge-based society, demographic change, globalization, and more fundamentally, the question of whether limited government redistribution in a free market system has contributed to the concentration of wealth at the top strata of the society at the expense of the poor. Because of the limitation of government resources and competing demands of needs, the court room has often been the battleground for settling difficult issues concerning welfare distribution and socio-economic policies. This paper is a study of the recent developments in judicial review cases that concern social rights and social justice. It will evaluate the approaches of the court in dealing with legal questions that concern the provision of welfare, entitlement to affordable housing, and distribution of hospital resources, etc. It will discus the success of the court in upholding social rights in light of the political context of Hong Kong. Based on the respective roles of different branches of the government, the paper will make some suggestions on the feasibility of the use of law to tackle poverty and protect social rights in Hong Kong.