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Article: Does it matter if restrictions on the right to social welfare in Hong Kong are prescribed by law or policy?

TitleDoes it matter if restrictions on the right to social welfare in Hong Kong are prescribed by law or policy?
Authors
KeywordsHong Kong
Social welfare
Restrictions on right
Prescribed by law
Issue Date2014
PublisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/
Citation
Hong Kong Law Journal, 2014, v. 44 n. 1, p. 25-40 How to Cite?
AbstractThe constitutional right to social welfare in Hong Kong has always been implemented by administrative rules and policies. The seven-year residency requirement was a policy ordered by the Chief Executive-in-Council in 2003. As argued in this article, the requirement was a restriction on an enjoyed right that was not “prescribed by law” because it was not made or derived from a public law-making process. Under Art 39 of the Basic Law, the government in a judicial review case would not be allowed to justify the restriction with reference to rationality and proportionality arguments. In Kong Yunming v The Director Social Welfare, the Court of Final Appeal did not address Art 39 and implicitly accepted that the restriction was indeed prescribed by law. With reference to Hong Kong and international jurisprudence, it is argued that the Court overlooked the transparency and accountability values within the concept prescribed by law.
Persistent Identifierhttp://hdl.handle.net/10722/202964
ISSN
2015 Impact Factor: 0.215
2015 SCImago Journal Rankings: 0.101
SSRN
ISI Accession Number ID

 

DC FieldValueLanguage
dc.contributor.authorYoung, SNM-
dc.date.accessioned2014-09-19T11:03:50Z-
dc.date.available2014-09-19T11:03:50Z-
dc.date.issued2014-
dc.identifier.citationHong Kong Law Journal, 2014, v. 44 n. 1, p. 25-40-
dc.identifier.issn0378-0600-
dc.identifier.urihttp://hdl.handle.net/10722/202964-
dc.description.abstractThe constitutional right to social welfare in Hong Kong has always been implemented by administrative rules and policies. The seven-year residency requirement was a policy ordered by the Chief Executive-in-Council in 2003. As argued in this article, the requirement was a restriction on an enjoyed right that was not “prescribed by law” because it was not made or derived from a public law-making process. Under Art 39 of the Basic Law, the government in a judicial review case would not be allowed to justify the restriction with reference to rationality and proportionality arguments. In Kong Yunming v The Director Social Welfare, the Court of Final Appeal did not address Art 39 and implicitly accepted that the restriction was indeed prescribed by law. With reference to Hong Kong and international jurisprudence, it is argued that the Court overlooked the transparency and accountability values within the concept prescribed by law.-
dc.languageeng-
dc.publisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/-
dc.relation.ispartofHong Kong Law Journal-
dc.subjectHong Kong-
dc.subjectSocial welfare-
dc.subjectRestrictions on right-
dc.subjectPrescribed by law-
dc.titleDoes it matter if restrictions on the right to social welfare in Hong Kong are prescribed by law or policy?-
dc.typeArticle-
dc.identifier.emailYoung, SNM: snmyoung@hku.hk-
dc.identifier.authorityYoung, SNM=rp01275-
dc.identifier.scopuseid_2-s2.0-84926356702-
dc.identifier.hkuros237937-
dc.identifier.volume44-
dc.identifier.issue1-
dc.identifier.spage25-
dc.identifier.epage40-
dc.identifier.isiWOS:000336881500003-
dc.publisher.placeHong Kong-
dc.identifier.ssrn2655647-
dc.identifier.hkulrp2015/030-

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