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

Abstract

The 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.