A stroke of genius in Kong Yunming

Abstract

When Kong Yunming was decided by the lower courts, it neither occurred to the Court of First Instance nor the Court of Appeal that Art 36 of the Basic Law could be argued to imply that the “right to social welfare” conferred therein on Hong Kong residents can be “concretised” to mean the social welfare benefits that Hong Kong residents enjoyed immediately before the 1997 handover in accordance with the laws or policies prevailing at that time. The “stroke of genius” in the Court of Final Appeal’s decision was to define precisely the substantive content and scope of the social welfare right protected by Art 36, at least as far as social security in the form of cash assistance for the needy such as the Comprehensive Social Security Assistance scheme was concerned. This was achieved by reading Art 36 and Art 145 of the Basic Law as a whole, so as to import from Art 145 into Art 36 the level of social welfare provisions as they existed immediately before the 1997 handover. This comment will focus on this adoption of the level or content of social welfare rights as of 1997 as the baseline for the protection of social welfare rights under the Basic Law, and assess it by comparing it with the approach adopted by the lower courts in this case, and with overseas jurisprudence on the constitutional protection of socio-economic rights.