Adjudicating social rights in Hong Kong

Abstract

Social rights are guaranteed in Hong Kong under the constitutional document, the Basic Law, as well as the ICESCR as applied to Hong Kong. The adjudication of social rights in the domestic court attracts very different dynamics when compared to civil and political rights. While the court is vigilant in safeguarding civil and political rights of residents, judicial attitude has been more cautious in relation to social rights. Social rights have been classified as aspirational, promotional and are regarded as competing rights. Their delicate balance and advancement is best to be dealt with by the government, as the court positions herself as a secondary agent, overseeing at a distant level and granting high degree of deference and discretion to the administration. The idea of social right as a right enforceable by the court is weak. Recent adjudication in Hong Kong often evolves around the retrogressive measures by the government to limit social benefits which citizens used to enjoy, and the failure by the government to realize social rights on the ground of insufficient resources. This paper will study the concepts of retrogressive measures and the limitation of social rights, in search for a principled approach to tackle the controversies. It will look at the realm of legitimate measures by the government in light of its constitutional duty to advance social rights, and the appropriate level of review by the judiciary on these matters. Reference will be drawn from comparative jurisprudence and the international standards on the protection of social rights.