Adjudicating social welfare rights in Hong Kong

Abstract

Since the inception of the Basic Law of the Hong Kong Special Administrative Region in 1997, the Hong Kong courts have not been short of opportunities to tackle difficult issues concerning civil and political rights. In relation to socioeconomic rights, the common conception that these were aspirational and nonjusticiable rights had made them modest grounds of progress until recent years. However, the Hong Kong Court of First Instance in two recent cases has adjudicated on the constitutional protection of social welfare rights in Hong Kong. These two cases demonstrated the Court’s approach in adjudicating cases that concern social and economic policies, particularly, when the decisions affect the distribution of scarce public expenditure. The intensity of review was at issue, and the Court’s view of the justification provided by the government accounts for the difference in results of the two cases. It can be seen clearly that the Court was greatly influenced by the political and economic implications of their decisions. The author argues that the Court’s internal restraints on adjudicating socioeconomic rights are misplaced, and that there is room for a more principled approach to dealing with social rights, especially in relation to the decision-making process by the government, while respecting the freedom of the democratic government to determine its own policies.