-9facets of the system operated by the SWD might well give rise to different
considerations and it should not be assumed that what is said in this judgment
can necessarily be extrapolated for general application across the spectrum of
services provided.
E.1
24.
“In accordance with law”
Before examining the substantive content of the Article 36 right, one
argument raised on Madam Kong’s behalf should be disposed of. Professor
Chan endeavoured to argue that restricting the pre-existing right to CSSA by
imposing a seven-year residence requirement was constitutionally invalid
because it had been effected administratively rather than by legislation. The
argument was that the new policy was therefore not “in accordance with law”.
25.
I am unable to accept that argument. Article 145 recognizes and
endorses the validity of “the previous social welfare system” which consisted of
a non-statutory system of administrative rules and policies.
Accordingly,
reading Article 36 together with Article 145, the intention of the Basic Law
must be taken to be that such administrative system – consisting of rules that are
accessible, systematically applied and subject to a process of administrative
appeal – is to be treated as a system providing “social welfare in accordance
with law” within the meaning of Article 36.
26.
Indeed, it is difficult to see how the argument helps Madam Kong.
If, contrary to the view just expressed, it were correct to say that a purely
administrative system does not provide “social welfare in accordance with law”,
it would be difficult to see what rights are conferred by Article 36.
27.
A system of social welfare catering for a wide range of clients in a
wide range of different circumstances may well be better served by the