-61conferred by the constitution on all residents, permanent and non-permanent
alike.
172.
As to the Task Force on Population Policy’s reference to the right to
become a principal official, that right depends also, as one can see from art. 61
of the Basic Law, on being a Chinese citizen with no right of abode in any
foreign country. No one has suggested that it would be constitutional to make
that status a condition of receipt of social welfare in Hong Kong.
ICESCR
173.
Even though I am of the view that Madam Kong should succeed
without having to rely on the International Covenant on Economic, Social and
Cultural Rights (“the ICESCR”), I propose to deal with this covenant, we
having received full argument on it.
174.
In 2003, which is the year before the residence requirement for the
receipt of CSSA was raised from one year to 7 years, the Hong Kong
Government submitted a report to the United Nations’ Committee on Economic
Social and Cultural Rights (“the CESCR”) in which this was said:
“It is true that there is no single law – corresponding to the Hong Kong Bill of Rights
Ordinance in relation to the ICCPR that incorporates the ICESCR into Hong Kong’s
domestic legal order. However, ICESCR provisions are incorporated into our
domestic law through several Articles of the Basic Law (for example Articles 27, 36,
37 137, 144 and 149), and through provisions in over 50 Ordinances. Those laws were
listed in Annex 3 to the initial report, and are updated at Annex 2A of the present
report. We consider that specific measures of this kind more effectively protect
Covenant rights than would the mere re-iteration in domestic law of the Covenant
provisions themselves.”
The Hong Kong Government said in Annex 2A of that report that art. 39 of the
Basic Law is the constitutional guarantee for art. 2 of the ICESCR and that
arts 36 and 145 of the Basic Law are the constitutional guarantees for art. 9 of
the ICESCR.
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