-12any meaning to the first sentence of Article 36 which states: “Hong Kong
residents shall have the right to social welfare in accordance with law”.
E.3
33.
The content of the Article 36 right
Those words unequivocally declare the Basic Law’s intention to
create an independent head of constitutional protection in the context of social
welfare rights. True it is that Article 36 does not – and obviously cannot –
descend into particulars as to specific welfare benefits or their eligibility and
other conditions. But that is because, like many other constitutional provisions,
Article 36 is intended to operate as a framework provision. Read together with
Article 145, it provides the framework for identifying a constitutionally
protected right to social welfare: Once it is clear that an administrative scheme
such as the CSSA scheme has crystallized a set of accessible and predictable
eligibility rules, those rules may properly be regarded as embodying a right
existing “in accordance with law”, qualifying for Article 36 protection.
34.
Article 145 supports this view. It adopts the previous social welfare
system as the basis for the Administration’s formulation of policies after 1 July
1997 to develop and improve that previous system in the light of economic
conditions and social needs.
Article 145 therefore endorses the rules and
policies established under the previous system and, as discussed above,26 it
implicitly regards them as rules established “in accordance with law” and thus
capable of constituting particular rights protected by Article 36.
35.
The relevant right given constitutional protection by Article 36 in the
present case is the right defined by the eligibility rules for CSSA derived from
the previous system of social welfare and in existence as at 1 July 1997.
Crucially, this means that Article 36 confers constitutional protection on the
26
In Section E.1.