-7D.
The constitutional provisions relied on by Madam Kong
17.
By Article 36, the Basic Law provides:
“Hong Kong residents shall have the right to social welfare in accordance with law.
The welfare benefits and retirement security of the labour force shall be protected by
law.”
18.
It must be read together with Article 145 of the Basic Law which
states:
“On the basis of the previous social welfare system, the Government of the Hong
Kong Special Administrative Region shall, on its own, formulate policies on the
development and improvement of this system in the light of the economic conditions
and social needs.”
19.
The focus of this appeal is on the right to “social welfare in
accordance with law” as laid down by those two Articles.
20.
The case as argued below centred on the right to equality before the
law and protection against discrimination. Thus, reliance was primarily placed
on Article 25 of the Basic Law which provides that “All Hong Kong residents
shall be equal before the law”; and on Article 22 of the Bill of Rights which
states:
“All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or
15
other opinion, national or social origin, property, birth or other status.”
21.
Professor Johannes Chan SC, who appeared16 for Madam Kong did
not abandon the case based on equality, but submits that the central complaint
involves the Government’s adoption of the seven-year requirement, whether
framed as a contravention of Article 25 or of Article 36. Pursuing the case
15
Reflecting Article 26 of the International Covenant on Civil and Political Rights.
16
With Mr Hectar Pun.