-11from its other cost-bearing social obligations and functions. 22
I would
respectfully agree with Stock VP in rejecting the argument so put.
31.
His Lordship went on to ask rhetorically: “What then of Article
36?”23 His answer was that it was “... strictly speaking, not necessary for the
purpose of the instant exercise to decide what article 36 does mean. It suffices,
for the present purpose, to conclude, as I do, that it does not bear the meaning
for which the applicant contends.”24 His Lordship, however, added:
“...But one might nevertheless venture to suggest what article 36 read with article 145
envisage. With the previous social welfare system as a base, they envisage the
continuous formulation and promulgation of policy in the realm of social welfare for
the benefit of Hong Kong residents – as opposed to visitors – in the light of such
economic conditions and social needs as prevail from time to time, with the objective
of developing and improving the system, it being manifestly implicit that that
objective can only be met if the system be nurtured and sustained for the meaningful
benefit of future generations as well as the present. In order to meet these
requirements and in any event inherent in any such system, the right to social welfare
carries with it qualifying conditions. Hong Kong residents are to enjoy that right, so
long as they meet the qualifying conditions, for the right itself includes the conditions.
The conditions must be lawful, so that conditions that are discriminatory are not
permissible.”25
32.
With respect, I do not think that an adequate approach. Its lays the
emphasis entirely on Article 145 and deprives Article 36 of any meaningful
effect. It focuses on the Administration’s role in formulating social welfare
policies, regarding it as free to define the eligibility and other conditions for any
particular benefit, provided only that such conditions are not discriminatory.
But that allows the equality rights entirely to eclipse the welfare right. The
equality guarantees derive from Article 25 of the Basic Law and Article 22 of
the Bill of Rights. To say that the Administration cannot impose discriminatory
eligibility conditions gives effect to those guarantees. But it fails to attribute
22
Court of Appeal §§61-65.
23
Court of Appeal §68.
24
Court of Appeal §72.
25
Ibid.