-18discretion. The guidelines for the exercise of that discretion laid down by the
Director are set out later in this judgment.42
G.
47.
The Government’s purpose in adopting the seven-year rule
Turning to the next stage of the analysis, it is necessary to ask
whether the seven-year restriction on the Article 36 right pursues a legitimate
societal aim and, having identified that aim, to ask whether the restriction is
rationally connected with the attainment of that end.
48.
The restriction was recommended by the Task Force on Population
Policy (“the Task Force”) chaired by the then Chief Secretary, Mr Donald
Tsang, in its Report issued on 26 February 2003.43
49.
It is worthwhile emphasising that a purpose relied on to justify a
restriction on a constitutional right must be a legitimate societal aim. In other
words, it has to be an aim which furthers the legitimate interests of society. The
Government might simply state that it is cutting expenditure with the aim of
“saving money”. But saving money would not in itself be a legitimate aim.
The purpose and effect of the cut in expenditure would have to be taken into
account. If the cut in expenditure meant that the Government was abdicating an
important responsibility which the government ought to discharge in the public
interest, the saving of money by that means would not be a legitimate aim. To
take an extreme example, it would not be a legitimate aim to cut expenditure by
say, halving the number of ambulances or fire engines, thereby endangering
public safety. In the present case, the Government is not saying that its aim is
simply to save money. It is saying that the restriction was introduced to save
42
In Section L.4 below.
43
Mr Cheung’s Affirmation, §45. It was endorsed by Finance Committee on 27 June 2003:
Ms Choy’s Affirmation, §39.