Author: Kong, Karen

Source: International Journal of Constitutional Law, Volume 10, Number 2, 30 March 2012 , pp. 588-599(12)

Publisher: Oxford University Press

Abstract:

Since the inception of the Basic Law of the Hong Kong Special Administrative Region in 1997, the Hong Kong courts have not been short of opportunities to tackle difficult issues concerning civil and political rights. In relation to socioeconomic rights, the common conception that these were aspirational and nonjusticiable rights had made them modest grounds of progress until recent years. However, the Hong Kong Court of First Instance in two recent cases has adjudicated on the constitutional protection of social welfare rights in Hong Kong.

These two cases demonstrated the Courts approach in adjudicating cases that concern social and economic policies, particularly, when the decisions affect the distribution of scarce public expenditure. The intensity of review was at issue, and the Courts view of the justification provided by the government accounts for the difference in results of the two cases. It can be seen clearly that the Court was greatly influenced by the political and economic implications of their decisions. The author argues that the Courts internal restraints on adjudicating socioeconomic rights are misplaced, and that there is room for a more principled approach to dealing with social rights, especially in relation to the decision-making process by the government, while respecting the freedom of the democratic government to determine its own policies.

Document Type: Research article

DOI: http://dx.doi.org/10.1093/icon/mor072

Publication date: 2012-03-30

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• Published in association with the New York University School of Law, I"CON is dedicated to international and comparative constitutional law. I"CON has international editorial and advisory boards and an international focus. It examines an array of theoretical and practical issues and offers critical analysis of current issues and debates. In addition, I"CON looks at global trends that carry constitutional implications. It features scholarly articles by international legal scholars, judges, and people from related fields, such as economics, philosophy, and political science.

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