Kong Yunming v Director of Social Welfare: Implications for Law and Policy on Social Welfare

Abstract

Kong Yunming v Director of Social Welfare is a landmark victory for the protection of constitutional social welfare right in Hong Kong. In this unanimous decision of the Court of Final Appeal, the seven-year residence requirement for Comprehensive Social Security Assistance (CSSA) imposed by the Department of Social Welfare was ruled unconstitutional. This case shows a shift in the approach of the court in the adjudication of social welfare right under the Basic Law of Hong Kong. The Court is more willing to question the justification provided by the government on public policy and resource allocation and requires the government to take seriously its constitutional duty to protect the right to social welfare of the marginalised poor. Nonetheless, the decision is very controversial not only because of the recent Mainland China-Hong Kong social tension, but also because of the potential wide implications of the case on future public expenditure on CSSA and the validity of similar social welfare benefits with the seven-year residence requirement. It also opens to question the legitimacy of the court in overruling government policy choices on resource allocation. This article seeks to provide some clarifications of the legal issues involved and to make a preliminary analysis of the implications of the case on future law and policy for social welfare.

Keywords: economic and social rights; right to social welfare; judicial review; proportionality; retrogressive measures