自由講場 今日: 151|主題: 1323938

173. Even though I am of the view that Madam Kong should succeed without having to rely on the International Covenant on Economic, Social and Cultural Rights (“the ICESCR”), I propose to deal with this covenant, we having received full argument on it.

174. In 2003, which is the year before the residence requirement for the receipt of CSSA was raised from one year to 7 years, the Hong Kong Government submitted a report to the United Nations’ Committee on Economic Social and Cultural Rights (“the CESCR”) in which this was said:

“It is true that there is no single law – corresponding to the Hong Kong Bill of Rights Ordinance in relation to the ICCPR that incorporates the ICESCR into Hong Kong’s domestic legal order. However, ICESCR provisions are incorporated into our domestic law through several Articles of the Basic Law (for example Articles 27, 36, 37 137, 144 and 149), and through provisions in over 50 Ordinances. Those laws were listed in Annex 3 to the initial report, and are updated at Annex 2A of the present report. We consider that specific measures of this kind more effectively protect Covenant rights than would the mere re-iteration in domestic law of the Covenant provisions themselves.”

The Hong Kong Government said in Annex 2A of that report that art. 39 of the Basic Law is the constitutional guarantee for art. 2 of the ICESCR and that arts 36 and 145 of the Basic Law are the constitutional guarantees for art. 9 of the ICESCR.

175. Article 39 of the Basic Law reads:

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions for the preceding paragraph of this Article.”

It will be observed that this article, too, speaks of residents and not only of permanent residents.

176. Turning to the two articles of the ICESCR which the Hong Kong Government told the CESCR are constitutionally guaranteed in Hong Kong, art. 2 reads:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

And art. 9 reads:

“The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”