居港7年違憲裁決之後

在上一篇，有讀者問我會不會評論申領綜援要居港7年規定違憲的裁決，我本來不打算講，因為這並非自己一向留意開的課題，也涉及社會福利政策及社會資源重新分配的理念，這種題目適合山中寫多過我寫。今天又收到陽劍文（Kimmon）的留言及他提供的連結，有關他在蘋果日報網上論壇的一篇文章，加上近日對終院裁決的輿論反應，譬如「反對綜援批新移民」群組，故此今晚花兩小時來看判辭一次，寫點零碎的看法。

陽劍文兄的留言這樣講：

Kimmon2013年12月19日 下午4:10

另一延伸問題是，現在又有一窩蜂的人講收回單程證審批權。

之前沒有理會過單程證審批權是甚麼一回事，
讀過山中兄和標少的討論，再加思考，才知道是一件瘋事。
看完一篇又一篇的謬論，看不過眼，昨晚更漏夜打稿給蘋果：http://hk.apple.nextmedia.com/realtime/news/20131219/52007309
可以說是寫得很含蓄，但心裡已經很激動。
人云亦云，似乎講得通的就寫出來，少許資料搜集也不做。

我以前跟山中討論過那些要求香港政府取回單程證審批權的人的愚昧，不打算再重覆。很不客氣講，我無興趣跟蠢人講道理。我們以前講香港可以根據《基本法》跟大陸商討每天150人這人數，劉兆佳今天也講類似説話，在孔允明案判辭第57段，也很明確講出這也是政府對每天人數因時制宜的立埸：

57. The OWP scheme has become “the single most important immigration policy that shapes Hong Kong’s demographic growth and composition”, accounting for some 93% of population growth from 1997 to 2001.[53] Applying the increased daily quota of 150,[54] about 55,000 Mainland immigrants are admitted each year. The Task Force Report suggested that some 168,000 persons were in the queue waiting for a OWP.[55] The Government has been content to maintain that rate of inflow. In a press release issued upon publication of the Task Force Report on 26 March 2003, the then Chief Secretary stated:

“We respect the right of family reunion and the Right of Abode conferred by the Basic Law, and we have concluded that the present daily allocation of 60 within the 150 quota for children with right of abode in Hong Kong is appropriate. ... For the time being, the total daily quota of 150 will remain unchanged. The SAR Government will liaise closely with the Mainland authorities with regard to the numbers and the allocation among the categories. If there is evidence that the demand falls, we will discuss with the Mainland authorities to reduce the quota.”

 與其盲目，不如切實看一下資料。

很多人可能不清楚這判決的主要理據，7年要求被裁定違憲主要是因為1997年7月1日《基本法》生效的時候，原本申請綜援是只需1年居港的要求，在2004年改為7年，才引致法庭干預。法庭申明政府有權改變政策，但法庭會因應其相稱性作考慮，第36段這樣講：

36. Social welfare rights which qualify as rights protected by Article 36 are subject to modification pursuant to policies generated by the Government in accordance with Article 145, as that Article plainly envisages. The importance of a right being recognized as a social welfare right protected by Article 36 is that any restriction subsequently placed on that right is subject to constitutional review by the Courts on the basis of a proportionality analysis (as Lord Pannick QC, appearing for the Director[27] accepted). The Government was therefore entitled to change its policy and to impose the seven-year requirement in place of the one-year requirement. But it is also clear that such modification is subject to constitutional review.

法庭不會輕易干預政府的社會政策，除非政府設限嚴重缺乏合理基礎：

43. Accordingly, in my view, insofar as the disputed restriction in the present case is rationally connected to a legitimate societal aim espoused by the Government, the restriction will only be held to be disproportionate if it is manifestly without reasonable foundation. I turn then to apply these principles to the facts of the present case.

值得留意的是，這件案是為了7年設限提出的上訴，1年的設限未必不違憲，只不過那不是在本案提出的理據。如果有别的人以此提出覆核，後果未可料，看下包致金在第186段打開了這扇門：

186. The one-year residence requirement was part of the previous system on the basis of which art. 145 of the Basic Law required the Government to formulate its policies for the development and improvement of social welfare in the light of economic conditions and social needs. We have not been asked to hold that the residence requirement of one year had also been unconstitutional, and I see no reason to do so.  ...

本案的判決會對其他福利的爭取又會否一刀切呢？可否因應這裁決來爭取其他福利呢？第23段露了端倪，簡單講一單還一單，每一種福利設限是否違憲不能一概而論，不要自行演繹，把它無限擴大：

23. As is true of many constitutional provisions, Article 36 is in very broad terms, conferring a constitutional right on Hong Kong residents “to social welfare in accordance with law”. Apart from the CSSA scheme, which[17] forms the mainstay of social security in Hong Kong, the SWD provides a wide range of services. They include family and children services; services for the elderly; rehabilitation and medical social services; services for offenders; services for community development; and services for young people.[18] There is obviously room for argument as to whether all or only some part of those services come, as a matter of law, within the concept of “social welfare” for the purposes of founding a constitutional right under Article 36. In my view, however, since the CSSA scheme aims to provide a welfare benefit addressing basic, “safety net” needs – a fundamental function of any social security system, such benefit is a clear case coming within the Article 36 concept of “social welfare”. It was not suggested otherwise. The question whether any other benefits and services provided by the SWD also fit within that concept must be left open. Other facets of the system operated by the SWD might well give rise to different considerations and it should not be assumed that what is said in this judgment can necessarily be extrapolated for general application across the spectrum of services provided.

因為只花了兩小時速讀本身是我不熟悉的課題，紕漏難免，希望讀者指正。