Dingquan Appeal | The Basic Law Protects the Rights of Indigenous Inhabitants Government: Cannot Discriminate Unconstitutional

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Written by: Zhu Dixin

2020-08-11 17:58

The small house policy has been challenged in recent years. The "Cheung Chau Review King" Kwok Cheuk Kin and the social worker Lu Chi Heng have previously filed a judicial review for discriminatory policies, but only partially won the case. The government and Kwok and others disagree with the ruling. At the hearing of the appeal, Yu Ruohai, a senior counsel representing the government, pointed out that Article 40 of the Basic Law stipulates the protection of the rights of indigenous inhabitants, and that the article cannot be accused of being illegal on the basis of "discrimination" alone.

The three parties appealed through video submissions

The original applicants of the case were Kwok Cheuk Kin and Lu Chi Heng, and the respondent was the Director of Lands, Chief Executive in Council and Department of Justice, as well as the Heung Yee Kuk, which was listed as the interested party. All three parties lodged appeals. The lawyers of the three parties Today, he speaks in court through the video system.

The original ruling cannot apply to the government to build a house

When the case was heard in the Court of First Instance, Judge Zhou Jiaming of the High Court ruled that the indigenous residents built small houses on their own land with a "free building license", which was a traditional legal right, but in the form of a private agreement involving government land or land exchange Building a small house is not a traditional legal right. That is to say, the aborigines still enjoy the "right", but they cannot apply to the government for land and housing.

The traditional rights of indigenous inhabitants are protected

Senior Counsel Yu Ruohai, who represents the government, stated that this case involved a number of issues, including the meaning of "legal" and "traditional" in Article 40 of the Basic Law "The lawful traditional rights of indigenous inhabitants of the New Territories are protected by the Hong Kong Special Administrative Region". Yu continued that this provision protects the rights of a certain group of people, and believes that it cannot be judged illegal on the basis of "discrimination" alone.

The constitution also guarantees land contract rights

Yu also pointed out that while considering Article 40, it is also necessary to consider Articles 120 and 122 of the Basic Law, which are provisions that protect the original land lease and all related rights that are recognized and protected by the government. He pointed out that the rights and interests of the indigenous residents to build small houses are derived from the legal traditional rights of the indigenous inhabitants of the New Territories, and the small houses they can build are not limited to free housing licenses, private agreements, or land exchanges. Build small houses.

Yu pointed out that the original residents had been approved to build houses in 1898

The trial judge pointed out that before the British leased the New Territories in 1898, villagers had no right to buy land and build houses by paying land rent or land tax. Therefore, the "Private Treaty Grant" had no traceable history. But Yu believes that according to the expert's report, the original inhabitants had been granted land to build houses before 1898.

Case No.: CACV234, 317, 319/2019

[Ding right review case] Ding right belongs to traditional rights but the policy involves unconstitutional violations. Guo Zhuojian partially won the case

[Ding Quan Review Case. Interpretation of the verdict] Although Ding Quan is legal, the purpose of building a house should be for his own use

[Ding Quan Review Case] ​​Whether the 11 original residents were convicted of “arbitrage” is still pending appeal

Court of Appeal for Judicial Review of Small House Policy