"Cheung Chau Review King" Guo Zhuojian filed in court in 2015, requesting judicial review of "Ding Quan".
After several appeals, the Court of Final Appeal earlier (November 4) issued a verdict in support of the Court of Appeal’s ruling that the small house policy is a "traditional right" protected by Article 40 of the Basic Law, and male indigenous residents can continue to use the "Private Agreement" There are three forms of housing construction, "land exchange" or free building license. However, the "rights" only belong to the "right to apply." The SAR government still has the right to reject applications and modify policies.
After more than 6 years, the case finally came to an end, but the result has caused multiple controversies from the outside world.
For example, although the ruling implied that the small house policy still belongs to the government, many people worry that when the court ruled that the small house is a "traditional right", it may make it harder to loosen the already serious land issue.
In fact, the world is changing, and the so-called legal "traditional rights and interests" have long become unreasonable "aristocratic privileges."
Looking back at the drafting process of Article 40 of the Basic Law, it was clear that there were many oppositions, but in the end it was still retained for political reasons. But today, what is more important than solving the housing problem?
In the early days of drafting the clauses, the drafting committee had disagreements over the rights of "indigenous inhabitants of the New Territories."
(Photo by Chen Zhuohui)
Court of Final Appeal ruled that "Ding rights" constitutional
drafting provisions at the beginning of the stored opposition
The decision of the Dingquan review case in the Court of First Instance of the High Court was a partial victory, that is, the Basic Law protects the rights and interests enjoyed by the indigenous residents under the small house policy, but only the "free housing license" is legal, and the "private agreement" And the "land exchange" application for building small houses on government land is unconstitutional.
However, the Court of Appeal later overturned the decision of the Court of First Instance and held that the definition of "rights" depends on whether the drafters of the 1990 Basic Law regarded the above three measures as "traditional rights". Later, the Court of Final Appeal rejected Guo Zhuojian's appeal for the same reason. .
So, how did this very crucial Article 40 of the Basic Law-"The
lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" are protected by the Hong Kong Special Administrative Region"
, how did it come about?
And how did the drafters understand the so-called "traditional rights and interests"?
According to the "Overview of the Drafting Process of the Basic Law in Hong Kong" compiled by Li Haoran, a member of the Basic Law Promotion and Steering Committee and a PhD in Law from Tsinghua University, the first draft of this provision has been drafted and discussed since 1986. "Basic Rights and Duties" Article 17-"The lawful rights and interests of the indigenous inhabitants of the New Territories shall be protected by the Hong Kong Special Administrative Region."
It is worth noting that the term used at that time was "legal rights and interests" rather than "legitimate traditional rights and interests" nowadays, and the Basic Law Advisory Committee and Drafting Committee also had a heated discussion on the relevant terms.
As early as in the drafting committee meeting in April 1986, some members questioned this provision. They believed that the indigenous inhabitants of the New Territories were also Hong Kong people, so there was no need to distinguish between them. In addition, some members believed that the indigenous inhabitants of the New Territories were The products under the Special Articles of Boundary Sites only have meaning under the rule of British sovereignty.
However, other members believe that "one country, two systems" needs to be implemented under the prerequisite of respecting history, and that "indigenous inhabitants of the New Territories" are historical relics and should be handled with care, at least they should be properly arranged during the transition of sovereignty.
This shows that in the early stages of drafting the provisions, the drafting committees already had differences on the "rights" of "indigenous inhabitants of the New Territories."
Liu Huangfa, the former chairman of the Heung Yee Kuk.
(Profile picture)
The Advisory Committee is afraid that the squires are disgusted and recommends to keep it
but emphasizes that the provisions can be adapted to social changes
The most clear-cut of them was Liu Huangfa, who was then chairman of the Heung Yee Kuk and a member of the Basic Law Drafting Committee.
He once published an article in Ta Kung Pao in September 1986, reiterating that "the Basic Law protects the rights and interests of the indigenous inhabitants of the New Territories and will play a certain role in maintaining the future stability and prosperity of Hong Kong." Documents on the rights and interests of indigenous inhabitants are included in the appendix of the Basic Law, including land, houses, right of abode, freedom of entry and exit, and burial rights, etc., as well as the system of managers who retain clan, family or hall number to manage property.
In December 1986, the Basic Law Drafting Committee organized a seminar on the "Background of the Indigenous Inhabitants of the New Territories and the Rights and Interests Fighted by the Indigenous Inhabitants of the New Territories".
The documentary record of the meeting mentioned that the "New Territories Village Small House Policy", that is, the "Small House Policy", is regarded as a kind of "expedient policy" that the government has failed to fully take care of the improvement of the villagers' living environment.
Some people think that the government launched the "Home Ownership Scheme" with low-interest loans to improve the living environment of urban residents, but failed to cater for the needs of rural residents in the New Territories. Therefore, the small house policy is "unfair" to the indigenous residents of the New Territories. A "price" in exchange for governance, not a "privilege."
In January 1987, the Basic Law Advisory Committee’s "Rights, Freedoms, Welfare and Obligations of Residents and Others" Task Force (hereinafter referred to as the Task Force) held its tenth meeting to discuss the second draft of the article-
"The Legal Rights and Interests of Indigenous Residents of the New Territories" protected "Hong Kong SAR
.
At that time, a member once again proposed that after the return of Hong Kong, Chinese people in Hong Kong should be treated equally and should not be treated as original inhabitants. They also pointed out that it is unreasonable to continue to satisfy the rights and interests of "indigenous inhabitants" because Hong Kong has a small land and a large population.
However, Annex III of the "Sino-British Joint Declaration" stated that the land granted by the British Hong Kong government before June 30, 1997, the lessee can renew the lease until 2047, and the small house land is also protected, plus the Basic Law "The draft of the structure stated that "the legitimate rights and interests of the indigenous inhabitants of the New Territories are protected." Some members were worried that the hastily abolished provisions would make right holders resentful.
Therefore, the
Advisory Committee finally unanimously recommended that the relevant provisions should be retained and rewritten into "the legitimate rights and interests of the indigenous inhabitants of the New Territories shall be respected and regulated in accordance with the laws of the time", emphasizing that the provisions can be amended in response to future social changes, and the right to amend is in the hands of the SAR government. .
The Drafting Committee was worried that if the clause was rashly cancelled, it would be offensive to the rights holders, so it unanimously recommended that the clause be retained.
(Photo by Zhong Weide)
Public Consultation Opposes Most
Drafting Committee Ignores Fairness Issues
According to the "Work Report of the Basic Law Drafting Committee on the Basic Rights and Obligations of Hong Kong Residents" in April 1987, some members once again suggested changing "legitimate rights and interests" to "legitimate traditional rights and interests" because the traditional rights and interests of indigenous residents of the New Territories, namely farmers, are Facts formed over hundreds of years of history, some of which have no legal provisions, such as the issue of inheritance of church and ancestral properties.
As of the fourth draft in August 1987, the provisions were changed to the same as the current
"The lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" shall be protected by the Hong Kong Special Administrative Region"
.
Some drafting committees believe that the rights and interests of the indigenous inhabitants of the New Territories are inherited from the customs and customs of the Qing Dynasty. When the United Kingdom leased the New Territories, it also provided various rights and traditional customs for the indigenous inhabitants of the New Territories in accordance with the laws of the Qing Dynasty. This is conducive to the prosperity and stability of Hong Kong. The word "tradition" represents the special rights and interests of the indigenous inhabitants of the New Territories. The reason is that the management of the New Territories is different from that of other parts of Hong Kong in the past, and does not refer to the traditional customs of the indigenous inhabitants.
In 1988 and 1989, the Basic Law Advisory Committee held a number of public consultations to listen to the views of the public on the Basic Law.
At that time, various sectors of the community still diverged on whether this provision should be included in the Basic Law.
According to the consultation report, there are more negative opinions on this provision than positive opinions. Some people think that the provision should be cancelled, while others worry that the provision may bring a series of human rights issues. For example, after the return of Hong Kong, residents of the New Territories, Kowloon and Hong Kong should have equal Legal status and "privileges" will result in a large degree of equality between men and women, and the unfairness of the rights of indigenous inhabitants overseas.
Until April 1990,
the eleventh draft of the article was finalized. However, the drafting committee did not address the issue of "fairness" that was of concern to all sectors of society. "Protection" is included in Article 40 of the Basic Law
.
As a result, to this day, there are many chaotic phenomena of "Ding Ding" and "Flying Ding", and the distribution of land between the original inhabitants and ordinary citizens is also very uneven; It is rightfully emphasized that the land belongs to them, the right to Ding is deserved, and even the "Basic Law" will be sacrificed.
The problem of "rights of ding" has caused the current uneven distribution of land, and the chaos of "ding" and "finging" has appeared.
(Photo by Zhang Haowei)
The government has approved the construction of small houses initiative
should be directly retrieved Ding initiative
Although the "Ding Right" review case ended with the Court of Final Appeal ruling that it is constitutional, it will not change the outside world's concern about the small house policy and the Ding Right issue, because it is affecting the amount of land reserves in Hong Kong and is indirectly causing housing problems. "Prime culprit".
However, even if the "right" is ruled constitutional, the court also pointed out that the SAR government has the right to approve applications for building small houses. If the application does not meet the qualifications, it can refuse to grant building permits. Therefore, from another perspective, the government can be said to be a review case. The "biggest winner" should act proactively and exercise relevant rights carefully in accordance with the actual situation.
According to the context of the drafting of Article 40 of the Basic Law, the Advisory Committee has long believed that the provisions should be retained in the historical context of the time, but emphasized that the so-called rights of indigenous inhabitants should be revised in accordance with future social changes, and the right to revise is in the hands of the SAR government.
The final judgment now clarifies the rights and responsibilities of the Hong Kong government. It should be based on the public interest and review the small house policy.
The government's primary task should be to reject the application for potential "settling" of housing and to block the opportunity for developers to use this illegal method to make profits.
Secondly, the government must think about how it should modify its policies in the future so as to free up huge land for the development of the New Territories.
Historically, "Dingquan" has never been a reasonable right, and even the drafting of the Basic Law has aroused misgivings from all parties in the society and the drafting members.
Times are changing. Why doesn't the Hong Kong government "cut the mess with a sharp knife" and return Hong Kong people a fair distribution of land resources?
The government must think about how to amend the policy in the future, and plan to release the land for the development of the New Territories.
(Photo by Zhang Haowei)