Small-house grant elevated to constitutional right under Basic Law

PUBLISHED : Thursday, 28 June, 2012, 12:00am
UPDATED : Thursday, 28 June, 2012, 12:00am


I am alarmed that the person tipped to be our next chief secretary could have suggested that the small-house policy is a welfare system and an overhaul is required ('End small-house policy, says Lam', June 14).

While this policy was introduced by the colonial government as an administrative measure, following the handover and with the implementation of Article 40 of the Basic Law, it is misleading to continue characterising it as a 'policy'.

The predecessor of the small-house policy was the product of an open proclamation from the then colonial governor Sir Henry Blake, who declared in 1899 that the 'usages and good customs of the inhabitants in the New Territories' would be protected.

It is, in this regard, pertinent to note that even prior to the small-house policy as stated in 1972, licences to build on agricultural land at a concessionary rate were frequently granted to indigenous villagers on an ad hoc basis.

The introduction of the policy in 1972 merely marked the proper formulation of an existing policy.

Since the handover, this former 'right to apply' for a small-house grant has been elevated to a constitutional right by virtue of Article 40 of the Basic Law.

This constitutional right, protected under Article 40, has been confirmed by academic researchers ('Rethinking the Small House Policy', by Lisa Hopkinson and Mandy Lao), and confirmed judicially by our Court of Final Appeal (Secretary for Justice v. Chan Wah (2000) 3 HKCFAR 459 at 477E-F).

Therefore, to continue to suggest that this constitutional right remains a policy of the government is fundamentally flawed. Indeed, contrary to what has been suggested, it is the obligation of the Hong Kong SAR government to protect rather than to limit this constitutional right.

The suggestion that the small-house policy should be confined to those born prior to 2029 presumably on the basis that those born after that year will not reach the age of majority by 2047, is to ignore the fact that Article 40 has been framed in unqualified terms so that it may be exercised unconditionally.

Obviously, while it must be acknowledged that this right to erect small houses has been profitable to those who have benefited and that this right only applies to some but not all, our constitution must, at the same time, be respected.

K. M. Chong, Central