According to a recent report, the administration has informed the Central and Western District Council that it does not need to consult Hongkongers about its lease of 2,100 square metres of land on a site in Borrett Road, Mid-Levels, to the Ministry of Foreign Affairs. This is because the lease is a private treaty grant and 'according to precedence, no consultation is needed'.
Assuming the civil servant who wrote this letter means 'precedents' and not 'precedence', what are these that dictate no consultation is needed? Is it because the lease is to an arm of the central government?
Some commentators have criticised those who have called for consultation on the use of the site. which is zoned 'government, institution, community'. They point out that, under Article 7 of the Basic Law, all land and natural resources within Hong Kong is state property under the management of the special administrative region government, the implication being that Hongkongers shouldn't question this very modest request to reserve some land to build a residence for the commissioner for foreign affairs in Hong Kong.
Modest it may be now but, on this logic, every bit of Hong Kong is up for grabs by different arms of the state. So, if there is to be no public consultation and an unquestioning attitude on the part of the administration, where will it end?
Under Hong Kong law (and common sense), no land owner can grant a lease of the land which he owns to himself and his agent can't grant it to him either. Thus, if the administration is resorting to Article 7, it should not be granting any lease of land to the Ministry of Foreign Affairs but merely acknowledging, as the manager of state property to the owner of all such land, that, henceforth, this piece of land will not be available for grant to anyone else. On this point as to whether a treaty grant is necessary, the precedent will no doubt already have been set in the arrangements whereby the Ministry of Foreign Affairs occupies land on Kennedy Road /Macdonell Road for the commission building and on Borrett Road for the residential facilities for staff and visitors.
But the most dangerous precedent is the one about to be set unless we protest against it. That is, the notion that the public need not be consulted when the government intends to 'privatise' publicly owned land by treaty grant.
The public consultation period has just ended on the proposal to demolish the west wing of the Central Government Offices and to 'privatise' it by selling it to developers for a commercial building and shopping mall. If the precedent were already in existence, there would have been no consultation. Even if the proposal goes ahead, the method by which the development of the site is to be controlled and the terms of the grant are of intense public interest. It is absurd to suggest the contrary.
Land for building housing and community facilities is in short supply. Land for public use and enjoyment is in short supply. Even pavement space is in short supply. The very idea that the public should have no say in land use just because the land is to be the subject of private treaty grant is a recipe for fanning the widespread belief in collusion between property developers and the government.
It is true that the public only has an extremely limited say as a matter of law through the town planning process. But no government which claims to serve the people can ignore the need to consult them on issues of land supply and use.
The lease of the site will run until June 30, 2047, 'when the transition phase of Hong Kong's change of sovereignty ends'. Let us hope that the author of the letter to the district council is not a harbinger of a return to imperialism when the emperor spoke through his eunuchs and none dared question.
Gladys Li, SC, is a former Bar Association chairwoman