Land is not only the most valuable property in Hong Kong. Property on the land, with all the rights associated with it, is the bedrock of the common law system, which prevailed in Hong Kong under the British and is now preserved by the Basic Law.
Clarity in the law governing land dealings is fundamental; so when the government fudges matters concerning the legality of land, we have a serious problem that goes to the heart of the rule of law.
Two recent incidents have raised concern. The first is land grants. Since July 1997, the Hong Kong government has made land grants of 50 years. As time goes on, more of these grants extend beyond 2047. But does the administration have the power to do that? In legal terms, what are the nature of the rights for the period between 2047 and the grant's expiry date?
Let us remember that, after reunification, the mainland's socialist system would have applied to Hong Kong were it not for the provisions in Article 5 of the Basic Law. But Article 5 is time-bound: the current system will remain in place for 50 years after 1997; it is also geographically bound by the territorial limits of our special administrative region. Beyond that time and place, mainland law and the socialist system will apply. Neither permits the private ownership of land. So how is it possible for the government to grant a lease beyond 2047? What rights does the lease 'owner' have?
Few people can envisage a socialist system in Hong Kong, but this is beside the point. The point is the legal basis here and now. The government's answer is ludicrous; it claims that Article 7 of the Basic Law does not explicitly limit the SAR's powers to 2047 in respect of the responsibility for the management, use and development of the land and natural resources within Hong Kong, and for their lease or grant to individuals or groups.
The answer is unconvincing. This is not a theoretical problem for lawyers; it affects the ownership of people's homes, the willingness of banks to grant mortgages as 2047 draws near, and property and business investors. This was the problem that drove the Hong Kong governor in 1980 to approach the Chinese leadership. The government believes history will not repeat itself - hardly an answer to put our hearts at ease. A government respecting the rule of law should work on a better answer.