Hong Kong Basic Law article protecting rural house rights is discriminatory but justified, court hears
- Very nature of Article 40 is to preserve the rights of villagers, and the discriminatory effect is part of the purpose, lawyers for powerful rural body argue
The controversial practice of allowing only male Hong Kong indigenous villagers to build homes in the New Territories is a traditional right protected by an article in the city’s mini-constitution – albeit an “inherently discriminatory” one, according to lawyers for a powerful rural body.
David Pannick QC, representing the Heung Yee Kuk, presented the High Court on Thursday with arguments that he called “footnotes” to the government’s “compelling submissions” demanding the dismissal of a judicial review challenging the small-house policy.
The united stance from officials and the statutory advisory body on rural affairs prompted a humorous remark from Martin Lee Chu-ming SC, counsel for the judicial review applicants.
“I feel like a tennis player playing with two players on the other court,” he told Mr Justice Anderson Chow Ka-ming. “And they are a good pair.”
The application, made by former civil servant Kwok Cheuk-kin and social worker Hendrick Lui Chi-hang, centres on a controversial policy enacted in 1972 which permits male indigenous villagers descending from the male line to build a three-storey house once in their lifetimes.
At issue is whether such a practice falls within “the lawful traditional rights and interests of the indigenous inhabitants” which are guaranteed by Article 40 of Hong Kong’s mini-constitution, the Basic Law – the major provision cited by policy supporters.
Lee has answered “no”, arguing instead that the policy is discriminatory on the grounds of sex and descent, and inconsistent with other Basic Law provisions on equality.
Small-house policy not discriminatory because not all Hongkongers are eligible in first place, government argues in judicial review hearing
But Benjamin Yu SC, for the government, pointed out on Thursday that “the very nature of [Article 40] is the preservation of the rights of a certain class of individuals” and “the discriminatory effect is part of the purpose”.
Pannick added that the Basic Law drafters were “of course aware” that Article 40 was “inherently discriminatory” and had debated whether it should have been included.
“Those who argued against did so precisely because they felt the small-house policy is arbitrary, is unfair, yet would be protected by Article 40,” he said.
“Those who argued in favour repeatedly referred to the small-house policy as a primary example of the rights and interests Article 40 would protect.”
The debate, Pannick said, showed both sides had proceeded on the same basis that Article 40 would protect the policy if it were promulgated in the Basic Law.
“What is found in the 1972 policy is a traditional right, a traditional interest provided to indigenous villagers,” he continued.
While Lee argued that Article 40 protects only the traditions justified under Article 25, which stipulates that all Hong Kong residents are equal before the law, Pannick said that would defeat the very essence and purpose of including Article 40 in the first place.
Controversial small-house policy ‘was never traditional right of indigenous male villagers in Hong Kong’
“Article 40 provides constitutional protection whether or not the practice can be justified,” Pannick said. “The blunt truth from which Mr Lee’s submissions cannot escape is that the reason for including Article 40 is to protect the rights and interests, such as the small-house policy, from challenge under other provisions in the Basic Law.”
Pannick further argued that the review application “must be refused” because of the applicants’ inordinate delay in mounting the challenge without explanation, after Yu expressed concerns with the wider implications of the court entertaining challenges to long-standing government policies.
Some 9,892 small houses were granted in the decade from 2008 to 2017.
Lee will reply on Friday.