LETTER OF THE LAW
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Current Hong Kong laws fail the test of heritage protection

Government needs to identify a working definition of the term ‘cultural heritage’ which could be ‘evidence of the achievements of man which should be passed on to future generations’

PUBLISHED : Monday, 25 July, 2016, 5:18pm
UPDATED : Monday, 25 July, 2016, 10:28pm

Many news stories have focused on disputes and issues involving Hong Kong’s “cultural heritage”.

Recently an underwater archaeology group discovered an ancient stone anchor and bronze cannons in the waters off Hong Kong and called for more government support for archaeological investigation. The demolition of Ho Tung Gardens and the delays caused to the Sha Tin to Central rail project by the discovery of the archaeological remains of a well at the former Sacred Hill in To Kwa Wan are still fresh memories.

Hong Kong’s sunken treasure: ancient anchor and cannon reveal our rich maritime history

High rents and greedy landlords have been accused of forcing out artisan workers and favourite food restaurants, representing loss of intangible cultural heritage. The issue of Queen’s Pier is also ongoing.

The body tasked with protecting heritage for us all, the Antiquities Advisory Board, has been criticised for being ineffective, weak and secretive, and the discovery of the remains of HMS Tamar is being ignored as much as possible.

There have been claims that the government does not care about Hong Kong’s heritage, that there is no coherent heritage policy and that the laws intended to protect cultural heritage are ineffective, outdated and/or not being applied or enforced.

One problem is that the term “cultural heritage” is used indiscriminately by those concerned when referring to old buildings, art, antiquities, Victoria Harbour, artisan skills, traditional festivals, the environment, folk songs, religious traditions, Dan Ryan’s and the small house policy.

In fact the term “cultural heritage” has very little meaning in the law of Hong Kong and no clear meaning in international law. The more it is used indiscriminately, the less value it has.

The heritage law of Hong Kong is clearly outdated and has not developed as part of any coherent policy. The only law which is intended to protect what many might now consider cultural heritage is the Antiquities and Monuments Ordinance, which refers to “relics” and “monuments” rather than cultural heritage – not surprising as it was drafted in the early 1970s.

Only one law of Hong Kong mentions the term. This is the Environmental Impact Assessment Ordinance (EIAO), which for the context of that statute identifies a site of cultural heritage by reference to the Antiquities and Monuments Ordinance.

Hong Kong’s policy to protect cultural heritage has usually been developed in response to public protests or Beijing. Heritage impact assessments were introduced into the EIAO in the chief executive’s policy address in 2007 in response to public demonstrations about the dismantling of Queen’s Pier.

Hong Kong heritage policy a failure of historic proportions

The survey on intangible cultural heritage (ICH) was a direct response to Beijing’s decision to compile a national list. The recent announcement by the chief executive to abolish the trade in ivory in Hong Kong followed actions by Beijing.

Political issues have resulted in certain strange decisions and reactions to what may be termed “embarrassing heritage”, as in the decision to nominate the 20-year-old Chi Lin Nunnery for the World Heritage List rather than Victoria Harbour or to erase the Elizabeth Regina cypher from our postboxes.

Even the laws that have been introduced have not been effectively implemented, otherwise heritage impact assessments might have identified a stone well and a 40-metre long lump of metal.

International conventions are of little use in determining a working definition of the term “cultural heritage”, preferring to use vague notions and non-exhaustive lists to prevent offending states.

For Hong Kong to show that it is determined to protect and preserve its heritage and culture, the government needs first to identify a working definition of the term “cultural heritage”. This might be “evidence of the achievements of man which should be passed on to future generations.”

Such a working definition would cover many things but not everything that has been at issue. Thus the term may refer to buildings, sites, artefacts, Victoria Harbour, stories, songs, rituals, ceremonies, foods, restaurants, artisan skills and Cantonese opera.

Such a working definition could be used as part of a coherent centrally controlled heritage policy with laws designed to protect, record and preserve cultural heritage and a transparent fully representative body appointed to make decisions about what should be protected, recorded and preserved for future generations.

Of course, we would still disagree at times over what should be cultural heritage and, unlikely as it may seem, a truly independent body might consider maintaining an American burger restaurant as evidence of the achievement of man that should be passed on to future generations in Hong Kong.

Steven Gallagher is associate dean (teaching and learning) at the Faculty of Law, The Chinese University of Hong Kong