Hong Kong’s highest court says rights of small male villagers in new territories are constitutional

Hong Kong’s highest court has asserted that a colonial-era policy that allows male indigenous villagers in the New Territories – but not women – to develop small village houses is constitutional.

Court of final appeal. File photo: Kelly Ho / HKFP.

The final appeals court ruled in favor of the government and Heung Yee Kuk on Friday, upholding an appeals court ruling in January that the policy was constitutional.

Appellant Kwok Cheuk-kin, nicknamed the “King of Judicial Review”, argued that the policy was discriminatory and violated the Basic Law, as it only benefited male villagers. The government and the Heung Yee Kuk, however, argued that Article 40 of the Basic Law protects the rights traditionally enjoyed by Hong Kong people.

The judges of the Court of Final Appeal said they agreed with the government’s position that the cottage policy is a discretionary administrative right protected by section 40. As long as it is legally exercised , such a right would not violate Article 25 of the Basic Law, which declares that all residents of Hong Kong are equal before the law.

Village houses on Peng Chau Island. File photo: Tom Grundy / HKFP

While Article 25 was a provision affirming general rights for all Hong Kong people, Article 40 was “a specific provision dealing with the special situation of the indigenous inhabitants of the new territories”. The application of the latter therefore excludes the protections against discrimination which are generally applied.

“Absent [Article 40], all the various advantages enjoyed by the indigenous inhabitants of the New Territories would be inherently discriminatory unless they could be objectively justified as being necessary for the pursuit of a legitimate aim ”, indicates the judgment.

Special privileges

Under this policy, male indigenous descendants of recognized village families can apply for the construction of a small house of up to three stories. Villagers can apply for “free building permits” if they own their own land, or choose to exchange land with the government to obtain suitable land. If they are not landowners, native residents can use “private treaty grants” to get the government to allocate land to them at a reduced rate.

Critics criticize the policy, introduced in 1972 by the British colonial government, as discriminating against women and a waste of land in space-constrained Hong Kong, where more than 200,000 people are on the list. waiting for government subsidized public housing.

Kwok Cheuk-kin. Photo: News from the stand.

Kwok filed a court challenge in 2015 seeking to abolish the policy, which only applies to the New Territories, as unconstitutional. Social worker Hendrick Lui then joined Kwok’s case.

In 2019, High Court Judge Anderson Chow first ruled that “private treaty grants” and “swaps” were unconstitutional, but upheld the “free building permit” as a legal and traditional right. indigenous inhabitants of the new territories. However, this decision was overturned.

Judgment upheld

Kwok, the appellant, said he was “quite surprised” by the result. “Why would I lose? Ming Pao quoted him, adding that he would seek an interpretation from the National People’s Congress, China’s top legislative body.

A government spokesperson said he welcomed the court’s judgment. “The government will continue to receive and process small house applications in accordance with policy and give due consideration to various considerations during their processing,” a statement said.

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