Ding right is safeguarded by Basic Law, court hearsTop News | Amy Nip 5 Dec 2018
The Basic Law should continue to protect the Small House Policy if it is considered a traditional right enjoyed by villagers in the New Territories, even if it runs against other clauses of the mini constitution, according to the government.
The High Court was told this yesterday as it continued to hear the first judicial review against the policy that guarantees indigenous male villagers of New Territories villages the right to build a small house in his area once in his lifetime.
Such villagers are called " ding" in Chinese and so the policy is nicknamed the "ding right."
Kwok Cheuk-kin - "the king of judicial reviews" - along with social worker Hendrick Lui Chi-hang filed the judicial review.
The government is the case's respondent, while the Heung Yee Kuk is a stakeholder.
In a written address, the government and the kuk said before the formulation of the Basic Law, its drafting committee had heard comments in support of and against the Small House Policy.
It was after hearing their views that they wrote Article 40 saying "lawful traditional rights" and interests of the indigenous inhabitants of the New Territories shall be protected.
If the court ruled that the "ding right" is a traditional right, then it should be protected by Article 40, regardless of whether the right violates other articles of the Basic Law.
Representing the government, senior counsel Benjamin Yu Yuk-hoi said Article 40 runs against the legal principle stated in Article 25, that everyone should be equal before the law.
But the word "lawful" in Article 40 does not refer to equality, as not every Hongkonger enjoys the rights of an indigenous villager, Yu said.
Not all Hongkongers are entitled to the "ding right," he said. The applicant Kwok, for one, is not entitled to it. There is no grounds to say he is being discriminated in the policy, he added.
Another article in the Basic Law, Article 122, supports the legality of the policy.
It guarantees that in the case of village lots and small houses, where the property was granted to a lessee descended through the male line from an indigenous villager, the previous rent shall remain unchanged so long as the property is held by that lessee or his male successors. The wording can be said to be discriminatory from the perspective of human rights law, but such right has been guaranteed in Hong Kong since the 1900s, Yu said.
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