Ding-dong court fight defines tradition

Editorial | Mary Ma 5 Dec 2018

The ongoing judicial hearing on "ding right" - the exclusive privilege enjoyed by male indigenous descendants to build small houses in villages in the New Territories - is probably the most anticipated legal case in recent times.

The legal challenge, filed three years ago, became more interesting as the hearing entered the second day.

It's worth the wait. The intellectual debate is at least injecting some freshness to a society choked with unintelligent scenes of disqualification.

There are only two probable outcomes. If the plaintiffs, former civil servant Kwok Cheuk-kin and social worker Hendrick Hui Chi-hang, win, the government - the defendant - is bound to appeal, even right up to the Court of Final Appeal.

If the government wins, it's uncertain whether Kwok and Hui will press the case further, as it would be costly to do so.

Nonetheless, the debate offers an eye-opening lecture on Qing Dynasty laws and tradition.

Representing Kwok and Hui, barrister Martin Lee

Chu-ming, SC, set out to say "ding right" has never been part of the tradition because Qing Dynasty laws didn't forbid women or outsiders from acquiring land in villages.

And there was no evidence to relate Qing laws to today's small house policy that he described as discriminatory - not only against women, but the social majority because it's based on an individual's descent and gender.

Lee also said it wasn't necessarily true that females had always been excluded during the Qing days because unmarried daughters could share what was then known as the "elderly money."

The government side countered that the tradition of the "ding right" could be traced back to the Qing Dynasty, during which village elders were consulted and their consent obtained if someone wanted to build new houses in their villages.

The debate will carry on for the next six days, and for anyone interested in studying that part of history, it's an academic-level exchange they mustn't miss.

Such challenges were beyond imagination in the old days. But it's now possible because society has changed so much to emphasize equality between men and women.

The long-standing practice of excluding females from the small house policy that is currently subject to intense debate in the court is naturally outdated by modern standards.

While both sides go on arguing, I wonder if tradition is always static like an iron plate.

Indeed, nothing appears to be static. Languages, for example, keep changing. Isn't the city's popular expression "add oil" already included in the Oxford English Dictionary?

Political rights keep altering too. If the right to stand for election was taken for granted in the past, it's now become uncertain. So is tradition.

As experts from both sides give evidence to show whether "ding right" originated in the Qing age, would that Qing tradition - whatever it was - be the same as those of the Ming Dynasty that preceded Qing?

Tradition is living custom, evolving all the time. No matter how the court rules, its judgment will also become part of the evolution process.

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