The Court of Final Appeal has delivered a sharp reminder of the extent to which the Basic Law protects the interests of the rich and powerful.
The judgment arises from a case brought by Hysan Development challenging restrictions imposed by the Town Planning Board (TPB) on its new development in Wan Chai.
The company claimed that the TPB had overlooked a ruling principle of the Basic Law to “protect the right of private ownership”.
The Court accepted this submission, saying that in weighing up the balance of interests between those of the wider community and the individual rights of property owners, the TPB was obliged to give due weight to the interests of the latter which, in this instance, might not have been sufficient when the Board issued its ruling.
The Basic Law is quite hot on protecting the interests of property owners as this issue comes up not just in its guiding principles but is also the first matter to be specified under the section dealing with the economy.
Elsewhere the Basic Law notoriously upholds “the lawful traditional rights and interests of the inhabitants of the New Territories”. Moreover the law sets out the basis for a political system in which the rich and powerful have a totally disproportionate level of representation in both the legislature and the Election Committee, a body that supposedly chooses the Chief Executive.
Pursuing the requirements of other influential groups the mini-constitution also specifically addresses the particular interests of the airline and shipping industries and constitutionally embraces sexual discrimination in stipulating that only men enjoy indigenous people’s rights.
The extent to which the Basic Law entrenches vested interests and privilege is, in large part, explained by the composition of the Hong Kong members of the Basic Law Drafting Committee.
Aside from the two democrats who quit following the Tiananmen Square massacre, those appointed closely resembled the kind of appointments that were made earlier in the century when British colonial rulers sought so-called “local opinion” on issues of the day. Very few ordinary members of the public figured in this equation and many of those summoned for advice did their best to tell their colonial masters exactly what they wanted to hear.
This pattern was repeated in the 1980s when the Basic Law was being drafted and, like their colonial predecessors, mainland officials made a great show of emphasizing the local input into their plans.
Little wonder then that scant attention is paid to the needs of ordinary people. For example, while four paragraphs of the law are devoted to the interests of professionals, no mention is made of trade union rights. Indeed there is nothing specifically addressing the interests of ordinary workers.
Matters concerning social welfare are basically dismissed with an assurance that the government will deal with them and as for matters such as sexual, racial or any other sort of discrimination, well, they are entirely absent from this document.
Coming back to the matter of property rights, it can be argued that this is not merely of interest to the tycoons but also concerns something like half the population who are property owners. Given the history of property expropriation by order of the Chinese Communist Party, Hong Kong residents had an understandable need to be assured that this would not happen here. However the prominence given to the interests of property owners in the Basic Law suggests a distinct lack of balance.
In giving its ruling on the Hysan case, the Court emphasized that although the property developers were entitled to have due consideration given to their interests, the law would only be deployed if it could be demonstrated that these interests had been unreasonably ignored. This suggests that the judges were well aware of the shortcomings of the Basic Law as a guardian of public interests.
Generally speaking the judiciary as a whole has proved itself to be bulwark in upholding the rule of law. Yet, when we see the highly politicized manner in which the Department of Justice is operating, there are real fears that new appointments to the bench will be designed to ensure the promotion of more “compliant” judges and that the judicial independence valued by the people of Hong Kong will slowly but surely be undermined.
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