Kicking Cans

Whenever the subject of the small house policy comes up, two famous English expressions -- “passing the buck” and “kicking the can down the road”—immediately spring to mind. The first of these has an almost identical Cantonese equivalent. It simply means passing on responsibility for an action or decision to someone else. The Cantonese for the second translates broadly as “talking without reaching any decision or taking action”, a criticism sometimes levelled at the administration of our first chief executive Tung Chee Hwa. To my mind that is too passive compared to the English. After all, kicking an object down the road implies swinging back one’s leg and applying a measure of force.

Interestingly, there can be a degree of overlap between the two. If you kick the can far enough down the road you have in effect passed the buck to the next generation. Which is pretty much where we are now with regards to the small house policy.

What brought the subject back to life recently was a decision earlier this month by the Court of Appeal to reverse a verdict by a lower court. Some years ago, two citizens sought a judicial review of the policy, which provides that a male indigenous villager when he turns 18 is entitled to build a small house on private land he owns within the village environs or, in certain circumstances, on government land nearby. Indigenous means descended through the male line to a resident of a pre-1898 recognised village. The gist of their claim was that the policy must be unconstitutional because it discriminated between different categories of Hongkongers and by gender. Both are against the law. The lower court ruled in their favour in April 2019. The effect of the Appeal Court decision is to restore the previously applied interpretation of the small house policy in all its absurd glory.

I don’t think we need to dwell for too long on the legal side of the case, though there would seem to be grounds for taking matters further, to the Court of Final Appeal, if only to deal with the issue of gender discrimination which seems pretty basic. But at its root, this is a political problem, not a legal one.

To understand why, we need to go back to the start. The so-called “ding” right of a male villager to build a small dwelling derives from social practices among the rural population in southern China which had endured for centuries. When the British in 1898 obtained a 99-year lease of the New Territories from the imperial Chinese government they inherited the custom. There was no need for them to further distress the inhabitants who came along with the territory by seeking to overturn long established practice so they left it alone.

But in the ensuing 120 plus years, much has changed. In mainland China there has been a civil war ending in 1949 with the victory of the Communist Party and the elimination of many practices and customs of earlier times. China is now an advanced modern country. I haven’t raised the subject with the citizens of Shenzhen or Guangzhou but I’ll bet you a pound to a penny no one is pressing for their ding rights there.

Meanwhile Hong Kong has also been transformed into a modern city and urbanisation has spread rapidly into the New Territories. To smooth the way to development of agricultural land, and keep rural residents sweet, the small house policy was left basically untouched though procedures for administering it were regularized by Denis Bray’s famous circular of 1972. Everyone in the administration has known for many decades that the policy is completely impractical as well as being unprincipled. As I pointed out in a previous column some years ago, it would take more than 100 years to deal with all outstanding applications for small house grants, and in the interim thousands more “eligible” villagers would be born.

The next opportunity to grasp the nettle occurred during the 1980s with the drafting of the Basic Law. The emphasis then was in ensuring a smooth transition in 1997 so perhaps not surprisingly the dogs were left sleeping. The Heung Yee Kuk was mollified with a loosely worded clause which could be read to enshrine existing policy, though the words “small house” do not appear in the final text.

Since 1997, the SAR government has tiptoed round the subject at every opportunity. Secretly some in the administration must have welcomed the citizens’ challenge which had the effect of passing the buck to the judiciary, and quietly celebrated when the policy was ruled unlawful. The government felt obliged under pressure from vested interests to appeal against the 2019 verdict and much to its chagrin the judiciary has now passed the buck back. The temptation in some quarters must be to kick the can down the road again, but I fear we are running out of highway. The proposal to spend the lion’s share of our fiscal reserves on an artificial island east of Lantau to deal with our housing shortage is on the table. The alternative – whisper it softly – would be to gradually eliminate our existing villages (the small house policy has the effect of expanding them) and extinguish all the archaic rural rights that attach to them. That is what every other major city in the world has done. The money set aside for reclamation could be used instead for compensation.

Spare a thought for Carrie Lam Cheng Yuet-ngor who has now been grappling with the policy for over a decade as secretary for development, then chief secretary, now as chief executive. No telling which way she will go, but if I were HKMAO head Xia Baolong I would be listening out for the sound of aluminium on asphalt.