Planning and property rights in Hong Kong under constitutional capitalism

Abstract

This paper identifies and discusses some constitutional law issues arising from the tensions and contradictions between the statutory land use planning and related regulations in Hong Kong and its Basic Law. The Basic Law is a written 'mini- constitution', which expressly guarantees the protection not only of private property rights but also of the market economy and capitalism. These tensions have their roots in the superimposition of modern town planning legislation onto a consesual and contractual planning system based on a leasehold land system introduced by the colonial administrator. They emerged as constitutional law issues with the inception of the Basic Law, as the previous British colonial regime was replaced by the so-called 'One Country, Two Systems' of China. It is argued that these tensions are crucial from land economics and political points of view in the context that half the population of Hong Kong, a so-called faithful student of laissez-faire philosophy, has been living in public if not assisted housing. Furthermore, China is on the road to a liberalized economy and globalization on terms acceptable also to the international community. Some suggestions that are based on established common law concepts and the land administrative practice of colonial Hong Kong are offered for ameliorating the said tensions.