Constitutional Protection of Property Rights in Hong Kong

Abstract

Although the evolution of the modern concept of the right to private property is a matter of historical contingencies, private property has now been firmly established as a basic institution of the contemporary world. It may be defended or justified by a number of moral and economic theories. Since the late twentieth century, the predominant conception of property has been one which associates it with its 'social function', thus superseding the earlier notion of 'absolute' property rights. At the same time, the protection of property rights has acquired increasing prominence in the constitutional jurisprudence of many legal systems. While it was a British colony, property rights in Hong Kong were not constitutionally entrenched. These rights were however clearly defined by the long established tradition of the common law which had been transplanted to Hong Kong. At the same time, the principle that the compulsory acquisition of private property by the exercise of governmental power must be subject to the payment of just compensation was reflected in legislation. Hong Kong law also followed the modern trend in subjecting various private property rights to regulation in the public interest. The pre-1997 legal system in Hong Kong has largely remained intact after Hong Kong's incorporation into the People's Republic of China (PRC). The legal protection of property rights has in fact been enhanced after the handover with the coming into effect of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the PRC. This 'mini-constitution' for post-1997 Hong Kong gives constitutional recognition to the protection of private property rights. This paper will begin by reviewing briefly the theories relating to and rationales for the protection of property rights (part II). It will then introduce the existing regime for the constitutional protection of property rights in Hong Kong (part III). Two specific problems arising from the interpretation and application of the constitutional provision for the protection of property rights in Hong Kong will then be examined (parts IV and V). The paper will conclude with a summary and some observations about the development of constitutional protection of property rights in Hong Kong and in mainland China (part VI).