CONFIDENTIAL
074771
MDHOAN 1506
ALTERNATIVE IS EXTENSION OF THE SAME RIGHT TO WOMEN. IF LAND SUCCESSION LAW IS NOT CHANGED, THIS WOULD NOT NECESSARILY RESULT IN MORE APPLICATIONS SINCE TENURE OF RELEVANT LAND IS A PRE-REQUISITE TO ENTITLEMENT TO APPLY. EVEN IF IT DID, THE RESULT WOULD PRESUMABLY BE EITHER GREATER DENSITY OF BUILDING OR A LONGER WAITING LIST. THE INTERESTS OF EXISTING BENEFICIARIES WOULD BE AFFECTED, BUT NOT ABOLISHED. AN ALREADY QUALIFIED RIGHT WOULD SIMPLY BE QUALIFIED FURTHER. THIS SHOULD BE DEFENSIBLE UNDER BL40, AGAIN BY RELYING ON THE QUALIFYING WORD QUOTE LAWFUL UNQUOTE AND THE NEED TO INTERPRET IT IN THE LIGHT OF BL39.
14. CLEARLY LAND SUCCESSION COULD NOT BE ABOLISHED: THE ONLY OPTION FOR REFORM WOULD BE TO EXTEND EQUAL INHERITANCE RIGHTS TO DAUGHTERS AS WELL AS SONS. THIS WOULD BE MORE DIFFICULT TO DEFEND UNDER BL40 SINCE THESE RIGHTS CLEARLY ARE TRADITIONAL AND IT COULD BE ARGUED THAT THE EXTENSION OF INHERITANCE RIGHTS TO FEMALES DOES DETRACT FROM THE RIGHTS OF ALL NT INHABITANTS TO HAVE LAND SUCCESSION DETERMINED IN ACCORDANCE WITH CUSTOMARY CHINESE LAW. A DEFENCE WOULD HAVE TO RELY UPON THE WORD QUOTE LAWFUL UNQUOTE, AND ARGUE THAT THIS RESERVES THE RIGHT TO RESTRICT ANY TRADITIONAL RIGHTS IN THE PUBLIC INTEREST. THE ARGUMENT WOULD GO THAT, JUST AS CONCUBINAGE WAS ABOLISHED IN 1970, SO MUST INHERITANCE LAWS BE MODIFIED IN ACCORDANCE WITH INTERNATIONAL HUMAN RIGHTS OBLIGATIONS. ANOTHER POSSIBLE VARIATION ON THIS THEME WOULD BE THE ARGUMENT THAT SINCE THE RULE OF CUSTOMARY LAW WHICH DEPRIVES FEMALES OF EQUAL INHERITANCE RIGHTS WITH MALES WILL HAVE BEEN ABROGATED BY CLAUSE 3(3) BR, IT IS NO LONGER QUOTE LAWFUL UNQUOTE.
15. SEE MIFT.
HURD
YYYY
ΜΑΙΝ
65
LIMITED
HKD
HD/FED
DISTRIBUTION
68
NEWS DEPT
UND
LEGAL ADVISERS
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CONFIDENTIAL
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