TNAG-2154-FCO40-3074-Human-rights-in-Hong-Kong-United-Nations-Committee-on-the-El-1990 — Page 24

CODE 18-77

Reference...

(ii) women who benefit from the policy cannot pass the benefit to their children, whereas men can.

According to TUR, para 2, the policy is not embodied in any legislation, but is "the result of law and regulations" namely, S13 New Territories Ordinance, the effect of which is to require the courts to enforce any Chinese custom or customary right affecting NT land. However, I wonder whether the concession actually is a "customary right". Presumably, for a right to be "customary", it must at least pre-date 1898? As far as I know, it was introduced for the first time by the government in the 1970s, and I am not aware of any element of customary Chinese law which it could be said to reflect. If, as I suspect, it is not a customary right, it follows that the concessions policy is not applied by virtue of the NT Ordinance.

(b) Small House Policy According to HK Tel 1330, para 2, this policy allows NT indigenous male villagers to apply for a free building licence to build a house on their own agricultural land, provided the land falls within certain categories. If this is correct, the beneficiaries are differently defined from those under the rent policy, since all men qualify, regardless of descent, but all women are excluded. Please clarify whether this is the case, or whether those qualified to apply are in fact men and women descended through the male line from a person who was in 1898, etc. The discriminatory elements are presumably that women (or matrilineal descendents?) either cannot get a licence, or have to wait longer for one. It appears from HK Tels 1330, para 3 and 1554, para 3, that even the beneficiaries of the policy do not have any immediate "right" to a licence, as it is subject to an unlimited waiting period. Again, I wonder whether it is unambiguously a "customary right" within the meaning of S13 NT Ordinance. It would appear to reflect the pre-1898 idea that each village had its own sphere of influence free of planning controls, but to my knowledge the Small House Policy itself has only operated at government level since the 1970s. There would be a stronger case for calling this a "customary right" than for the rent concession, but I wonder if there is not still some room for argument.

(c) Land Succession

Under Chinese customary law, land is normally inherited by sons, daughters only being entitled where the male line is extinct. These rules of customary law clearly

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