CONFIDENTIAL
10520$.
MDLIAN 0337
PRIVILEGES ARE NOT HUMAN RIGHTS OR FUNDAMENTAL FREEDOMS. WE AGREE THAT IT IS NOT A VERY CONVINCING ARGUMENT.
5. AS YOU POINT OUT, THOUGH, THESE POLICIES WILL ANYWAY BE LIABLE TO CHALLENGE IN THE COURTS UNDER THE BILL OF RIGHTS. THIS HAS BEEN PICKED UP BOTH BY THE GROWING WOMEN'S LOBBY HERE AND BY THE HEUNG YEE KUK AND NEW TERRITORIES RESIDENTS. WE THINK IT QUITE LIKELY THAT SOME OR ALL OF THE POLICIES WILL BE CHALLENGED THROUGH THE COURTS IF THEY ARE STILL IN PLACE WHEN THE BILL IS ENACTED. ALTHOUGH IT IS IMPOSSIBLE TO PREDICT ACCURATELY, OUR INITIAL FEELING HERE IS THAT A CASE AGAINST THE SMALL HOUSE POLICY AND RENT CONCESSION POLICY WOULD NOT NECESSARILY BE UPHELD, SINCE NEITHER IS CONTAINED IN A LAW AS SUCH, BUT A CHALLENGE TO THE LAND SUCCESSION WOULD BE LIKELY TO SUCCEED. IF IT DID SO, WE WOULD BE OBLIGED EITHER TO ABOLISH THE POLICIES OR EXTEND THEM TO WOMEN. WE ARE PLANNING TO STUDY FURTHER THE EFFECT OF THE BILL OF RIGHTS ON THESE POLICIES AND RELATED ORDINANCES (NT ORDINANCE, NOT LEASES (EXTENSION) ORDINANCE ETC.) IN THE GENERAL REVIEW.
6. IF IT IS FOUND TO BE DESIRABLE OR NECESSARY TO AMEND THE POLICIES, WE WILL HAVE TO FACE THE PROBLEMS OF JD 205 AND BL 122, WHICH SPECIFICALLY PROTECT THE RENT CONCESSION POLICY, AND OF BL 40 WHICH CAN BE CLAIMED TO GIVE GENERAL PROTECTION TO THE SMALL HOUSE AND LAND SUCCESSION POLICIES. WE FEEL THAT ABOLITION OF ANY OF THE POLICIES COULD WITH JUSTIFICATION BE OBJECTED TO BY THE CHINESE AS CONTRARY TO THE JD AND BASIC LAW. BUT WE MIGHT ARGUE THAT EXTENDING THE LEGITIMATE TRADITIONAL RIGHTS OF NT INHABITANTS IS CONSISTENT WITH BL 40. EQUALLY, ALTHOUGH JD 205 AND BL 122 MENTION THE ''MALE LINE'' EXTENSION OF CONCESSIONS IN FUTURE TO DESCENDENTS THROUGH THE FEMALE LINE IS IN NO WAY CONTRARY TO THE SPIRIT OF THESE PROVISIONS. WE MIGHT FURTHER POINT OUT THAT THE CHINESE HAVE ALREADY UNDERTAKEN THE INTERNATIONAL OBLIGATIONS UNDER CEDAW, AND SO WOULD NEED TO MAKE SIMILAR ADJUSTMENTS COME 1997 IN ANY CASE. WHILE WE REALISE THAT THE CHINESE ARE GENERALLY UNSYMPATHETIC TO HUMAN RIGHTS ISSUES AT PRESENT, SINCE THE PRC IS ALREADY A PARTY TO CEDAW THIS SHOULD BE LESS PROBLEMATIC THAN MOST. WE WILL NEED TO CONSIDER CAREFULLY OUR TIMING, HOWEVER.
EQUALITY IN EMPLOYMENT
7. IN OUR RECENT REVIEW WE HAVE ENCOUNTERED A FURTHER AREA OF DIFFICULTY ON WHICH WE WOULD BE GRATEFUL FOR YOUR ADVICE: THAT OF EQUALITY IN EMPLOYMENT. AT PRESENT WE DO NOT BELIEVE THAT OUR LAWS GOVERNING EMPLOYMENT CONTAIN ANY DISCRIMINATORY PROVISIONS. WE DO NOT, ON THE OTHER HAND, HAVE ANY LEGISLATION FORBIDDING
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CONFIDENTIAL
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