The Small House Policy (SHP) is noted to be an inherently discriminatory policy based on two relevant grounds. Firstly, it is not equally extended to female descendants of the indigenous villagers to file an application so that they may build an exempt house with the New Territories (NT). Secondly, while indigenous villagers are able to connect their lineage to NT, the SHP enables indigenous villagers to receive different privileges from natives of Hong Kong and other non-indigenous residents. Whether the SHP is the right of indigenous villagers based on customary law is a complex matter according to the 2003 Rethinking The Small House Policy Civic Exchange report.
Female Indigenous Descendants
Reportedly, the Small House Policy may infringe on all three human rights instruments of the United Nations (UN) that apply to Hong Kong and over the years has been criticised by various UN Committees as discriminatory.
While specifically exempted from the Sex Discrimination Ordinance, it certainly breaches the spirit of that ordinance.
However, simply extending the SHP to women would exacerbate many of the other problems including the lack of land available to current male indigenous villagers who are eligible to build an exempt house. The Civic Exchange report goes on to detail:
“According to the Heung Yee Kuk, before the introduction of the SHP in 1972, people of either sex, irrespective of whether they were indigenous villagers, who owned agricultural land in the NT could build houses to improve the standard of housing in rural areas. The Heung Yee Kuk argue that the SHP restricted the right to build houses to male indigenous villagers. There is no clear documentation on whether women indigenous villagers could apply for small houses before the introduction of the SHP in 1972. The Administration’s account of pre-1972 practices is that heads of families were allowed to build for themselves and for each son upon marriage a house within the village area, either on their own agricultural land or on villagebuilding lots acquired through auctions restricted to villagers of a particular village. These heads were likely to be male. However, the Adminstration’s version of events is questioned by former officials who maintain there were no closed auctions (though it was sometimes made difficult for outsiders to get to the auction site in time) and that procedures were not so straightforward.”
Equal rights for all citizens of Hong Kong will never be achieved as long as the policy remains in effect as it currently stands. As the report indicates:
“The SHP…can be regarded as a modern form of residential discrimination in favour of a particular class of Chinese people.”
Arguably it is fair to other natives of Hong Kong who don’t have the same right to build, nor do they have an equivalent entitlement. While other natives do have access to public housing typically 350 to 500 sq. ft., NT male indigenous villagers often capitalize on the SHP advantages by selling their ding rights to developers for a profit. “The government policy thus uses taxpayers’ money to revert such private property compulsorily to the villagers.” Furthermore, Article 40 of the Basic Law is seen as unfair to the ordinary inhabitants of Hong Kong, which is another reason to recommend amendments to the policy or abolish it altogether.