There was tough talk about ending the small-house policy in the New Territories when Leung Chun-ying was running for chief executive. Now, you wonder if the government hasn't given in. Leung still says it can't go on forever but does not point to a way out. The latest from development chief Paul Chan Mo-po is that it's "a complex issue that needs to be reviewed". And dragged out indefinitely?
Under the colonial-era policy, any indigenous male villager over the age of 18 has the right once in his lifetime to build a three-storey home on a maximum site of 700 sq ft within his village boundaries. It has proved to be highly lucrative for many villagers but has made planning and development virtually impossible. Along with the vast land banks of developers, it has proved to be an intractable problem limiting the supply of land to boost housing.
The Heung Yee Kuk, the powerful rural body that represents villagers, has always argued that the policy is a "traditional" right protected under the Basic Law. Two articles are often referred to. Article5 says: "The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years."
Article40 says: "The lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the Hong Kong Special Administrative Region."
Is the small-house entitlement a traditional right that cannot be changed for 50 years? You don't need to be a lawyer to see it is highly debatable under the terms of the Basic Law. But the kuk says yes; officials are reluctant to challenge them.
The kuk's statement that the policy can end after 2047 - that is, 50 years after the 1997 handover - is now, ironically, called a concession. The government can aggressively tackle Article40 like it has with Article24 on the right of abode; it will always have the Standing Committee of the National People's Congress to stand behind it with the desired "interpretation". Article24 is, in fact, much clearer on the issues it deals with than Article 40.
But for the government, fighting mainlanders and foreign maids is one thing; the kuk is something else.