Kong vs Hong Kong
PUBLISHED : Friday, 03 January, 2014, 8:58am
UPDATED : Friday, 03 January, 2014, 9:02am
The Court of Final Appeal, the city’s highest court, handed down an unpopular judgment two weeks ago. Five justices unanimously ruled that the government’s seven-year residency requirement for welfare application is unconstitutional. In Hong Kong, “welfare” is formally known as Comprehensive Social Security Assistance (CSSA), which averages around HK$3,000 (less than US$400) per month per applicant. The meagre assistance is meant to be a bare minimum to give the unemployed or the unemployable a subsistence living.
Reactions to the court’s landmark decision poured in almost immediately. Social advocacy groups hailed the ruling as a victory in welfare rights for not only the immigrant community but all of Hong Kong. The rest of the city was not as thrilled. Many Hongkongers see the lowering of the residency threshold as a threat to their existence, their tax dollars now robbed by newcomers. Netizens on Facebook and Golden Forum (高登), an online chat room and a windsock of public opinion, once again evoked the “locust” metaphor and accused mainlanders of leeching off our welfare net. The Liberal Party (自由黨), run by plutocrats who are pro-business and anti-social programmes, was quick to stoke the fire and criticise the judges for legislating from the bench. There were even calls for a “legal interpretation” by Beijing to overturn the court ruling.
The lawsuit against the government was filed by Yunming Kong (孔允明), a 56-year-old mainland immigrant whose Hong Kong husband died the day after she arrived in the city. Soon thereafter, the Housing Authority repossessed her late husband’s public housing apartment. Homeless and jobless, Kong applied for CSSA but her application was denied because she failed the residency test.
Kong’s case is not atypical. Every year, tens of thousands of Hong Kong men cross the border in search of mainland brides. Once married, the husbands will apply for immigration papers to have the wives join them in Hong Kong. Adult females now account for 65 per cent of all new immigrants granted a “one-way permit” (單程證) to enter the city. For the most part, they depend on their local husbands until the latter either die or file for divorce. It’s not easy for widows and divorcées to find work in Hong Kong, especially since their Cantonese is limited and some have children to look after. Government assistance is often their only way out.
The Basic Law, Hong Kong’s mini-constitution, guarantees all residents, old and new, the right to social welfare. Article 36 stipulates that the access to government assistance be granted “in accordance with law.” The qualifier is broad and vague, and perhaps deliberately so, to give judges latitude to decide what is equitable. As is the case for many constitutional cases, the justices hearing Kong’s claim relied on the “proportionality test” to weigh the impact of a government policy on the claimant against the public interests it serves. In 2004, while the city was still reeling from the ravage of SARS, Tung Chee-hwa’s government raised the CSSA application threshold from one year to seven years with the explicit policy goal to cut public spending. In determining whether the increased residency requirement should be struck down or at least reinstated to its pre-2004 level, the justices struck a balance between Kong’s survival and the long term sustainability of the welfare net. What ended up tipping the balance in favour of the claimant is that the policy change, by the government’s own admission, has yielded “insignificant” and “immaterial” savings in the past 10 years. On the other hand, its impact on welfare applicants like Kong is disproportionately great.
Any law student can see that Kong Yunming vs. The Director of Social Welfare is a slam dunk, a no-brainer. The legal analysis becomes even clearer when Article 36 is read in conjunction with the rest of the Basic Law and the Bill of Rights. The only surprise is that the regressive policy change targeting a specific segment of society went unchallenged back in 2004.
But none of that matters to the local population, who tend to lose their sense of right and wrong whenever their financial interests are – or appear to be – at stake. We have seen that “us-versus-them” mentality earlier this year when the Court of Final Appeal denied domestic helpers the right to seek permanent residence. Whether it is a Philippine maid or Mainland immigrant, our xenophobia defies logic and facts. Government figures have shown that a vast majority (over 85 per cent) of welfare applicants are native Hong Kongers and, far from lazy freeloaders, immigrants are known to work harder than their local counterparts when put on the same jobs.
Then there is the slippery slope argument. Many Hong Kongers fear that the recent court ruling would open the floodgates and lead to the easing of application criteria for much more scarce resources like public housing. That may well happen and it is a bridge we must cross when we get to it. After all, there is a price to pay for living in a democracy. Like it or not, when new arrivals settle in Hong Kong, the distinction between “us” and “them” falls away. If we are unhappy with an immigration policy which the city has no say in setting up or modifying, then by all means take it up with the Liaison Office or Beijing; but don’t take it out on those who enter the city legally and make them the scapegoats for our systemic failures. To argue otherwise is not only racist but also downright foolish. Then again, we witness this kind of foolishness every day when people blame traffic jams and overcrowded malls on mainland tourists instead of our government’s border control. It’s time we stopped acting like fools.