• Wed
  • Sep 17, 2014
  • Updated: 11:08am
CommentInsight & Opinion

Don't use the law to discriminate against domestic workers

Beau Lefler says the courts should uphold principle of equality before law

PUBLISHED : Tuesday, 26 March, 2013, 12:00am
UPDATED : Tuesday, 26 March, 2013, 3:28am

In Hong Kong, people enthuse over the "rule of law" and its long-standing presence here. It is the cause of our economic miracle and social stability, and is purportedly the main difference between us and the mainland.

At a minimum, the rule of law includes the idea that those with power should not use the law to oppress those without. Unfortunately, history is replete with aristocratic elites or ethnic groups that oppressed those not belonging to their clan, caste or race, by dressing otherwise shudder-inducing inhumanity in the robes of legality.

Regrettably, societies have used the law as a tool of repression. For example, until recent times, laws in the US dictated dissimilar treatment of blacks and whites. Legal institutions in Germany did not thwart Hitler's rise to power but joined in enabling it. Judges committed moral crimes by abdicating their responsibility to check power.

Here in Hong Kong, until 1930, its then British rulers passed laws that reserved the choice areas of The Peak to non-Chinese, with exceptions made only by the governor's decree.

The city also had its own system of female child slavery. Local households bought young girls from poor mainland families and, like slave owners throughout history, assuaged their conscience with self-portraits of generosity - bondage in Hong Kong was surely better than freedom in poverty.

The average Hongkonger recognises that the laws here are bent in favour of the landed, moneyed elite, and people cry out that they deserve protection against the ravages of the powerful, politically connected elite.

Yet from those cries we hear the unmistakable echoes of hypocrisy. For while it is an outrage that tycoons have free rein to price-gouge and monopolise, it is apparently morally acceptable for those who suffer to inflict pain on individuals even more disadvantaged.

Visitors to Hong Kong are struck by the paradox of inhumane treatment of domestic helpers in an otherwise developed and beautiful place. The incongruity of a field full of non-Chinese, huddled together on cardboard boxes on a blustery winter day in the middle of the city, is stupefying.

And so the first of many questions come, to which unsatisfactory answers are uncomfortably given:

Why do they sit out here on cardboard boxes? They have nowhere else to go.

Why don't they get together with each other in their flats? The law prohibits them from living outside their employers' homes.

You mean they can't even go home at night after a hard day's work? No. And often they sleep in a child's room or on the kitchen floor. Legal rules have been designed to thwart any complaints of abuse or nonpayment of wages.

Why would Hong Kong make such horrible laws? Well, it's part of an ongoing effort to make sure that domestic helpers never become permanent residents. If they don't rent or buy, so the logic goes, they can never truly be permanent. Also, they must sign a government-produced contract that lasts only two years, after which the helper is forced to leave Hong Kong. This again works to prove they are not permanent.

Doesn't Hong Kong have constitutional protection against such unequal treatment? Indeed it does, but Hong Kong judges have ruled that since Hong Kong people don't want helpers to be permanent, it's OK for the judges to treat them like a lesser class of people.

It is said that those who are mistreated often mistreat others. As average citizens are legally oppressed by the powerful, that same citizen now legally oppresses the domestic helper, with open and ugly approval by a judiciary sworn to uphold the "rule of law".

Beau Lefler is a lecturer in the Faculty of Business and Economics at the University of Hong Kong


For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive



This article is now closed to comments

"Visitors to Hong Kong are struck by the paradox of inhumane treatment of domestic helpers in an otherwise developed and beautiful place."
One bogus claim after another without evidence. Or do they mean this..
"The incongruity of a field full of non-Chinese, huddled together on cardboard boxes on a blustery winter day in the middle of the city, is stupefying."
Oh so now it is important to mention that they are non-Chinese? How about the fact that they are non-whites, or non-Indian? Nah, because then what if some Chinese guy was sitting on a bench next to them? Then the beautiful discrimination narrative wouldn't fit. Actually they bring blankets as well, because there is not enough benches for them to sit there when they come in the thousands at the same time. What is the big deal? Shall this be interpreted as not enough benches? Park space is a limited resource and there are already many benches there.
And what is stupid about them being allowed to congregate? This is what is called freedom of assembly. Try that in Singapore for a change. Oh, that would require a permit, sorry. The helpers are having a statutory resting day and they are exercising their civil rights to use this day and utilize the public space made available to them courtesy of the the kind Hong Kong taxpayers, to which group they do not belong.
How about the author begging and screaming "Please force maids to pay taxes! They are treated unequally! Tax avoidance is racism!"
99% of Domestic Helpers have great jobs, great employers, great benefits and love being in Hong Kong. They are the furthest away from being slaves.
Agreed, this article is hogwash
Wait, wait, wait... Slavery means people are treated as property to be "bought" and "sold", and are forced to work. They can't demand compensation, change jobs, have paid vacation time off, paid home leave, paid medical insurance, etc. Foreign Domestic Helper program is a well defined and protected by law in HK for both employees and employers (read the booklet published by the government). It's an employment contract agreeable and signed between two parties at the beginning of each two year term. Either side can terminate the contract before expiration under certain conditions. There are big differences between these two systems.
You can put contracts onto anything and make it legal.
Perhaps it's a different sensibility, but you're basically asking someone to wipe your shoes and clean your toilet. Yes, there are people who do public & commercial sanitation and cleaning duties. It's called a real job.
Domestic helpers are for your home, kind of shameful isn't it? People should clean up their own mess! So many stories about HK university dorms where the kids don't even know how to use a washing machine, man alive!
"People should clean up their own mess"... yeah, really. I assume you are already carrying your household garbage all the way to the rubbish dump in person, either by foot or by driving your own vehicle.
There is nothing shameful about having someone to help out with household duties. And who are you to flout your ignorance about washing machines. If you cannot use a washing machine, keep that problem for yourself, thanks.
In fact I do all those, lol
While nothing do with slavery, I don't like anyone living with me. I like to walk around in my underwear man.
fdh, from my observation, is essentially a contractual slave. a local helper is paid way better than a fdh ($10k vs. $4k), and doesn't have to sleep with a kid or on kitchen floor (i saw some even slept on a washing machine or fridge). i cannot believe this is happening in HK. the horrible fdh laws oppressed those maids in a disgusting way.
for those of you who are saying the maids are working happily in hk, have you really asked those maids how they feel? tell the maids their local equivalents are paid two or three times more than what they got paid, and tell them this is "equal" treatment. tell them although flats in HK are tiny, and they should feel happy when they sleep on kitchen floor (while you're sleeping on bed) or share a already very tiny room with your kids. do you really care how they feel?
Your observation is obviously clouded with marxist and collectivist thinking.
First there is no such thing as a "contractual slave". Either a contract is valid, or it is not. To call this slavery is a massive insult to those who really suffer slavery-like conditions, and FDH is nothing like that.
I challenge you to provide substantial evidence that all/the majority of FDH sleep on the kitchen floor, because that is just another bogus claim.
Please note that the appellants never argued in court that there was unequal treatment. This whole column is quite appalling to me. Hitler and slavery? Yellow journalism more like it.




SCMP.com Account