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  • Jul 12, 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

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johndoe
"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!"
HK-Explorer
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.
johndoe
Agreed, this article is hogwash
lhsu2000
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.
superdx
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!
johndoe
@superdx
"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.
superdx
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.
hlu
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?
johndoe
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.
Kawe
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.
superdx
The whole concept of domestic helper is akin to slavery. There is no law, no ordinance and no judgement that will make the domestic helper position seem like anything less than pure contractual slavery.
Instead of compounding one problem (PR, rights, protection) with another, Hong Kong as a society needs to look deep into itself and realize that a FDH is a crutch to avoid spending time at home. Children are growing up learning values of a third party, well intentioned or not.
johndoe
Sorry to take you down from your moral high ground, but you have no business in pointing finger in what people ought to do at their own home. A home is what is called a "personal" and "private" space, which is rightly out of reach for government bureaucrats and moral preachers. How a family manages its childhood education and household duties is frankly speaking none of your business. Contrary to what you seem to imply, most households take these issues very seriously, seriously enough that they are not going to let someone else to "fix" that by, for example, banning domestic helpers (foreign or local).
babyhenry
Because we kidnap them and sell them as commodities like slaves?
BTW no one in HK force any of them to come, their home countries forced them to come here. Its sad that they have to live a life like this in HK which sadly is still better than back home..... Maybe you should ask FDH in Singapore, Saudi Arabia, etc and see if HK is really that bad & rotten.
SpeakFreely
Agree that some families with small kids may require domestic help. But this is over abused in Hk as I saw many families with grown up kids and even retired or semi retired household in the 50s are healthy and not working but still having a helper at home. All because of the low cost to keep them. In US I know a lot of so called millionaire with big houses often do not have helpers. Partly because of the culture and also the cost of keeping a helper is much higher. Hk people are just too lazy,
SpeakFreely
"Visitors to Hong Kong are struck by the paradox of inhumane treatment of domestic helpers in an otherwise developed and beautiful place." I am not sure how true is this. These visitors have not visited the coffin home and sub divided flats housing probably 200k to 400k people.
I do not agree on treating helpers like a slave either. But letting them to leave outside will not guarantee they are not living in terrible coffin homes either. As it is just too expensive to get shelter in Hk with good transportation.
johnyuan

Fearing the most after the middleclass is the property sector about granting right-of-abode to the foreign domestic helpers. Without these cheap helpers which would have resulted, the entire housing market will collapse in Hong Kong.
I think most Hong Kong citizens have no choice when come to the dependency on domestic helpers whereby a spouse/parent’s income is ten times or more than paying a domestic helper.
Too, the middleclass has no alternative giving small and expansive housing that sleeping on kitchen floor by helpers seems normal. Too, picnic on city pavements is normal. Hong Kong government made laws to assure a condition that foreign domestic helpers don’t bear children in Hong Kong to claim for right-of-abode. Without those laws, too government’s land policy will collapse. So all in all, modern Hong Kong citizens live in human tragedy both to themselves and others just because of land and property being manipulated in the privileged hands of a few.
China is halting in the mainland the unsustainable land and property development that exported from Hong Kong.
ianson
The judgment was a good example of the rule of law operating effectively. The law is not discriminatory at all: any Filipino or Indonesian can apply to come to live and work in Hong Kong in the same way as thousands of other professionals if they are suitably skilled and qualified to do so. FDHs do not offer those advantages to Hong Kong and come, in effect, under an exception to the rules for normal skilled (or capital contributing) immigrants who may ultimately gain permanent resident status. By definition, FDHs are simply not in that class and that has nothing to do with racial or economic discrimination. The rest of what you have to say about living conditions must look atrocious to overseas readers but it skips the plain fact that even comparatively wealthy Hong Kongers live in claustrophobic shoeboxes; if FDHs wish to break out of their homeland poverty by working in Hong Kong, they have to accept the poor housing condition tradeoff. It would, obviously, be utterly impossible to house hundreds of thousands of FDHs independently - we are far from satisfactorily housing the existing residents. FDHs make a free choice in coming here and it can't be right to lay at Hong Kong's door the responsibility to solve the economic hardship of all the poor nations and peoples of the world.
johnyuan
It takes a foreigner, I assume professor Beau Lefler is who must have been at HKU for some years to know Hong Kong history so well and with it to know the ins and outs of current life in Hong Kong. The Chinese in Hong Kong I will add, are most practical people who just pass on their hardship experience to people who they can master. I am afraid it is an ingrained trait. Unequal society always has been tolerated until an uprising against the torturers throughout Chinese history. Here in Hong Kong, the government, the property developers and the bankers colluded to set the economic culture of Hong Kong. Much regrettable that the abused citizens than abuse the foreign domestic helpers – sleeping on kitchen floors and relaxing on cardboards in public on weekends. What a human disgrace to inflict human disgrace in just passing on to others.
HK-Explorer
I love how people can bring in US slavery that occurred 100 years ago and also China kidnapping girls. domestic Helpers choose to come to HK with contracts, rights and protection by the government. They lead great lives in HK. Domestic helpers enjoy meeting in central / CB / MK because that is where all their friends go. There are beautiful parks they can go to. Also domestic helpers get HK $4,000 per month which is totally just spending money as they have everything else paid for them. Thus they can go to restaurants and churches etc.. But no they enjoy sitting outside with their friends. this is great and is not oppression by HK people.
Without the law in place HK would have never welcomed domestic helpers. They would not have had the opportunities they have. Canada, US, UK would never have given 300,000 domestic helpers work even thought they have mush larger countries and population. Please stop the HK bashing!!
SpeakFreely
US 100 years ago was a developing country and the whole world at that time didn't brother with human right. Now in 2013 HK is a developed place and the world is seeing things differently. It is a fact that in developed countries, domestic helpers are paid OT whether you like it or not. Having said that, as I wrote up there 200k to 400k Hkongers are living in coffin home and sub divided flats, I can understand why we can't offer too much space for our helpers.
maecheung
Agree with you Beau Lefler. The mentality of Hong Kong employers are 'slave drivers and exploitation of labour' under the disguise of 'hard work and being industrious'. Just take a survey among workers in Hong Kong in various fields of work, how many of them get to get off work 'on time'?
 
 
 
 
 

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