In July 2005, the European Court of Human Rights in Siliadin v. France ruled that France violated Article 4 of the European Convention on Human Rights that prohibits slavery, servitude, forced and compulsory labour. This groundbreaking case raised worldwide awareness about the plight of domestic workers and gave impetus for change in countries such as the United Kingdom, which adopted new legislation criminalizing modern slavery.
Putting domestic workers on the level of modern slaves has inspired the popular view that although domestic work is “work like any other,” it should also be treated as “work like no other.”
Yet, the Hong Kong Court of Final Appeal seems oblivious and insensitive to the importance of recognizing domestic work as work like no other. In its recent decision last March 25, 2013, the Hong Kong court ignored universal recognition of the rights of migrant workers, particularly foreign domestic workers, as enshrined in various United Nations conventions. I am referring to the court’s ruling that foreign domestic helpers are not allowed to settle permanently in Hong Kong even if they have been resident for seven years, which is the period that would ordinarily qualify foreigners to become permanent residents of Hong Kong under its Basic Law.
Paragraph 4, Article 24, of Hong Kong’s Basic Law states that permanent residents of the Hong Kong Special Administrative Region shall include “persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.” Two Filipino domestic workers sought permanent residency by arguing that banning them from becoming permanent residents is unconstitutional under Article 24 but Hong Kong’s high court ruled against them.
According to the Hong Kong court, the true definition of “ordinarily residing” for the purposes of Article 24 of its Basic Law does not apply to over 286,000 foreign domestic workers, largely from the Philippines and Indonesia. In other words, the court’s restrictive definition means that these workers are not entitled to residency on a par with other foreigners.
Foreign domestic workers in Hong Kong typically work in private homes, performing various household tasks, such as cleaning, cooking, laundry, gardening and caring for children or elderly people. These are workers similar to the live-in caregivers in Canada, and most of the time, this type of work is done by women. Many Hong Kong families and expatriates consider domestic workers as their servants who are essential in looking after their households so they can freely pursue their employment or businesses. As maids or servants, these workers are excluded from the legal minimum wage and other basic services.
“The foreign domestic helper is obliged to return to the country of origin at the end of the contract, and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong,” the top court said in a 49-page judgment.
In essence, what the Hong Kong court is saying is that domestic workers are on a different category and that their employment is very restrictive. Domestic workers, in short, are not good enough for the country. As a result, the Hong Kong court has set back the clock for human rights to the stone age. It is a retrograde decision that effectively allows institutional discrimination. Or worse, it allows slavery or servitude.
Under Article 39 of Hong Kong’s Basic Law, the provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other international labour conventions which Hong Kong have signed to shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. One of the most pertinent provisions of ICCPR in Part III, Article 8(1,2) refers to the prohibition of slavery and servitude, which are the very same provisions enshrined in the European Convention on Human Rights and other similar UN conventions. These are the pertinent provisions which the landmark case of Siliadin v. France identified as having been infringed and thus found France culpable for violating its positive obligation to prohibit servitude.
The Hong Kong court also ignores Article 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, another convention that took into account the principles embodied in the basic instruments of the United Nations concerning human rights, which provides that “no migrant worker or member of his or her family shall be held in slavery or servitude.” Similarly, the court also derogated from the human rights protections prescribed by the Domestic Workers Convention of 2011.
In excluding foreign domestic workers from permanent residency, the Hong Kong court did not simply restrict its definition of the state’s Basic Law but also offered a narrow-minded and discriminatory categorization of domestic workers. While most other countries allow foreigners under their laws to apply for permanent resident status, Hong Kong continues to treat domestic workers as slaves or servants and essentially beneath other foreigners. In other words, in a country that acknowledges the obligation to observe and implement human rights protections in its Basic Law, these protections are irrelevant to domestic workers.
|Hong Kong domestic workers protest court decision to ban them from permanent|
residency. Photo courtesy of Meaghan Fitzpatrick/CBC News. Click link to view
http://www.youtube.com/watch?v=wTz3w3Istb0, Hong Kong Maids Lose
The human rights approach to the rights of domestic workers is now considered universal, stringent entitlements. Disadvantages have been historically created for their sector because of the very nature of their work and their working conditions. They have been mostly excluded from labour legislation even as studies have shown widespread abuses of domestic workers such as withholding their passports, exploitative working relations and conditions like having no rooms of their own and being compelled to be available 24/7, inadequate meals, and physical abuse or assault. The location of domestic labour makes the workers even more vulnerable to abuse by the employers. Domestic labour also has a stigma attached to it, because it is the poorest and neediest who are occupied in it, and due to the tasks required from the workers, is mostly done by women and undervalued.
Notwithstanding the exploitative working conditions of domestic workers, the positive effect of paid domestic work for contemporary society cannot be underestimated. Having domestic workers is beneficial for family members, the employers and the market as a whole. In today’s economic setting, domestic work is vital for the sustainability and function of the economy outside the household.
This is why Hong Kong’s Basic Law has recognized the human rights protections provided in UN and other international conventions. What the Hong Kong court did in excluding domestic workers from the beneficial effect of Article 24 of its Basic Law is to contradict what it says it is obligated to uphold. The worst it has achieved is to divide its population into two distinct groups: 1) those who are citizens and permanent residents and are protected under the law, and 2) those who are to be treated as servants or slaves and outside the aegis of the law. This is pure and repulsive discrimination, reminiscent of apartheid and the segregation of blacks in the United States.
If the Philippine government has any decency and diplomatic clout left in dealing with other nations, this is one occasion for our leaders to stand up and fight for our poor and exploited workers in Hong Kong, mostly women who have sacrificed their dignity by working beneath their skills and talents to take care of their families back home. Never mind that these are some of our overseas foreign workers (OFWs) who keep the nation’s economy afloat because of the dollars they remit. No decent and proud nation or government can turn a blind eye and condone this hideous treatment of its citizens abroad.