HONG KONG: The importance of 'right of abode' ruling

The importance of the ruling of Hong Kong's Court of First Instance (Vallejos Evangeline b. v. Commissioner of Registration and Another), that held as unconstitutional, the exclusion of domestic workers to qualify as permanent residents, is beyond the debate of legality and constitutionality. The debate should also explore this question: why would a citizen of another country want to be permanent resident here?

I completely support the court's ruling; however, as a Filipino I feel mixed emotions; those of pride and serious questions to my own government. Proud because a fellow Filipino, Evangeline Vallejos, stood up to challenge the constitutional and social order; I question my own government back home because I still struggle to find answers why is it that we Filipinos--who in the old days used to import Chinese nationals back home for construction work --now mostly work here as domestics.

I do not mean that domestic work is a job one cannot be proud of, but I haven't came across a domestic worker who choose to remain working as domestic worker all her/his life. Thus, presumably this type of work, the least of most Hong Kongers to take on as a job, is obviously the result of a lack of choice and opportunity back home. This is what most of my own people have to endure and just stomach the hardship.

Thus, why is it that we Filipinos and foreign nationals of other Asian countries, like Indonesia, Thailand, Nepal and Sri Lanka, come here to work as domestic workers? For other domestic workers who hold degrees and are licensed professionals, why did they choose to take up domestic work than practice their profession? I think we should not forget about these fundamental questions; otherwise, we are in denial and deny ourselves of the very reason why we are here in Hong Kong.

The notion of equality before the law

For us Filipinos, there is much to reflect on the actions of Vallejos in challenging the constitutionality of the Immigration Ordinance (IO) and the subsequent decision of the court in her favor. To look at the court's decision entirely on the legal debate on who should be permanent resident or not will not mean anything to our own people back in our country. It runs at risk of wrong perception that it is solely for personal benefit, rather a question of equal treatment before the law in Hong Kong and in our country.

Although the court's ruling is still subject to appeal; however, there are two elements that obviously tells us Filipinos that we are still lacking in our country and the Hong Kong people should be proud of: firstly, there is confidence that remedies are possible if one decides to take the course of judicial process; secondly, the tradition of rule of law and independence of the judiciary is strong. Here, the judgment independently based on facts not on pressure and political consideration.

Thus, it not surprising that Vallejos sought relief by way of judicial review. We Filipinos have a strong sense of justice and equality; however, our way of life back home is ravaged by the inability of our own system of justice to protect us. Our strong sense of justice and equality often ends up in despair and frustration because of the difficulty of finding solutions to the practical problems that we face. Thus, we should be asking ourselves why judicial remedy is possible here but not back at home.

In reality, a back home court room is a place for the rich and the powerful. Fundamental denial of civil liberties--arbitrary arrests and detention, torture, extrajudicial executions, enforced disappearances--the victims and their families hardly have hardly any trust and confidence that legal action within the judicial process will bring any form of relief. The notion of remedies and relief are being obtained, not within the court process, but extra-legally. For most Filipinos, this is our way of life, and could be true to other Asian nationals as well.

Therefore, what the system of justice and people in Hong Kong has brought us, for me is beyond the possibility of a domestic worker being a permanent resident, but to be affirmed that legal remedies is indeed possible if a society has established a system of system and strong tradition of the rule of law. This is what is lacking to us back home that I encouraged Filipinos to also speak about to be understood than be disliked. The challenge to all Filipinos is how to restore confidence to our own system of justice back home.

What privilege do permanent residents have?

I do consider the concerns of the local people in Hong Kong in strongly opposing the granting of 'right of abode' to domestic workers. To dismiss their concerns as baseless and unfounded by invoking purely the normative standards of rights of equality does not offer much help for us to consider their feelings. Any broad generalization and rhetoric creates further divisions and hatred to a possible extent that it is not possible to discuss it anymore.

Partly there is validity to the claims of the opposing locals; however, that should not be at the heart of the discourse. Here, I would like to discuss the concerns that once given residency the domestic workers would have to: bring their families into the territory, they would exhaust the social services (housing, medical, education and others) and threaten the employment opportunities of the locals.

First, we need to explain what privilege permanent resident actually has. She/he would be issued Hong Kong, SAR Passport; Permanent Identity Card, could take up employment without restrictions, her/his stay is not subject to renewal of employment visas, qualify for public hospitals, like the HKD100 consultation fee; if with children studying, tuition fee subsidy; and could qualify to apply for public housing.

Bringing their families into the territory?

The situation of the petitioner, Vallejos, is far different from most of the domestic workers in Hong Kong. As mentioned in the judgment, she had the support of her employer and her husband in her quest to obtain permanent residency here, unlike but most of the domestic workers who has perennial problem of working relationship with their employer and their families; and personal relationship with their husband back home.

Thus, the prospect of workers bringing their family into Hong Kong does not apply to most domestic workers. In fact, some of the domestic workers who could benefit from the ruling that I have spoken to are not keen on obtaining permanent residency. We often assume that the domestic workers, once they become permanent, will bring their families in but forgetting the fact that those who had stayed here long enough to quality for permanent residency could not have a family of their own anymore.

The cost to their person is terrible. Most of them, for lack of choice, become old maids, to financially support their siblings and relatives for decades; ends up with their families broken apart because of extramarital relationships, they have to endure the feeling of alienation from their own families and society for being away for decades, and relationships breaking due to betrayal and neglect often due to money conflicts.

Thus, in reality of their lives, most of the domestic workers hardly had any family, in what the locals would perhaps understand, to bring here. Even if one decides to bring family in, the sponsor would have to prove that she is financially capable of supporting them here. Thus, it would go to the next issue of employment opportunity; and how much they could earn once they work as permanent residents.

Also, I could not understand why there is paranoia over the scenario, imagined or real, of domestic workers and their families, coming into Hong Kong to reside. The domestic workers are themselves a huge contribution to the economy. Their presence in each of the households of allows employers to work and not to worry about household chores; their children are looked after and their house kept livable. And, in Vallejos' case and others who could qualify for permanent residency, to retire here after working for years, is it too much to ask?

Threatens employment opportunity of locals?

Being a permanent resident does not give any assurance of employment. There are real obstacles for non-locals to be employed here. Firstly, the language problem; and secondly, the skills and qualifications required for the job.

For example, in my wife's case, being a cum laude in her school for accountancy and also a qualified government employee back home, did not give her the assurance of being employed equal to local residents. Firstly, she could not speak the language required for the job in most of the employment openings; secondly, the qualifications of an accountant graduate back home are not recognized here. Thus, the most that a non-local could get in terms of employment is very limited.

Therefore, it is not also accurate to assume that once a person obtains residency status, the employment that is supposed to be for local would be taken away from them by non-locals. We could definitely safely assume that apart from domestic work, the employment opportunities that probably a domestic worker becoming resident lands would be waitering in a bar, dishwasher, a cleaning job and the like. A domestic worker who has been deprived of other opportunities for years would have limited opportunities to land on any job with professional qualifications.

Exhaust the social services?

On social services, even if a domestic worker is not yet a permanent resident, they already qualify to social services. For example, they are already qualified for the HKD100 consultation fee at public hospitals. And if one thinks that other privileges, like the tuition fee subsidy to the schooling children, public housing subsidy; however, that would be on the assumption that a worker would have children to send for school; and endure to wait for three years or more before she/he get result of the application for public housing.

The list for those applying for public housing is long and usually, according to a newspaper reports, the waiting time takes at least three years before an application is approved. Thus, these two social privileges would not have an immediate and tremendous effect, in the manner they are being portrayed in public.

The importance of this ruling

Again, the importance of this ruling is beyond the issue of a domestic worker, or a group of domestic workers, be given the 'right of abode' but rather the lessons that the people, its society and their system of justice is demonstrating to us, particularly to people coming from the Philippines and other Asian countries, who are findings answers as to why they have to be here. It is the strength of the Hong Kong's system of justice that we should also reflect on.

The discourse should be, not only towards demanding equality in Hong Kong, but also to make this as an aspiration back in our countries of origin. To build and live in a society where confidence in the system of justice is possible, for me, should be the aim of all Filipinos, and other nationals whose situation is similar to ours, should be the aspiration for our country of origin. We should use our experience here to be able to reflect on and raise questions of our own society and government.

I questioned the Philippine government, as to why they feel elated rather than shamed over the possibility of their own citizens to be given permanent residency here. Our government should be asked why the Filipinos, instead of seeking protection from its own government, turn to a foreign State for their protection.

The inability of our own government in providing employment opportunity, to make our country livable, a place that is safe for our family to stay and not to escape from, is a very serious question that the government must not take lightly. What we are seeing now is our own government expunging its responsibility to its own people; own our government--without pretence in our law--treats overseas workers as subhuman, if not commodities, due to its labor export policy.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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