OFW triumph in a HK court

By Raul C. Pangalangan – A Hong Kong court recently ruled in favor of a Filipina maid’s petition for permanent residency based on Hong Kong’s Basic Law, the equivalent of the territory’s constitution.

The decision pits Hong Kong’s declared commitment to the rule of law against its fears of an immigration deluge. It parallels the Filipinos’ own local debates on whether white-collar professionals should be exempt from the strict exit regulations applied to OFWs. We all—Hong Kong Chinese or Pinoy—go into intellectual contortions to craft class-neutral regulations to camouflage class-based prejudices. It exposes both societies’—Hong Kong’s and Pinoy’s—own self-contradictions, or in the words of a philosopher, the “incongruity between the [‘official political dogmas’] they had accepted [and] the social life they in fact lived out in their relations to one another and to their subordinates.”

Evangeline Banao Vallejos has worked as a maid in Hong Kong since 1986 under a succession of fixed-term contracts. By the time she applied for permanent residency, she had been a Hong Kong resident for more than 22 years, but for the brief intervals she would spend in Manila as required by Hong Kong each time a contract expired.

The Hong Kong court found that the entire family of her employer “treated her as part of their family,” supported her residency application, and would continue to employ her should she gain such residency. She had “integrated into the local community,” was “active … in volunteer work [for her] church” and “wishe[d] to retire in HK” with her husband. Her children were all grown up, married and financially independent—causing none of the immigration nightmares raised by critics. In the language of public interest litigation, she was the ideal Hohfeldian plaintiff, a sort of pre-beatification Rosa Parks of the 21st-century civil rights movement.

Since its historic handover back to Chinese sovereignty in 1997, Hong Kong has been governed by a charter, the Basic Law, that would secure for the next 50 years the “one country, two systems” approach to signal the world that Hong Kong will continue to be the center of Asian markets, and signal Hong Kong’s people that Beijing would continue to respect their human rights.

The Basic Law gave permanent residency to people “not of Chinese nationality who 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.” This would give rise to the “right of abode,” to remain in Hong Kong without “any restriction in respect of his or her employment, place of residence and duration of stay.”

However, the Immigration Ordinance excluded “foreign domestic helpers” (or FDH in the idiom of Hong Kong law), relying on the definition of the term “ordinarily resided.” FDH did not meet that test, it was argued, because inter alia they are typically allowed into Hong Kong solely on fixed-term contracts and must leave Hong Kong once these expire; they live in the homes of their employers and do not establish an independent household; they are banned from bringing in their dependents “to ensure that they will maintain genuine links in their own country,” otherwise the surge in immigration would overwhelm Hong Kong’s resources.

The court rejected the view. How different is the FDH from any other person employed in Hong Kong under their labor laws? They are equally subject to whatever privations or luxuries any employee faces in the open market. The court also held that the issue of FDH maintaining bonds with the home country is not relevant because what the Basic Law requires is merely “ordinary residence.”

We Filipinos are used to seeing our courts decide highly contentious disputes. In Vallejos v. Commissioner of Registration, the Hong Kong courts faced precisely one such case where the “socio-economic and political implications of a particular outcome necessarily transcend the legal analysis of the issues.” The court then says: “But it is important that such public discussions should not be allowed to confuse the proper remit of the adjudicative function of the court in the case itself. In the performance of his judicial duty, a judge should always focus on, and only focus on, the legal merits of the issues which he or she has to determine.” As a Filipino law professor, I urge local judges to read the decision both for the nuance of its language and its careful reasoning.

The decision of the Hong Kong Court of First Instance will obviously not be the end of the story. The case will be appealed possibly all the way to Beijing, where a different interpretive tradition prevails and where the Basic Law, a constitution unto the Hong Kong Special Administrative Region, is but a statute unto the National People’s Congress.

I have read some of the arguments of the Hong Kong critics of the decision, who apparently have launched a signature campaign against the maids and garnered more than 90,000 signatures. One said: “We don’t think this is discrimination. We have rules, they come to Hong Kong just to make money.” But couldn’t this be said as well of all the “gweilos” who come to Hong Kong to enjoy job and business opportunities not available in the home country—and then we call one group “expatriates” and the other, FDH. And, typical of a legal system built on case-law, can the “just to make money” argument apply to Evangeline, who has invested 22 years of a life embracing a community that wouldn’t consider her its own?

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