Generation 40s – 四十世代

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Government must recognise abuse of Hong Kong’s domestic helpers and broaden protection

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South China Morning Post
Comment›Insight & Opinion
2015-02-12

Robert Tibbo

Robert Tibbo says the government must stop deluding itself that the abuse of Erwiana was an isolated case, and take steps to broaden protections for all foreign domestic helpers

The former employer of Erwiana Sulistyaningsih was convicted in the District Court on Tuesday of a multitude of violent crimes that left the Indonesian domestic helper a shell of her former self. The physical and psychological abuse she endured was horrific. She had little left in terms of her physical integrity and fought hard to hold onto her humanity.

Yet, since Erwiana’s case came to light barely a year ago, the Hong Kong government has taken little to no action to constructively address the inequities, discrimination and risks that foreign domestic helpers face.

The government continues to hold to the status quo position, arguing that the prevailing policies, legislation, administration and due diligence practices do not require any real change. Erwiana’s case exposed blatant shortcomings of the system, which regulates and supposedly protects foreign domestic helpers. And yet the government has been reluctant to take concrete steps to provide greater protection.

It is apparent that the government has treated Erwiana’s case as a one-off incident, a statistical outlier. It apparently continues to fail to recognise that Erwiana’s case is one of a multitude of cases of abuse of varying degrees suffered by foreign domestic helpers in Hong Kong. Such abuses include non-payment or partial payment of wages, denial of statutory holidays, psychological abuse, intimidation, and acts of violence, including sexual violence.

An Amnesty International report published in late 2013 found that almost 60 per cent of all foreign domestic helpers in Hong Kong were subjected to verbal abuse by their employers. Almost 20 per cent suffered violence at the hands of their employers and, in 2014, the Equal Opportunities Commission found that 6.5 per cent suffered sexual abuse.

Foreign domestic helpers being compelled by law to reside in their employers’ homes is the core of the problem that has allowed these abuses to take place, as they did in Erwiana’s case.

Previously, the government has said that, “the importation of [foreign domestic helpers] has been allowed to meet the acute and long-standing shortage of full-time live-in domestic helpers in the local labour market. Any change to the requirement that FDHs must reside in employers’ residences (the ‘live-in’ requirement) will go against the rationale for importing FDHs and the fundamental policy that local employees should enjoy priority in employment.”

This declaration is without evidential foundation and is a scare tactic to support this arbitrary policy. In recent weeks, the government has used its massive financial resources to arrest a small number of helpers who had been living outside their employer’s home. A few employers were also arrested. Had Erwiana been allowed to live out, it is highly unlikely that her former employer would have been able to torture her to the extent that she did.

Erwiana’s case is not the first of its kind; it is one in a continuing series of horrific crimes committed against foreign domestic helpers in Hong Kong by employers. This has, arguably, amounted to a consistent pattern of abuse and violations of foreign domestic helpers’ rights. Simply put, these are the consequences of systemic failings in law, policies and practices.

The government has a track record of avoiding, and at times even dismissing, the rights and legitimate concerns and interests of Hong Kong’s most vulnerable groups, even when voiced in public. The consequences of this reality have too often compelled those affected to bring legal challenges through the courts to secure their rights and interests, and to bring about changes in policy and legislation. Otherwise, the government does nothing.

The government was, and continues to be, embarrassed by the very public exposure of Erwiana’s case. On another level, there have been ongoing efforts by NGOs and migrant worker groups to engage the government, voicing concerns to bring about necessary changes in policies, legislation and administration in light of the crimes committed against Erwiana.

Despite the cumulative effects of public exposure and non-governmental groups exerting pressure, the government conveys a combination of reluctance and inability to bring about necessary change. Its past conduct in dealing with rights violations against the more vulnerable groups, including foreign domestic helpers, shows that the government is apparently continuing to struggle with the concept and practicalities of bringing about necessary change to the system.

Laws are not enacted by those in authority simply to control individuals, but should be formulated in light of the practical realities individuals face in pursuing their needs and interests. People have the capacity to do what is proper, fair and reasonable in managing their lives, including protecting themselves. The current policies and legislative framework regulating the lives of domestic helpers unfortunately tilt heavily towards an authoritarian regulatory regime.

This regime has allowed employers, who are in a position of authority, to commit a vast array of abuses on a more vulnerable and clearly defined social group. It has also led to an environment in which Hong Kong people have become bystanders accepting such injustices.

That is not to say that there are not good employers here, but the shortcomings in the system, as highlighted in Erwiana’s case and the report and statistics that Amnesty International published in 2013, have led to obvious and unacceptable abuses.

That regulatory regime prevented Erwiana from being able to protect herself. Hong Kong’s government and society failed Erwiana by failing to provide the fundamental protections she was entitled to, at a time when her safety and security were substantially compromised.

With Erwiana’s case, the judiciary has so far fulfilled its role in prosecuting Erwiana’s employer, but justice was required at a far earlier stage – before Erwiana was held captive and tortured.

If the government continues to fail to bring about the necessary changes to ensure that foreign domestic helpers are afforded the protections they are entitled to, including avenues for redress, it is certain that a number of judicial reviews and constitutional challenges, which have not yet been brought before the courts, will be introduced to force such changes to be made.

Robert Tibbo is a barrister-at-law and legal adviser to the Hong Kong Helpers Campaign

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