By Vir B. Lumicao
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| Filipina domestic workers line up to process work contracts at the Philippine Overseas Labor Office |
A Filipina has launched a landmark
challenge in the High Court
against the The hearing of Nancy Lubiano’s application for a judicial review of the policy that was imposed by Hong Kong Immigration in 2003 began on Oct. 3 before Judge Stephen Chow.
Lubiano, who arrived in
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| A Filipina maid was made to sleep in this tny space in the kitchen |
Named respondent in the application was the Director of
Immigration. Lubiano is represented in the case by prominent human rights
solicitors, Daly, Ho and Associates.
The challenged is premised on the following grounds:
1) That
the Director of Immigration imposed the live-in requirement ultra vires, or outside the law. He has
no power to impose a limit to the conditions of stay, or a precondition to
issuing a foreign domestic worker’s visa, under section 11 of the Immigration
Ordinance.
2) That
the requirement for live-in accommodation is unconstitutional as it violates
the prohibition against servitude in the Hong Kong Bill of Rights, and the
international rule against forced labor. It also violates a worker’s rights
under the Basic Law to adequate rest and holidays, and heightens the risk of
breaching the fundamental human, labor and economic rights of helpers.
3) The
live-in requirement is discriminatory as it goes against the “protected characteristic
of the applicant as a ‘migrant worker’.”.
4) The
live-in requirement must be scrutinized under common law because its mandatory
aspect allowing only an “unadvertised and highly limited class of exceptions”,
is irrational.
Lubiano’s counsel, barrister Paul Shieh SC, spent more than
a day arguing against what he called an unconstitutional policy that is not in
the Basic Law of Hong Kong.
Shieh said his client – along with other foreign domestic
helpers – believe the live-in rule infringes on her right to privacy because
she is forced to endure unsuitable, inhumane or degrading accommodation.
The live-in rule also places FDHs in a vulnerable position
where they are unable to establish social contacts through which they could
seek aid or advice.
As well, their isolation in the homes of their employers makes them vulnerable to abuse, maltreatment or exploitation by employers and puts them at risk of doing forced labor, the lawyer said.
“The government should have considered the deleterious effect of the live-in rule on the foreign domestic helpers,” Sheih said, as he rued that
Arguing on the second day of the hearing, barristers Benjamin Yu, SC and Abraham Chan, SC took turns rebutting the arguments of Shieh. They said the live-in rule is based on law, and is actually intended to protect FDHs while serving their employers.
Yu also said that while there had been cases of assaults of FDHs by their employers, there was no evidence that they were caused directly by the policy.
As a matter of fact, he said there were more incidents of helpers getting hurt outside their place of work than those who were assaulted by their employers.
The lawyer also said that despite the live-in policy, a big number of foreign helpers - 108,199 of them - renewed their work contracts in 2016.
Due to the protracted arguments, the hearing originally set for two days will continue on Monday, Oct. 10.
