23 December 2013

Kong vs. Hong Kong 移民對居民


The Court of Final Appeal, the city’s highest court, handed down an unpopular judgment two weeks ago. Five justices unanimously ruled that the government’s seven-year residency requirement for welfare application is unconstitutional. In Hong Kong, “welfare” is formally known as Comprehensive Social Security Assistance (CSSA), which averages around HK$3,000 (less than US$400) per month per applicant. The meager assistance is meant to be a bare minimum to give the unemployed or the unemployable a subsistence living.

They got it right this time


Reactions to the court’s landmark decision poured in almost immediately. Social advocacy groups hailed the ruling as a victory in welfare rights for not only the immigrant community but all of Hong Kong. The rest of the city was not as thrilled. Many Hong Kongers see the lowering of the residency threshold as a threat to their existence, their tax dollars now robbed by newcomers. Netizens on Facebook and Golden Forum (高登), an online chat room and a windsock of public opinion, once again evoked the “locust” metaphor and accused Mainlanders of leeching off our welfare net. The Liberal Party (自由黨), run by plutocrats who are pro-business and anti-social programs, was quick to stoke the fire and criticize the judges for legislating from the bench. There were even calls for a “legal interpretation” by Beijing to overturn the court ruling.

The few good men who helped Kong


The lawsuit against the government was filed by Yunming Kong (孔允明), a 56-year-old Mainland immigrant whose Hong Kong husband died the day after she arrived in the city. Soon thereafter, the Housing Authority repossessed her late husband’s public housing apartment. Homeless and jobless, Kong applied for CSSA but her application was denied because she failed the residency test. 

Kong’s case is not atypical. Every year, tens of thousands of Hong Kong men cross the border in search of Mainland brides. Once married, the husbands will apply for immigration papers to have the wives join them in Hong Kong. Adult females now account for 65% of all new immigrants granted a “one-way permit” (單程證) to enter the city. For the most part, they depend on their local husbands until the latter either die or file for divorce. It’s not easy for widows and divorcées to find work in Hong Kong, especially since their Cantonese is limited and some have children to look after. Government assistance is often their only way out. 

The claimant Kong Yunming, now 64


The Basic Law, Hong Kong’s mini-constitution, guarantees all residents, old and new, the right to social welfare. Article 36 stipulates that the access to government assistance be granted “in accordance with law.” The qualifier is broad and vague, and perhaps deliberately so, to give judges latitude to decide what is equitable. As is the case for many constitutional cases, the justices hearing Kong’s claim relied on the “proportionality test” to weigh the impact of a government policy on the claimant against the public interests it serves. In 2004, while the city was still reeling from the ravage of SARS, Tung Chee-Hwa’s government raised the CSSA application threshold from one year to seven years with the explicit policy goal to cut public spending. In determining whether the increased residency requirement should be struck down or at least reinstated to its pre-2004 level, the justices struck a balance between Kong’s survival and the long term sustainability of the welfare net. What ended up tipping the balance in favor of the claimant is that the policy change, by the government’s own admission, has yielded insignificant and “immaterial savings in the past 10 years. On the other hand, its impact on welfare applicants like Kong is disproportionately great.

Protestors against the court ruling


Any law student can see that Kong Yunming vs. The Director of Social Welfare is a slam dunk, a no-brainer. The legal analysis becomes even clearer when Article 36 is read in conjunction with the rest of the Basic Law and the Bill of Rights. The only surprise is that the regressive policy change targeting a specific segment of society went unchallenged back in 2004. 

But none of that matters to the local population, who tend to lose their sense of right and wrong whenever their financial interests are – or appear to be – at stake. We have seen that “us-versus-them” mentality earlier this year when the Court of Final Appeal denied domestic helpers the right to seek permanent residence. Whether it is a Philippine maid or Mainland immigrant, our xenophobia defies logic and facts. Government figures have shown that a vast majority (over 85%) of welfare applicants are native Hong Kongers and, far from lazy freeloaders, immigrants are known to work harder than their local counterparts when put on the same jobs.

One of the parody posters posted online
portraying new immigrants as leeches

Then there is the slippery slope argument. Many Hong Kongers fear that the recent court ruling would open the floodgates and lead to the easing of application criteria for much more scarce resources like public housing. That may well happen and it is a bridge we must cross when we get to it. After all, there is a price to pay for living in a democracy. Like it or not, when new arrivals settle in Hong Kong, the distinction between “us” and “them” falls away. If we are unhappy with an immigration policy which the city has no say in setting up or modifying, then by all means take it up with the Liaison Office or Beijing; but don’t take it out on those who enter the city legally and make them the scapegoats for our systemic failures. To argue otherwise is not only racist but also downright foolish.  Then again, we witness this kind of foolishness every day when people blame traffic jams and overcrowded malls on Mainland tourists instead of our government’s border control. It’s time we stopped acting like fools.


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This article also appears on SCMP.com under Jason Y. Ng's column "As I See It."


As posted on SCMP.com



11 comments:

  1. Can't agree more!

    Andrew

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  2. I like the title of the article and I started to agree I should stop acting like a fool.

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  3. As usual, an excellent article - Jason, and a hot debatable topic worth a thousand words for Hong Kongers to introspect on. Much as I would like to say...Hong Kong is at the crossroad of alignment to one country. There is no turning back, but to do or die like the charging brigades.

    The constant and undeniable conflicts on our values of love-hate relationships with Mainlanders ( and to some extent, others like Filipinos and South Asians ) that spurned up all kinds of challenges for our Courts to uphold the rule of law vary from immigration, right of abode to social security etc...It will be a never ending story.

    It is not any surprise to find in our pipelines - already flooded with more emerging challenges line-up when our mini-constitution (The Basic Law) is so fragile and loosely written up that gives all probable intents to facilitate different people with a different interpretation, meaning, explanation etc, to what it's truly open, fair and just in society at large.

    It is not peculiar but interesting to see how things get unfold in our society whenever a new judgement of contention gets presided by the Court. How the HKSAR Government officials and others come out and jump up to defend and spilled out their own versions of interpretations or explanations, with some points of view out of the mark.

    Let's keep our abated breath to see what administrative procedures the HKSAR government will implement now to handle this and other challenges - just like tidal waves flooding in at our doorsteps with the ruling.

    Martie

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  4. Some fancy talks we have here.

    I wonder do the people posting here realize that they are writing in a language that most HK natives do not use, let alone understand?

    In a sense, all the money spent on the English-language side of HK's legal and court systems is a waste of public fund.

    Like it or not, within our lifetime, in about 33 years, all the last remaining of British-colonial-ways-of-doing-things will be scraped as we agreed on the 1997 Handover joint declaration with the Brits.

    By then, the people ranting here will be retired back in the perspective country where their current passports are issued from.



    HKBC


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  5. Bloggers and reader followers here and elsewhere have their own choice to write and rant. Whether fancy talks or not here is anyone's reading.

    Let that doomsday come in about 33 years and then everyone will naturally see the outcome. Currently, there is no pressing need from anyone to issue a pre-warning about that. Horse racing and dance will continue till then, so the saying goes. Ironically, is there a problem to write in a language that most HK natives do not use, let alone understand ? Wonder if that's an offence or illegal.....Also, all Brits' things, new and old, will be scrapped then ( 50 years after July 1, 1997 ) and not scraped - good one !!!

    People who post their comments here do so at their free will, without wonder or realization or for the sake thereof. If it is not your cup of tea, that's fine - afterall, Hong Kong is still a free society and one still has the freedom of expression of mind.

    Wonder why would people need direction to retire back in their perspective country ? I beg your pardon, do you mean respective country ?

    It's a pity that Hong Kong legal system is still highly dependent on Common Law with the use of English Language as its bread and butter. Whether it is seen as a waste of public funds and taxpayers money, it's judgemental and upto anyone's interpretations. Probably, still a fancy talk......till then.

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    1. To whoever you are:

      No need to do any nitpicking.

      By the way you write, you sound like a "carpetbagger".

      Chill out, my friend.

      I must have hit a raw nerve.

      I do understand your frustration and rage.

      I would probably feel the same way--perhaps not to such a high intensity--as you do if the way of life I cherish and the social status I enjoy in HK will vanish in a matter of a few decades.

      Do not lecture me on freedom of speech. Along with many of my fellow HK Chinese, I've fought and risked everything I have to protect and keep the very freedom you now enjoy. Freedom is not free, my friend. So far, I have at least paid part of my share.

      You need to show some respect and appreciation to the natives who do not speak the same language you do.



      HKBC






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  6. I just noticed that 85% of native Hong Kong residents are granted of welfares. I understand your standpoints and got sth jumping into my mind. A few years ago, Hong Kong travelers suffered tsunami in Thailand. The propaganda reported that a couple from HK were found dead. They actually were welfare applicants but just pretended to get divorced for application...

    Nerys

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  7. Exactly. Hong Kong people are being more ethnocentric now than I thought.

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    1. If I may, "ethnocentric" is not quite the right word.

      It's simply that the younger generation of HK natives has become more educated and now started to speak out about the wrongs of the past.

      We are now living in a different era.

      To say it bluntly, we don't want to take shit from these "carpetbaggers" any more.

      Who are the ones we can count on to say anything about it----the ugly racism, insults, inequalities, etc. ?

      Answer: Certainly not people like Mr. "Martie" Lee or Christine here.



      HKBC





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  8. JYN so far has done a better job than other commentators of his argument on Kong’s case. He managed to provide us a quick glance of CSSA policy change and a demographic background skimply though of one-way entry immigrants. He too gave us the reader to understand the proportionality dynamic that may have supported the highest court’s decision in favor of the plaintiff.

    JYN also is aware that housing for the one-way immigrants must be provided. However, he dismisses it as something that may well happens but to deal with when it happens. Unfortunately, it shouldn’t be so. JYN wrongly justifies that it is a price must be paid for democracy. It is more like irresponsible way of using democracy for immigration when a society is ill prepared. There should be statistics to lay bare how many of these immigrants have or are waiting to take up new housings while families are crouching in divided flats. We must also have stats how many jobs have become low pay jobs occupied by new immigrants displacing the locals.

    But Hong Kong government I believe is hiding these numbers and without making them available to the public, no comments are complete and valid. Therefore, no public is able to oversee government’s policy usefully.

    Stats aside, we must also use a bit common sense to accept the principle that immigrants shouldn’t cause or add irresolvable burdens to a society. Even US, a fervent believer in democracy with mostly an open door policy for immigration; but it requires sponsors to show evidence of ability to care for the applicants who aren’t investor type.

    I agree with JYN that a society should treat everyone equal. Immigrants once cross that Luwu Bridge, they are one of us. Is Hong Kong ready to do that?

    Johny

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  9. Some HK people might not notice a small group of immigrants. They are originally from China and immigrate to HK from overseas to work as experts. They're paying more taxes than locals at the same position, because their parents are not HK residents and there is no allowance claimed for them when filing annual tax return. They are not having a western face, therefore, they're not getting highly paid as those western coworkers.

    I've heard a case that the Chinese guy and his family were arranged living in a hotel run by a non for profit agency. They found a cockroach in the bathroom. He came to teach in a university.
    The other one is an American as a NET teacher, was invited to a four star hotel, which became a sweet memory for them.
    The previous family doesn't have housing allowance, while NET teachers do.


    It's kind of silly to make a conclusion before looking at the whole picture of the immigrants in HK. This group of tax payers are paying more taxes and contributing more than a lot of locals.

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