Dec 02, 2022

Of Filipina OFWs and 'Diplomatic' Slavery

NOV 19, 2022 12:01 AM


WHETHER paid in British pounds, US dollars or Saudi riyals, a slave is still a slave.

In the 21st century, human trafficking is the third most illegal activity in the world after gun smuggling and drug trafficking. According to the International Labor Organization, an estimated 3.4 million domestic workers render services in circumstances indicating forced labor, and when the total of their salaries are compared to those working freely, there is a difference of nearly $8 billion.

The Philippine labor diaspora props up our economy, enables our children to have the wherewithal to obtain an education, and oftentimes support the wayward habits of erring spouses.

However, it exacts a heavy toll that far too many unfortunate Filipinas have to pay. Their unspeakable predicament takes me to a lawsuit recently decided by the Supreme Court of the United Kingdom (UK), the Basfar vs. Josephine Wong case. The plaintiff, Josephine Wong, is a Filipina. The lawyer who represented her referred to the decision as a "world leading judgment" since the UK is at the forefront of all countries in the world taking a stand against diplomats who abuse domestic workers.

The accepted definition of trafficking is contained in the Palermo Protocols, which states that it is "the abuse of power or of a position of vulnerability... for the purpose of exploitation." Exploitation includes forced labor or slavery or practices similar to slavery or servitude.

Wong worked for a Saudi diplomat named Khalid Basfar, who was a member of the diplomatic staff of the mission of the Kingdom of Saudi Arabia in the UK. Wong claimed that she was a victim of human trafficking and was exploited to the hilt by Basfar and his family under circumstances akin to modern slavery. She filed a case in the Employment Court of the UK.

Wong claimed that when she was brought by the family of Basfar to the UK, her contract was to work for eight hours a day, yet she was made to work from 7 a.m. to 11:30 p.m. every day. Worse than a dog, she was made to wear a collar with a doorbell 24 hours a day, which enabled her employers to summon her at any hour of the day or night. She was not paid the minimum wage and did not receive her salary at all for seven months. She was not allowed to leave her employer's house and was permitted to talk to her family only twice a year using Basfar's phone. The Basfars shouted at her incessantly and hurled unprintable insults. She was made to sleep in a cupboard and like a dog was fed leftovers.

When Wong filed suit, Basfar took refuge in his being a diplomat thinking that would make him immune from the jurisdiction of the courts or tribunals of the UK. To Basfar's chagrin, the Employment Tribunal held that his claim to immunity by virtue of the Vienna Convention on the Law of Diplomatic Relations is unmeritorious.

Although the said Convention does grant Mr. Basfar absolute immunity from criminal, administrative and civil jurisdiction, there are three exceptions to the rule, one of which is the following: Actions related to any professional or commercial activity exercised by the diplomat outside his official functions are not covered by diplomatic immunity. The key question here was whether the employment of Josephine Wong was indeed a "commercial activity."

Almost the same issue reared its head in the case Reyes vs. Al-Malki, which also involved a Filipina. The difference was that in this case, Al-Malki was no longer posted as a diplomat in the UK. Therefore, there was no need to rule on the question of diplomatic immunity.

Since Reyes' employer was no longer in his post, he was no longer entitled to diplomatic immunity guaranteed by the Vienna Convention. Although he had functional immunity, that is to say, his immunity related only to his functions, the judges of the Supreme Court of the UK ruled that the employment of Reyes and her maltreatment were not performed in the exercise of Al-Malki's functions as a member of the Saudi Arabian mission. Therefore, he had no immunity.

In the Basfar v. Josephine Wong case, the Supreme Court of the UK held that the latter's exploitation was a systematic long-term activity from where Mr. Basfar obtained "substantial financial gain." A contract of employment is a commercial activity since the employer receives personal services from the employee, under the terms of the contract of employment. In other words, the employer participates by employing the victim and the profit element is satisfied by the financial benefit the employer obtains because of the exploitation of the employee. Thus, Mr. Basfar may be sued in the Employment Tribunal of the UK and his claim of immunity would be unavailing.

Although not all foreign employers are cruel like the diplomats Messrs. Basfar and Al-Mahkli — servitude and bondage — under whatever kind of master or mistress, is still bondage and slavery, even if they are imposed by those claiming diplomatic immunity under a treaty made in Vienna.

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