RE JKF

HCAL 42/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 42 OF2013

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JUDGMENT

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Introduction

1.  The applicant is a Convention Against Torture (“CAT”) claimant.  In nutshell the applicant’s CAT claim is based upon past domestic violence which provides substantial grounds for believing that the applicant would be in danger of being subjected to domestic violence if returned to Sri Lanka.  Her application was refused by both the Director and the Adjudicator for the reason, inter alia, that her past and future risk of, severe pain and suffering was not within the definition of torture.  She now applies for leave to judicially review those decisions.  Being unwilling to grant her application on the papers I held an oral hearing at the end of which I reserved my judgment which I said I would hand down at a later date.  This I now do.

The Application for Leave

2.  The applicant is from Sri Lanka and is a married woman.  She and her husband and his family have different political affiliations and he and his family are actively involved in the political party which they support.  She refuses to support him in his, and his family’s, political activities.

3.  For this and other reasons their marital relationship became strained and the husband became physically abusive.  His level of violence arguably amounts to torture.

4.  Of course, merely being at risk of “severe pain and suffering” is not enough to transform domestic violence into torture.  Torture is defined by Article 1 of the Convention as follows:

“For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

5.  Thus, there must also be the element of State involvement and the applicant seeks to rely on the concept of extended State acquiescence in order to satisfy this element.  It is the applicant’s argument that the inability of the Sri Lankan government, through its law enforcement agencies, government departments and judicial organs, to provide protection to the applicant is due to a failure to exercise due diligence to prevent, investigate, prosecute and punish acts of domestic violence.  A failure to exercise due diligence, it is then said, makes the State responsible for the acts of its officials who should be considered as consenting to or acquiescing in the impermissible acts by which severe pain and suffering are inflicted on the applicant.  By this route the domestic violence of private persons become acts “inflicted … with the consent or acquiescence of a public official or other person acting in on official capacity”.

6.  It is argued that neither the Director or the Adjudicator considered the extended concept of State acquiescence when concluding that the applicant’s domestic violence did not come within the definition of torture.

7.  There are other grounds of review but they are irrelevant if the applicant cannot succeed on this ground.

Discussion

8.  In order to obtain leave on this ground the applicant has to show she has a reasonably arguable claim which enjoys realistic prospects of success.[1]

9.  The applicant’s claim on the extended concept of State acquiescence takes as its starting point the statement in paragraph 18 of the General Comment No. 2 issued by the United Nations Committee Against Torture which says:

“The Committee has made clear that where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to State parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking.”

10.  For the purpose of this judgment only I shall assume that this passage encapsulates the elements of the extended concept.  The applicant then focuses on the words “and they fail to exercise due diligence to prevent, investigate prosecute and punish such non-State officials or private actors consistently with the Convention …” and argues that there is a failure of due diligence whenever there is a failure to protect.  Thus, no matter how well intentioned the government is, if its mechanisms of government, its police, government departments and judicial organs are ineffective, then there is a failure of due diligence.

11.  This is a bold argument which to some extent is forced upon the applicant by the fact that the Sri Lankan government has recognized the problem its society has with domestic violence by enacting specific legislation to deal with it.  Whilst accepting that such legislation is in place, Mr Lam for the applicant submits that the enforcement of this legislation is ineffective. He refers to comments by the Human Rights Asian Commission in a news article dated 8 October 2010.  In order to obtain the full flavour of the article it is necessary to quote it at some length.  The Commission said:

“In Sri Lanka a new law on domestic violence. The Prevention of Domestic Violence Act, came into operation on 3 October 2005. The Act is the outcome of years of struggle by different women’s group throughout the country.

While the legislation is there, the effectuation is not. The gap between the rights set out on paper and the daily life in the household is tremendous. The problem is not a lack of legal instruments to protect women and girls from violence including the domestic sphere.[2] …

Neither is it a problem of lack of institutions to ensure the enforcement of the declarations. Many state institutions and private organizations have been established to work on the matter …

However, the framework does not correspond with society. Culturally Sri Lanka is a male-centred society and although women in the large cities have become more educated and independent, especially families in rural areas, from cultural minorities or lower castes are still very male dominated with domestic violence being more prevalent. The courts are by no means minority, gender or child sensitive and discrimination and harassment are daily fares in the legal system. …

This perception of women and their family roles penetrates most of the Sri Lankan society including police stations, which are often very male-dominated. Generally there is a little trust in the police system and many people fear to go to the stations to make any kind of complaints. It has long been a requirement that police stations contain a separate union (sic) for women and children with female officers attached, but while most stations are undermanned there are no resources to maintain the units.

The police do not consider domestic violence a serious matter and especially in undermanned stations they are likely to neglect cases of domestic violence or put them low on the priority list. The husband might have connections in the station or be an influential person in the area. As a result, the enforcement of a PO [3] is a major challenge. Even though a police officer has the authority to issue a PO on an aggrieved person it is very unlikely he will do so. …

Another big challenge of the effectiveness of the Act is the lack of victim protection. Most women depend almost solely on their partner economically. They have no means to provide housing for themselves and their children or to sustain their livelihood, which means the alternative to a violent husband is homelessness. …

The Prevention of Domestic Violence Act is a great step forward for the recognition of the rights of women and the problems within the perception of the social hierarchy of families in Sri Lanka. However, cultural patterns that have existed for centuries cannot be transformed overnight. …

As with so many other pieces of legislations in Sri Lanka like the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified in 1980, the Act itself does not change a society’s perception.  The changes come with the implementation of the Act in actual practice.  It is an obligation of the Sri Lankan state to support and protect the rights of women, establish and upgrade facilities and secure proper remedies for the victims of domestic violence in Sri Lanka.”

12.  Certainly, there is evidence in this article, and the other country materials placed before me, that the government’s efforts to implement and enforce the legislation are not always effective, but the evidence does not go so far as to show that those efforts are completely ineffective.  What is evident from the country materials is that there is no suggestion that the government is not genuine in its desire to address the problem or that the legislation is mere window dressing which the government has enacted simply to make it compliant with its international obligations and to enable it to present the appearance that it is active in dealing with this social problem.

13.  Rather, the picture portrayed by the country materials is that the government’s efforts in addressing the problem of domestic violence are being frustrated by cultural problems associated with the dominant position that men occupy in Sri Lankan society, indifference by certain groups to the problem and incompetence or resourcing problems in responding to domestic violence.

14.  However, again for the purpose of this judgment, I shall assume that the country evidence allows of the conclusion that notwithstanding the good intentions of the Sri Lankan government to address the problem of domestic violence, the machinery of its government is unable to prevent such abuses from happening and this inability provides substantial grounds for believing that the applicant would be in danger of being subjected to such abuses should she be returned to Sri Lanka. The question then becomes whether such a state of affairs is sufficient to constitute a failure of due diligence so as to make the State and its officials “responsible under the Convention for consenting to or acquiescing in such impermissible acts”.

15.  In my view it unarguably is not.  Every society struggles to come to grips with its problems and sometimes dealing with and overcoming those problems involves many challenges, such as a change to culturally embedded attitudes. This cannot be expected to happen overnight.  Furthermore, when these challenges are being tackled in the developing world, governments are faced with issues of limited finances, allocation of scarce resources and training of government personnel.  All these challenges are likely to be exaggerated when a country has recently emerged from a protracted civil war.  In my view, a government genuinely striving to deal with all these problems cannot be said to be acquiescing in the impermissible acts.  Firstly, it is not showing indifference to, or inaction in respect of, domestic violence; quite the contrary, it is recognizing it as a problem and striving to deal with it.  Secondly, the fact that its efforts to address this social problem are not wholly effective does not, by that fact alone, mean that the government is de facto permitting the domestic violence to take place so as to facilitate and enable those perpetrating these acts to do so with impunity.

16.  Consequently, although I accept that the Director and the Adjudicator did not consider the extended concept of State acquiescence, I am of the view that even if they had, they could not, on the material placed before me, have concluded that any acts of domestic violence inflicted on the applicant (that might cause her severe pain or suffering) would be consented to or acquiesced in by the Sri Lankan government, or its officials.

Conclusion

17.  I therefore refuse the application for leave to judicially review the decisions of the Director and Adjudicator in respect of this applicant’s CAT claim.