2ND LEAD

Torture is systemic in Sri Lanka, HK Court sends chilling message

[TamilNet, Saturday, 13 April 2013, 10:02 GMT]
Giving additional impetus to world-wide protests of Tamils against the gross rights violations, including torture, on Tamil civilians by Sri Lanka security forces, and reinforcing that torture is endemic to Sri Lanka's oppressive state apparatus, and systemic across successive Sri Lanka governments, Hong Kong's appeals court granted asylum to two Tamil men, declaring that the men face torture and can claim "well-founded fear of persecution" if returned to Sri Lanka, reports from Hong Kong, a special administrative region of China, reveal. The two Tamils are believed to be the first and the second to win appeal cases since a new appeal process was set in place in 2009 in Hong Kong. The first man arrived in Hong Kong in 2003, at age 20. The names of the two were not made public due to security reasons, reports said.

Paper: Well-founded fear of persecution

"While Sri Lankan obstructionism has temporarily paralyzed the formation of a post-Mu'l'livaaikaal tribunal to adjudicate the jus cogens norm violations perpetrated by the Rajapakse administration, the international crime of State-sponsored torture targeting Tamils fleeing racial persecution on the island continues to accrue recognition in the global corpus of Tamil asylum case law, from France to Canada and beyond," spokesperson for Tamils Against Genocide [TAG], a US-UK based activist organization that seeks legal redress for Tamil victims of war, said.

"In contradistinction to the fate of nearly 19 Tamil asylum seekers in UAE, Hong Kong has affirmatively enforced the principle of non-refoulement in their determination that a well-founded fear of future persecution via torture exists today in Sri Lanka, even though the asylum seekers entered Hong Kong in 2003," TAG added.

"The various methods of Sri Lankan torture as applied to Tamils in custody of the majority-Sinhala security establishment range from electrocution, asphyxiation by petrol fumes, to sodomy, and have been developed across multiple Presidential administrations, thereby satisfying the criteria for individual and state criminal responsibility," TAG further said.

Mark Daly - lawyer for the Tamil involved in the Hong Kong appeal, said the case "lends some credibility to the process". The Torture Claims Appeal Board had received 1,335 appeals by the end of last year, according to South China Morning Post. While it means he will no longer face repatriation, Daly said his client's rights in Hong Kong remained "minimal" and his future was still unclear.

"The independent appeal board was set up to hear a fair independent appeal. If the director of immigration rejected their claims, claimants have the right to appeal to this board. It is an important procedural safeguard," the paper quoted Daly as saying.

The appeal board - a panel of former judges and magistrates - is part of enhanced torture-screening mechanisms introduced by the government following a 2008 case in which the Court of First Instance ruled the then screening process failed to meet high standards of fairness.

Peter Barnes, the attorney for the second Eelam Tamil to be granted asylum, said, "[o]bviously, it's good news for him, but it's also good news for the system, which has finally recognised that there's a person who's in need of protection. I hope that now they've recognised one, they'll be prepared to recognise others who are equally deserving of protection," Barnes said.

Both attorneys are from the same law firm Barnes & Daly.

Hong Kong began applying the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The first claim was approved in 2008.

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External Links:

UN:		Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CMP:		Hong Kong grants torture claimant protection; only the second ever
CMP:		Sri Lankan first to win Hong Kong asylum under new appeal process