Fang v Jiang [New Zealand, High Court.]

JurisdictionNew Zealand
CourtHigh Court
Judgment Date21 December 2006
Date21 December 2006

New Zealand, High Court.

(Randerson J)

Fang and Others
Jiang Zemin and Others1

State immunity Jurisdictional immunity Torture Whether State immunity applicable in cases of alleged torture Convention against Torture, 1984 United Nations Convention on Jurisdictional Immunities, 2004 Whether any torture or jus cogens exception to State immunity

Sources of international law Domestic law Principles of development and evolution of international legal norms State immunity Whether national courts free to develop new exception to State immunity The law of New Zealand

Summary: The facts:The plaintiffs, who were resident in New Zealand, alleged that between 1999 and 2002, while they had been living in the People's Republic of China (the PRC), they had been tortured by PRC authorities as part of a systematic campaign against practitioners of the Falun Gong movement. The defendants were alleged to have been involved in directing and implementing the campaign and to bear responsibility for the alleged acts of torture. Leave for permission to serve proceedings outside the jurisdiction was refused and the plaintiffs challenged that decision.

Held:The application for review was dismissed. The defendants were entitled to State immunity. The United Nations Convention against Torture provided for universal criminal jurisdiction in cases of alleged torture but did not do so for civil proceedings. International law did not contain any torture or jus cogens exception to State immunity and New Zealand was not free to develop an exception to the well-recognized immunity principles in international law. International law developed and evolved over time and New Zealand's common law reflected international law gathered from the established sources of international practice, treaties, conventions, judicial decisions and scholarly writings (paras. 1576).

The following is the text of the judgment of the Court:

1. The 11 plaintiffs in this proceeding are now all residents of New Zealand. They allege they were tortured by state authorities while

living in the People's Republic of China (PRC) between 1999 and 2002. They say this occurred as part of a systematic campaign adopted and implemented by the PRC Government against practitioners of the Falun Gong movement.

2. The first defendant is the former President of the PRC; the second defendant is the former Vice-Premier of the State Council; and the third defendant is and was a member of the Politburo of the Central Committee and Secretary of the Political and Judiciary Committee of the Central Committee. All are said to have been involved in directing or implementing the campaign and to bear responsibility for the alleged acts of torture.

3. Damages and declaratory relief are claimed for unlawful arrest and detention, assault and battery, malicious abuse of office, and conspiracy to injure.

4. The proceeding has not been served because leave is required to serve out of the jurisdiction under r 220 of the High Court Rules. The plaintiffs applied ex parte for such leave, but Associate Judge Faire declined the application in a judgment delivered on 17 June 2005. The Judge considered the claim lacked any real or substantial connection with New Zealand and was doubtful that the supporting evidence then available was sufficiently cogent to establish a good arguable case. He also declined to reach any conclusion as to whether the plaintiffs could obtain justice in the PRC.

5. Importantly, Judge Faire was not asked to decide whether the defendants would be entitled to invoke state immunity should leave be granted to serve them. That has now emerged as the key issue I have to decide.

6. The plaintiffs now seek to review Judge Faire's decision under r 61C of the High Court Rules, but there have been several developments since Judge Faire's decision which compel me to deal with the application for review as if it were a fresh application for leave under r 220. The plaintiffs have since filed an amended statement of claim and each has filed an affidavit confirming the acts of torture to which they claim to have been subjected. As well, I granted leave to the Attorney-General to intervene given the ex parte nature of the application for leave to serve overseas and the need to consider the difficult issue of state immunity. I also appointed Mr Harrison as amicus to assist the Court generally.

7. When this matter was heard before me in April this year, the plaintiffs relied heavily on the decision of the English Court of Appeal in Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya Saudiya (Saudi Arabia)ELR[2005] QB 699. The Court held in Jones that although the Kingdom of Saudi Arabia was entitled to claim state immunity in respect of a civil claim brought in the English Courts for alleged torture, there was no blanket immunity for the individuals involved. It was known this decision was under appeal to the House of Lords. So I reserved my decision, subject to all counsel having the right to file further submissions after the decision of the House of Lords was received. On 14 June 2006, the House delivered its decision reversing the Court of Appeal and finding state immunity was available to the individuals involved as well as the Kingdom ([2006] 2 WLR 1424).

8. All counsel have since filed further submissions, the last of which were received on 25 September 2006.

9. Without expressing a view on the merits of the plaintiffs' claims, the Attorney-General informed the Court that the New Zealand Government condemns acts of torture wherever committed. The Attorney-General intervened to make submissions on the issue of state immunity and on the jurisdictional requirements of r 220. It was submitted on the Attorney-General's behalf that the defendants were entitled to claim state immunity against the plaintiffs' claims and that it was not appropriate to grant leave to serve the defendants under r 220.

Application for Leave under r 220Principles

10. Where leave is sought under r 220, the onus is on the applicant to show that New Zealand is clearly the most appropriate forum (Society of Lloyd's & Oxford Members' Agency Ltd v. Hyslop[1993] 3 NZLR 135 (CA)). The applicant must establish a good arguable case since foreigners are not lightly to be subjected to the jurisdiction of the Court (Kuwait Asia Bank EC v. National Mutual Life Nominees Ltd[1990] 3 NZLR 513 (PC)). The Court also considers whether the case has any real and substantial connection with New Zealand. Ultimately, the Court has a discretion whether to grant leave and issues of forum conveniens and overall justice are relevant (r 220(4) and Spiliada Maritime Corporation v. Cansulex Ltd (The Spiliada)ELR[1987] AC 466).

11. There was some discussion before me about the meaning of the phrase in r 220(1) In any other proceeding which the Court has jurisdiction to hear and determine. This was discussed by Hardie Boys J in Cockburn v. Kinzie Industries Inc. (1988) 1 PRNZ 243, where the Judge held that r 220 is to be read as enabling the Court to grant leave, and so assume jurisdiction, in every proceeding not covered by r 219 that it would be entitled to hear and determine were the defendant in New Zealand. I accept there are potential difficulties with this formulation but, on the view I take of this case, I need not venture further into that issue.

Matters Not Challenged

12. The Attorney-General did not express any view on the substance of the plaintiffs' claims, but I am willing to assume for present purposes that the plaintiffs have a good arguable case based on the material presently before the Courtsubject, of course, to the issue of immunity. Tortious claims of the kind pleaded are actionable in New Zealand and in the PRC. Mr Lawrence for the plaintiffs relied on Arts. 33, 35, 36, 37, 38, 39 and 41 of chapter 2 of the PRC Constitution (The Fundamental Rights and Duties of Citizens) and Arts. 5, 8, 10, 119, 120 and 121 of the General Principles of the...

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