Saturday, February 24, 2007

Security risk certificates overturned in Canada

For the last four years, Algerian refugee Ahmed Zaoui has been detained under a Security Risk Certificate issued by the SIS. Initially held in solitary confinement in Paremoremo prison on the basis of a police threat assessment deemed "not well considered nor well constructed" by the Police Complaints Authority, he is now on bail but still subject to substantial limitations on his liberty. Meanwhile the process for review of the SRC has stalled due to the SIS refusing to comply with court orders to supply its evidence to its own Inspector-General.

Meanwhile, in Canada, the Canadian Supreme Court has unanimously found their security risk certificate process - which is very similar to ours - to be "hopelessly flawed" and a violation of the Canadian Charter of Rights and Freedoms. Specifically they found that:

  • the process used for determining the reasonableness of the security risk certificate - in which the person detained is denied access to the evidence against them, and hence any ability to effectively challenge the government's case - was unfair, one-sided, and infringed the principles of fundamental justice affirmed in section 7 of the Charter;
  • the initial detention itself was not arbitrary; however the lack of review of detention for foreign nationals (they must wait until 120 days after the SRC has been upheld before being able to review their detention) violated the right not to be arbitrarily detained affirmed in section 9 and to habeas corpus affirmed in section 10(c);
  • The potential for prolonged (and effectively indefinite) detention without review violated both the right to justice and the right not to be subjected to cruel and unusual treatment under section 12 of the Charter.

The money quote - and the latest in a long series of similar statements from other judicial bodies in the face of government excess in the wake of September 11 - is

security concerns cannot be used... to excuse procedures that do not conform to fundamental justice.

The Canadian Parliament now has a year to fix the law so that it conforms to the Charter. Their most likely way of doing so is by making legislative provisions for the use of "special advocates" - a system found to be "critically flawed" in the UK.

There are obvious parallels here with the Zaoui case, but probably not so many implications, as the substantive issues (detention and review) have already been settled by successful court challenges and the voluntary appointment of a special advocate by the Inspector-General. However, the decision is likely to have strong implications for the treatment of any future detainees. while there are differences, the relevant sections of the Canadian Charter are practically identical (the big difference is that they explicitly make any deprivation of liberty subject to "principles of fundamental justice" in section 7; we instead affirm an overarching right of natural justice in s27 BORA). So any future detention, or any attempt to strip judicial review from the law, will run smack bang into this precedent, which while not binding, is likely to be paid close attention by our own judiciary.

Unfortunately, there is one very important difference between New Zealand and Canada. Canada has (at least de facto) constitutional sovereignty, meaning that the courts can declare laws to be inconsistent with the human rights affirmed in the Charter and strike them down. Here, we still suffer under Parliamentary sovereignty, meaning that Parliament can ignore the courts and the affirmations inthe BORA mean nothing. It is long past time we fixed this, and ensured that our Bill of Rights is actually enforceable. Where fundamental freedoms are concerned, the goodwill of elected representatives is as untrustable and worthless as the goodwill of kings.


In reference to your last point, I take it that you would substitute the goodwill of our elected representatives for the goodwill of an odd number of judges/philosopher kings. There's no guarantee that judges will necessarily reach the correct ("liberal") outcome in any given rights dispute either.

I would also point out that having an entrenched set of rights isn't the be all and end all either. Case in point: the United States - has an entrenched constitution and bill of rights, counter-terrorism policy still gets a lot of grief from you.

Posted by Unknown : 2/24/2007 03:02:00 PM

I think that judges in Commonwealth and European jurisdictions which adopt some form of constitutional sovereignty have a good record of applying said constitutions in a logical and consistent manner. A good example of this would be A and others v. Secretary of State for the Home Department where Lord Hoffmann memorably declared that "I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation".

The problem with the US, besides the fact that it's constitution was written in the 18th century and has not adequately evolved, is the nature of the appointment process for judges. Rolling political appointment has lead to the appointment of judges who have been capable of some extraordinary twisting of language to fit the prejudices of the day.

I'd argue that the best safeguard is to have a dual process of national and international courts of final appeal, as in Europe. Unfortunately there is no suitable body that NZ could defer to, unless the ECHR could be persuaded to permit non-European members.

Posted by Rich : 2/26/2007 10:01:00 AM