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Gordon Campbell: Zaoui - How It Ends

The Zaoui hearing is now in recess, for the entire week. Last week, SIS Inspector-General Paul Neazor heard from the two most important Zaoui defence witnesses. Namely, Professor George Joffe, the leading expert in North Africa studies from Cambridge University - and Colonel Muhammed Samraoui, the Algerian regime’s former head of intelligence in Europe. The review will now take a break to digest this information, and return for another two week session of witnesses and unclassified information.

Publically, Neazor has said he wants his decision in the hands of Immigration Minister David Cunliffe by Christmas. To meet that timetable, the following things have to happen like clockwork. The defence team’s submissions on the non-classified evidence will end on August 12. At that point, the special advocates ( Stuart Grieve QC and Chris Morris) who have appointed to contest the secret SIS evidence on Zaoui’s behalf, will start negotiating in earnest. Their initial task will be to engage with Neazor – and presumably with SIS Director Warren Tucker as well – to argue over what parts of the SIS secret files can and should be released to Mr Zaoui for challenge.

This process will create a batch of new, non-classified evidence. Logically, that means another phase of non-classified hearings. Do the special advocates have the power and the resources, to recall Joffe and Samraoui to testify about this freshly released material ? Arguably they should, if Zaoui is to be treated fairly. Yet I don’t think they do have this power – para 52 of the House of Commons Constitutional Affairs Committee report in 2005 says that special advocates can’t call witnesses, and that limitation is backed up by para 83 of the February 23 2007 ruling in the Canadian case of Adil Charkaoui.

I mention this in detail only to underline what an unsatisfactory compromise the special advocates really are, when it comes to meeting the natural justice rights of someone declared to be a security risk by the SIS. Probably, Joffe and Samraoui will therefore have to testify during the next round, by affidavit only.

Once this non-classified phase finally concludes, the real battle will then commence – between the special advocates and the Crown over the meaning and reliability of the classified evidence.

There won’t be much time to do it properly. Clearly the secret evidence phase cannot start until what…mid-September? It took a month – or more – for the non classified evidence to be considered. Surely this fabled secret evidence deserves similar treatment, or more. So that should take us until around the middle of November,at least. Hardly enough time left for Neazor to consider and write his decision and get it back to Cunliffe before Christmas. Lets just say the timetable is looking very tight for a December delivery.

Today though, I’m more interested in looking at the final stages the process, after Cunliffe gets involved - partly because so little attention has been been paid to it. There is a widely held belief that if Neazor confirms the security risk certificate, Cunliffe has only three days to decide about whether to accept it or not, and that’s that. Zaoui is then either deported, or he isn’t.

That’s not the case. A close reading of the June 2005 Supreme Court decision tells a different tale – and one that is much more fraught for Zaoui, and for the Government. For one thing ( para 81) Cunliffe needn’t rely just on the SIS security risk certificate. He may ‘seek information from other sources and may consider other matters other than the contents of the certificate.’ Just what that could be is anyone’s guess. Amnesty and Human Rights Watch reports on the human rights situation in Algeria? Diplomatic assurances from other countries already contactedas to whether they will take Zaoui in?

At para 82 the Supreme Court – which is clearly making this up as it goes along, and trying its best to fashion a coherent process out of bad law – even suggests the Minister might care to mix and match bits of the available legislation. According to the Supreme Court, the Minister might care to consider “a combination of article 33.2 of the Refugee Convention with s73 [of the immigration Act] which is about suspected terrorists, rather than with s72.”- which is the section under which the certificate was actually issued. Incredible, really. It seems a hopelessly late stage of the game to suddenly consider treating Zaoui as a terrorist, - given that the entire proceedings beforehand had not been couched in that light !

It really is a Mickey Mouse process. Anyhow, on we go. At para 83 -85, the Court then considers the provisions for and against deportation. Briefly, the situation is this : on one side of the scales, the UN Torture Convention and the UN Refugee Convention both bar New Zealand from deporting someone back to risk of torture and execution. In addition, section 129x of the Immigration Act gives immunity to removal for someone who is a recognised refugee – which Zaoui now is.

NZ's most famous alleged 'security risk' hanging out at the NZ Music Awards 2005 ******
On the other side of the equation, s 33.2 of the Refugee Convention, provides an exemption that allows deportation for particularly serious acts. If we caught Bin Laden for instance, we could deport him to face the music via section 33.2 – or other routes. In the past, there was also a landmark Canadian case called Suresh that gave a precedent for deportation under serious circumstances, the Refugee Convention regardless.

One important international consequence of the 2005 Zaoui decision is that our Supreme Court ruling explicitly knocked the Suresh precedent on the head.

While not using the term, our higher courts have effectively read the the Refugee and Torture Conventions so far in the Zaoui case as being what the lawyers would call ‘peremptory norms’ – which nation states have no choice but to obey. In all these respects, the bar has definitely been set against Zaoui’s removal, given that he does face a genuine risk of his torture and execution.

The only way out would be if New Zealand could find a 'safe' third country that agreed to accept him – which would be a difficult search, given that New Zealand would have just confirmed that the man they were trying to shop around was a security risk! Even then, the UN Conventions place a residual obligation even in the circumstances of an allegedly ‘safe’ third country.

In that sense, the whole Zaoui review is something of a charade. It is very hard to see how he can legally be deported, even if the certificate is confirmed. Does Cunliffe really only have three days to make up his mind, either way ? No. At para 92, the Supreme Court says baldly : “ There is no pressing prescriptive time requirement ; those charged with responsibility…should have adequate time to address the issues of fact and judgement involved.”

Does Cunliffe need to publically disclose the reasons for his subsequent decision ? Yes, the Courts say, while conceding in the next breath that the Minister may be able to find reasons under the Official Information Act for not disclosing the basis for his decision.

OK - now here’s where things get really interesting. The decision to deport is not Cunliffe’s.alone. In para 89, the Supreme Court says that it is for “ The Governor-General in Council - effectively the Cabinet – to make the deportation order.” So Cabinet will have to decide on the human rights consequences of Zaoui being deported, and how and whether this squares with New Zealand’s obligations under the UN Torture and UN Refugee Conventions. Of course, it might be thought this Cabinet decision would be only a rubber stamp of the Neazor/Cunliffe chain of decision.

The Zaoui case has given NZ's Prime Minister Helen Clark plenty to ponder ******

Unfortunately for Helen Clark, that can't be the case. At para 92, the Court says it accepts the submission by Zaoui lawyer Rodney Harrison QC 'that the right to natural justice affirmed in s27 of our Bill of Rights and the UN Convention on Political Rights and elsewhere provide procedural protection…’.Now, what can this possibly mean - given that ‘the right to natural justice’ includes the right to be heard?

Like it or not, this can be read as granting Zaoui the right to address the Cabinet in person, or via his lawyers Rodney Harrison and Deborah Manning - on such relevant matters as the risks facing Zaoui back in Algeria, and the consequences for New Zealand’s international reputation of sending a refugee back to risk of torture and execution. It could be a very long sitting of Cabinet, that day.

Even if Cabinet can avoid being addressed by Harrison and Manning, this won’t end its problems. Cabinet gets to make the final call on deportation. That being so, what is to be done about the Cabinet Ministers – Michael Cullen, Lianne Dalziel, David Benson-Pope – who have already publically expressed their views about Zaoui ? Shouldn’t natural justice mean they would have to recuse themselves from any final Cabinet decision about Zaoui's deportation ?

Dr Cullen enjoying a joke – though NZ's Attorney-General is not often smiling when the name Ahmed Zaoui is mentioned *******
During the last week alone, we have had the unlovely spectacle of Cullen, who is the Attorney General for goodness sake – ranting in Parliament against Zaoui and his lawyers, right in the middle of the key legal hearing concerning his life and liberty. What role can Cullen possibly play in any future decisions on this case ? None legitimately, you would think.

Any favourable Cabinet conclusion on Zaoui's fate would have one further dimension. Harrison has already warned the courts about the dangers of the Zaoui decision becoming a political football. Well, Winston Peters is a Minister, but outside Cabinet. Whatever Cabinet decides, he will be utterly free to attack. Already, Peters has been signalling that his election campaign will be waged, on immigration and on what he sees as its related consequences : the high dollar hurting exporters, inflation, soaring house prices, and road congestion in Auckland among them. To Peters and his party, immigration is the root of many of New Zealand's evils.

Meaning : any future Cabinet decision that allows Zaoui to stay here would provide Peters with a marvellously convenient ( and popular ) reason to break ranks with the Government and cause an early election, on an issue central to his party’s election strategy. Soft on immigration, soft on terrorism, soft on Zaoui. Why, the nation's very security, Peters could well try to argue, now demands that he take a strong stand and end this Government's flagrant dereliction of duty. Peters – and not Zaoui - poses the real security risk to the survival of this Government.

Next : The special advocates

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Disclosure : Gordon Campbell now works as a media officer for the Green Party. He has been writing about the Ahmed Zaoui case since 2003.

ENDS

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