A legal win for the NZ govt on Zaoui – but where is the justice?

Far from vindicating the Government's position on the imprisonment of Algerian refugee, Ahmed Zaoui, today's Court of Appeal decision finding that his imprisonment is legal emphasizes the duty of the Government to ensure he receives a fair hearing of the allegations made against him, Amnesty International said in a statement issued this afternoon.

In a 2-1 majority judgment the Court decided that Mr Zaoui's detention was not unlawful or - at this stage - "arbitrary", and he could not therefore be granted bail or moved to less restrictive detention, despite psychologists' findings that continued imprisonment was adding to the effects of trauma suffered by Mr Zaoui during his time in detention in Algeria and his subsequent decade in exile.

Describing the position in which the Court found itself, Justice McGrath argued that "The ability of a court to exercise a judicial discretion in the grant of bail requires some understanding by the Judge of underlying matters raised by the certificate. That is simply not available…. The Court cannot conclude that there is no risk arising from his release, because it does not and cannot have, before it the classified security information on which the security risk certificate is based. "

"During the case the New Zealand Government appeared to be arguing that a refugee subject to a security risk certificate could be imprisoned indefinitely despite no provision in place for a fair hearing of the reasons for his detention," said AI's NZ director, Ced Simpson.

Amnesty International has consistently argued that the security certificate review process - yet to get underway 21 months after Mr Zaouyik was first imprisoned - does not explicitly provide for a fair hearing of the allegations against Mr Zaoui, and has expressed concern that the Government has refused to put in place provisions outlined by the European Court of Human Rights as being necessary for a fair handling of refugee cases with a "national security" dimension.

The review process does not, for example, provide for the ability of security-cleared counsel representing Mr Zaoui to challenge assertions by the Director of Security, making it inherently unfair," Mr Simpson said.

"This is very disappointing coming from a government rightly committed to 'create and sustain a world-leading human rights environment'."

"As Justice Hammond put it,

…The notion of national "security" is not a mantra, or a security blanket for the state, to be thrown lightly over an object. That "object" is a human being, and the blanket can become oppressive and debilitating and disproportionate. (Justice Hammond [198])

To contend, in this day and age, that a person (not on a criminal charge) can be incarcerated for something like two years, with common (and not so common) criminals, whilst the state decides what to do with him, beggars description. What has happened here is that the relevant processes, taken as a whole, have not dealt timeously with Mr Zaoui. His incarceration has become oppressive, and quite disproportionate to the things which are said against him. (Justice Hammond [199])

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