11 February, 2004

Government without a heart

Speech by Green MP Keith Locke during the debate on the Prime Minister's statement

The sign of a good government is that it has a heart, that it can hear cries of distress. In some areas, as in employment relations, this Government does have a heart. It is trying to make things fairer for working people.

But in the Zaoui case Labour is heartless. It has no empathy whatsoever for a fellow elected MP and his family, who have been suffering terribly since a military coup in Algeria 12 years ago. Instead of showing compassion for Mr Zaoui, Labour has imprisoned him for over 14 months.

For all of that time Mr Zaoui has not be told of the accusations against him. At last he may get a summary of the accusations against him, but to achieve this he had to win a case in the High Court.

Now the government is appealing the other half of the High Court ruling in favour of Mr Zaoui - that the Inspector General of Intelligence and Security should take human rights into account in his determination of the Security Risk Certificate applied to Mr Zaoui. This is shocking.

Immigration Minister Lianne Dalziel has said that it is the Inspector-General's task to determine whether Mr Zaoui really is a threat to "national security". First, it should be noted that the government chose to use the "national security" clause, not the "terrorist" clause, when applying the Security Risk Certificate.

This is convenient for the government because "national security" is capable of any number of definitions. Around the world many political dissidents are imprisoned for "national security" reasons, often without access to an adequate legal process. Algeria is a case in point.

Endangering good relations with other governments is often seen as a threat to "national security". In fact, according to our legislation the Security Intelligence Service is supposed to pursue those who "impact adversely on New Zealand's international well-being".

Given that the Algerian regime is unhappy that Mr Zaoui continues to criticise the lack of democracy in his homeland, it could be argued that letting him stay here would undermine New Zealand's diplomatic relations with Algeria and thereby affect our "national security".

SIS Director Richard Wood could be putting diplomatic interests ahead of Mr Zaoui's human rights - and by extension the human rights of all of us.

Auckland academic Paul Buchanan has been lambasted by Lianne Dalziel and Helen Clark for arguing that Wood previous posting as our ambassador to France and Algeria could have a bearing on the case. But it could.

France has collaborated in the suppression of democracy in Algeria and may also be upset that the Refugee Status Appeal Authority has give refugee status to such a prominent opponent of a regime which is so friendly to France.

Keeping Mr Zaoui here may affect our diplomatic relations with France as well as Algeria and this could concern Richard Woods. He could also be giving greater credibility to French intelligence than it deserves. French intelligence operations are shaped by political objectives - as we found out when they sunk the Rainbow Warrior - and French intelligence services have a history of helping the Algerian regime portray its democratic opponents, like Mr Zaoui, as terrorists.

Of course, the comments about Mr Woods are in the realm of educated conjecture. Unfortunately, that is all we are able to do, given the secrecy and lack of accountability that surrounds the SIS, including the Zaoui case.

Because there could be a bias in favour of the government's perceived diplomatic interests, it is critical that the Inspector-General take into account Mr Zaoui's human rights, particularly his right to publicly criticise the Algerian government without suffering any penalty in the determination of his case.

Other obvious human rights for the Inspector-General to take into account are the right of Mr Zaoui to a fair hearing, not to be unreasonably detained, and not to be sent back to torture or death in Algeria.

Taking into account these human rights is integral to the Inspector General's determination of the case, which is why it is so wrong for the government to appeal the High Court decision in favour of Mr Zaoui.

Lianne Dalziel's argument, that she can take into account Mr Zaoui's human rights in her final determination of the case, is patently absurd. By law, the Immigration Minister has only three days to make a decision after an adverse report by the Inspector General. This is simply not enough time to get to grips with the fine points of the case, and the law. Unlike the Inspector General she would not have heard all the witnesses, been part of all the cross-examination in the hearings, and have heard all about the situation in Algeria today. In any case, as the Minister who originally applied the Security Risk Certificate to Mr Zaoui, she would also have a vested interest in not being proved wrong, and of not thereby being blamed for Mr Zaoui being unnecessary detained for many extras months. There is also problem in a government minister making this final decision. Mr Zaoui has been a political embarrassment for the government and it would like to get rid of him.

This is where the Zaoui case ties into the international debate on how governments are conducting the so-called "war on terrorism". Led by the Bush administration, Western governments are asserting their right to deal with alleged terrorist by secret administrative measures, not through open judicial processes. However, there is a legal fightback taking place, such as in the current court challenges to the US government's ongoing detention of alleged Taleban and Al Qaeda prisoners at Guantanamo Bay.

The Clark government seems very fearful of such matters being pursued here in relation to the operation of the Security Risk Certificate procedure in the Zaoui case. This is one of the reasons why it has been so hostile to Dr Michael Kidd's draft report for the International Commission of Jurists.

Without getting into a debate on whether Dr Kidd is right or wrong in all his legal argumentation, he does raise two very important points. Is it right that the Refugee Status Appeals Authority judicial decision in favour of Mr Zaoui could be over-ridden by a government-administered Security Risk Certificate procedure? And he thinks Mr Zaoui could be successful in a habeas corpus suit that he was being illegally detained.

Section 114O (3) of the Immigration Act does provide for a person subject to the certificate to be released, even before the Inspector-General reports. And it also allows him or her to be moved from a prison to other forms of detention, such as the Mangere Refugee Resettlement Centre, or home detention. The Section specifically contrasts a "prison" and "other premises" of detention. Ms Dalziel is quite wrong, on both legal and humanitarian grounds, to refuse to move him out of the Auckland Central Remand Prison.

Most thinking people believe it is just not acceptable for Mr Zaoui to be detained for so long. It is now over fourteen months and for Mr Zaoui it is hard to see light at the end of the tunnel.

Mr Zaoui's detention has been, and is being, prolonged by several months by the government forcing Mr Zaoui to go to the High Court to get a summary of evidence against him provided, and then forcing him to wait around while the government appeals the High Court decision that the Inspector-General should take account Mr Zaoui's human rights.

I visit Mr Zaoui regularly and he is sufferng terribly as test case of this abominable and anti-democratic Security Risk Certificate procedure.

The Zaoui case has tested many government departments, and they have been found wanting. It is good that the Ombudsman is now investigating the conduct of the Departments of Immigration, Customs and Corrections in this whole affair. We also need to look at the role of the Police, which got it wrong from day one, accepting at face value the warrant the Algerian regime had out for him, and the fact that he had been sentence to death in Algeria.

But particularly, we need a serious review of the SIS, how it collects its foreign intelligence and whose interests it is serving. We know from the inquiries now begun into the British and US intelligence services that such services cannot be automatically trusted to get things right behind their walls of secrecy.

Mr Zaoui is the sacrificial lamb of crazy, undemocratic procedures and a stubborn unfeeling government. He and his family are hurting. We must release him now.

(Ends)

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