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On why terrorism law changes can't be rushed

Given the horrifying actions of the New Lynn supermarket terrorist, it is easy to see why the public and the government seem to have agreed on the need to change the relevant laws, all the better to protect the public. Presumably, this would involve making it easier to override the refugee status and permanent residency rights held by anyone suspected of having the intention of committing a terrorist act. To achieve the same end, we could also (presumably) expand the powers of the state to detain suspects in jail, even before they have committed a crime. Finally, if we chose to do so, we could also make it easier and quicker to deport people suspected of having terrorist beliefs and intentions.

Each of those steps would be problematic. For once, I agree with Act Party leader David Seymour that we shouldn’t rush changes through in the heat of the moment, but take our time to arrive at the right balance between civil liberties and security protections. This doesn’t mean being soft on terrorism. It means that the legal barriers that slowed down the legal process with respect to the New Lynn terrorist exist for a reason.

To put that another way: Supposedly, there is a “gap” in the NZ terrorism legislation that makes it difficult/impossible to prosecute someone for having a plan or serious intent to commit a terrorist act. Obviously, everyone would like to ensure the innocent are protected from harm.Yet in the light of what we saw in the Urewera raids, do we really want to give the Police free rein to define – after perhaps covert consultation with the SIS - - what counts as a plan, or an intention, to commit a terrorist attack? On that occasion, the Police misread the clues, and carried out a massive exercise in overkill.

Similarly, and in the light of what happened to the Algerian refugee Ahmed Zaoui do we really want to make it easier for the SIS to decide what counts as a threat to national security? In the Urewera raids and the Zaoui cases, it was the courts that used the checks and balances that existed in the law, to prevent rank injustices from taking place. We should learn from those experiences. We shouldn’t be rushed into making it harder for the courts to correct the operational errors routinely made by agencies – the Police, the SIS, and the Immigration Service – that already possess extraordinary powers to intrude upon the ordinary liberties enjoyed by the public. Before we give those agencies even more sweeping legal powers, we need to pause, and consider how far we want to go down this road. Basically, we shouldn’t set out to address yesterday’s problems in a way that will create tomorrow’s injustices.

What To Do

IMO, we shouldn’t change the rules for granting and keeping refugee status, for defining a “terrorist” plan or intent, or for speeding up the process of deportation. Deportation to where? International law limits our ability as good international citizens, to dump those problems we belatedly detected off onto some other country, and/or return the person in question back to where they are likely to be tortured or killed.

On more than one occasion during the past 20 years, our Police and security agencies have demonstrated their ability to add two and two together and arrive at eight as the answer. We don’t want to make it easier for them to make these analytical leaps of logic, in order to secure a conviction or justify a deportation. ( Immigration deports its mistakes.) Nor can we rely on a centre-left government to keep those powers in check. After all, the Urewera Raid and the Ahmed Zaoui case both happened with the blessing of the Labour-led government of the day.

There’s another point worth considering. We’re a relatively wealthy, developed country. Yet compared to other countries – many of them far poorer - New Zealand is remarkably stingy when it comes to the numbers of refugees and asylum seekers that we recognise and take in. We shouldn’t therefore treat the New Lynn attack as an opportunity to make it even harder for people in need of a safe refuge to find a new home in New Zealand. If we react in that fashion, we’d be doing Islamic State a favour. They win their recruits among people who have been denied all other avenues of hope.

The legal hurdles

IMO, if we want to give better protection to the community, the only viable area where this is possible would involve expanding the court’s power to order the detention of a suspected terrorist for a finite period of time - pending the outcome of either a criminal prosecution or pending an immigration review of their refugee/residency status. Presumably, the operational agencies – SIS, the Police – would have to apply to the courts for such an order, and present supportive evidence. Mindful of the previous analytical errors and leaps of logic displayed by those agencies, this evidence would need to be made open to challenge by the lawyers acting for the person affected. If subjecting that evidence to open scrutiny was claimed by the SIS to raise security concerns, a special advocate may need to be appointed by the court.

Overall, it would be difficult – and probably foolhardy – to try and be too prescriptive about what kinds of evidence would meet the high standard required for the court to issue a detention order of this kind. Prosecuting and detaining people for crimes that they might commit in future puts us in the realm of the Tom Cruise science fiction movie Minority Report.

Samsudeen’s case

According to the documents made available earlier this week on this case, Ahamed Aathill Mohamed Samsudeen (a Tamil Muslim) arrived here in 2011, applied for refugee status that was eventually granted in 2013, on the basis of the threat posed to him by the Karuna Faction. The Karuna para-military force operating in eastern Sri Lanka was a splinter group whose defection from the Tamil Tigers rebel group is widely believed to have been crucial to the subsequent defeat of the Tigers. Its leader, Karuna Annam has since held significant posts in the Sri Lankan government, and he is still regarded as being a key ally of President Gotabaya Rajapaksa.

During the mid 2000s, Karuna’s faction was accused by Amnesty International and Human Rights watch of death squad activities, torture, extra judicial killings, kidnappings and ransom, the recruitment of child soldiers and the participation in massacres of Muslim Tamils in eastern Sir Lanka. As recently as last year, Karuna was still boasting to the media about his crimes. So the risk faced at the time by the likes of Sansudeen may well have been genuine, and - given Karuna’s clout within the current Sri Lankan government- Samsudeen may also have been at risk of torture or worse, if he had been returned there.

In these circumstances, Article 33 of the UN Refugee Convention lays a clear obligation on signatory nations like New Zealand:

  1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

However, the very next clause contains an exemption relevant in the Samsudeen case :

  1. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

So he would have needed to have been formally defined as a risk to national security, and/or convicted of a serious crime. Samsudeen was granted refugee status in 2013, but this was due to be revoked in 2018 on the grounds that the original supportive documentation was “fraudulent”. This too, was problematic. In reality, was the Immigration Service simply raising the bar on what counted as valid documentation, in order to find an excuse to deport someone now deemed to pose a security risk ? Possibly. Many refugees fleeing for a safe harbour do have an obvious motive to exaggerate the risk they faced. (On the other hand, proving you are at risk of being killed shouldn’t require you to prove beyond doubt that you would have been killed.)

Moreover, what counts as “fraudulent” documentation? In the circumstances, refugees may find it hard to access the exact documentation from authorities back in a home country where the powers-that-be are far more interested in continuing to persecute them. The NZ Immigration Service is not renowned for its empathy and compassion on matters to do with expecting refugee claimants to produce First World levels of documentation. That’s why there is often tension and conflict between the internal Immigration decisions made by its Refugee Status Unit, and the subsequent rulings of the independent Immigration and Protection Tribunal.

Among other factors, the Tribunal has to be more mindful of why the Refugee Convention requires countries (Articles 25, 27, 28) to show proactive sympathy to gaps in the documentation provided by refugees. The Convention even allows for false documentation to be (temporarily) used to enable travel to other countries to obtain asylum. This puts an onus on host countries to be compassionate and helpful to people unable to readily obtain proper documents from their country of origin. For example Article 28, para one says:

The Contracting States… shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.

What I’m getting at here is that there may have been very good reasons for the legal delays with respect to Samsudeen, and why the draconian decision to revoke his refugee status was being challenged. However, what is really difficult to understand is why the authorities chose to freeze the immigration/refugee proceedings, pending the outcome of the criminal proceedings against Samsudeen. Those two processes weren’t logically, or legally connected. So why was the decision taken to shelve (for the meantime) the refugee status/deportation proceedings? One can only speculate, but this decision to shelve the immigration/refugee proceedings suggests that the Immigration Service wasn’t very confident it would win the appeal against its own conclusion that Samsudeen’s refugee status had been ”fraudulently” obtained. It looks like the Immigration Service was rather hoping the criminal proceedings might take the Samsudeen problem off its hands. Or, at the very least, strengthen its hand.

Of course, no-one not intimately involved in the decisions taken over the years about Samsudeen can know with certainty whether such suspicions are well-founded. But it does look as if the authorities were taking an “end justifies the means” approach to resolving the problem posed by Samsudeen, and – to their credit - the courts were resisting being made a party to such a campaign. (Just as the courts resisted merely rubber stamping the process with resp[ect to Zaoui.) The courts did not, for instance, extend the length of sentencing on Samsudeen’s possession of proscribed Islamic State documents in order to serve a different, national security purpose.

No doubt, everyone involved has had the best motives in mind. But that’s why an independent inquiry now needs to be held, to re-examine all of the decisions taken over the years with regard to Samsudeen, and to recommend solutions. If the mosque shootings called for a Royal Commission, surely this incident at least calls for an independent judge-led inquiry. In the end, it would inspire a lot more public confidence if any changes made to the law were the outcome of such an inquiry, and were not entrusted simply to governmental and departmental expedience. Too many basic freedoms – habeas corpus, the Bill of Rights, the right to asylum - are in the balance here, for a knee jerk response to be condoned.

Footnote One: As deputy PM Grant Robertson said at yesterday’s media briefing, there are two key UN resolutions – 2178 and 2396 – relevant to the government’s response. Those UN resolutions were passed in the wake of the threat posed by foreign terrorist fighters inspired by the ideologies of Islamic State and other such groups. (To some extent, our original anti-terrorism legislation itself was a requirement the UN imposed on its member states, post 9/11.) Clause 29 of Security Council Resolution 2396 (2017) for example, imposes an obligation on the New Zealand government to plug the alleged loophole in our anti-terrorism law with regard to “ lone wolf” terrorist planning. This onus begins at point of entry and continues beyond:

29. Calls upon Member States to assess and investigate suspected individuals whom they have reasonable grounds to believe are terrorists, including suspected foreign terrorist fighters and their accompanying family members, including spouses and children, entering those Member States’ territories, to develop and implement comprehensive risk assessments for those individuals, and to take appropriate action, including by considering appropriate prosecution, rehabilitation, and reintegration measures and emphasizes that Member States should ensure that they take all such action in compliance with domestic and international law;

And even more keenly at clause 38 :

38. Calls upon Member States to develop and implement risk assessment tools to identify individuals who demonstrate signs of radicalization to violence and develop intervention programs, including with a gender perspective, as appropriate, before such individuals commit acts of terrorism, in compliance with applicable international and domestic law and without resorting to profiling based on any discriminatory grounds prohibited by international law;

All of which is a lot easier said than done. After all, the relevant clauses in those Security Council resolutions say that this identification and neutralisation of terrorist threats must also be carried out in accord with “domestic and international law” and without an undue resort to profiling. Good luck with finding that balance.

Footnote Two: Clearly, conversion therapy wouldn’t be a legal option in New Zealand for changing the mindset of any local followers of Islamic State ideology.

Footnote Three: It doesn’t help that the UN guidelines seem to make contradictory demands. For example, it is pretty hard to see how the basic rights to claim refugee/asylum status wouldn’t be cancelled by this provision in resolution 2396 :

“Reaffirming its call on Member States to ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists…

Wowzah. So if a dictatorial regime calls someone a “terrorist” because of their political beliefs and actions, are member states required to extradite those supposed enemies of the state back home again, into the dictator’s tender clutches? How on earth is this paragraph to be interpreted “in conformity with international law” when the UN’s conventions otherwise comprehensively protect refugee claimants facing this exact same scenario ? Plainly, even the UN experts find it hard to write these provisions in a coherent fashion.

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