[asia-apec 1182] NZ: APEC/Security

[Gatt Watchdog]

>From The Press, Christchurch, July 7 1999
(website <www.press.co.nz>

Letters to the editor  (150 words max, include full postal address
<editorial at press.co.nz>)

Court declines SIS disclosure
by Martin van Beynen

The Court of Appeal has stepped back from inspecting Security
Intelligence Service documents relating to a bungled break-in of a
Christchurch activist's home.

Anti-free trade activist Aziz Choudry had applied for 70 SIS
documents to pursue a court claim against the SIS for the break-in
on July 13, 1996.

Last December, the Court of Appeal said the Prime Minister (the
Minister in charge of the SIS) would need to provide more
information on why she believed the documents should attract
immunity before it could rule on Mr Choudry's application.

The court said the break-in was illegal because the
SIS had acted outside its powers.

Having considered a new certificate prepared by the Prime
Minister, four of the five sitting judges yesterday ruled the
court should defer to her view that disclosure would be contrary
to national security.

Judges did not have the expertise or necessary information to say
otherwise, they said.

Judges would have no way of knowing whether a document that looked
harmless might be a crucial piece in a jigsaw that could
jeopardise national security.

Mr Choudry said yesterday he was naturally disappointed with the
ruling, although the judgment was on a preliminary question in the
case and his claim for $300,000 against the SIS would go ahead.
He was concerned the judgment appeared to put the Prime Minister
above the law.

"It's particularly worrying the Government is still cleaning up
this bungle from 1996 in a year when it is hosting the Apec
forum," he said.

In a hard-hitting dissenting judgment, Justice Thomas said the
court should at least inspect the documents sought by Mr Choudry.

To accept the Prime Minister's certificate gave the court
sufficient information to weigh up the competing interests "is for
the court to succumb to a convenient pretence," he said.

The majority appeared to suggest judges were not competent to
assess the sensitivity of the documents but that the "nuances and
intuitive deductions" which were part of covert intelligence could
be quickly grasped by the Minister.

It was not difficult to perceive that the Minister would be
heavily dependent on the SIS and therefore lacking in objectivity.

Once it was accepted trust in the certificate was in reality trust
in SIS, the judicial trust seemed "strangely out of place", he
said.

"In effect it confers on the SIS such immunity as it chooses to
claim free from the constraints of any form of effective
scrutiny," he said.