SIS papers secret but case still on

By Eugene Bingham

A landmark case against the Security Intelligence Service is to continue, despite a ruling from the Court of Appeal keeping key documents secret.

Aziz Choudry, who is suing the SIS over an illegal break-in at his Christchurch home in 1996, said yesterday that he would continue with his civil case regardless of the ruling.

"I won't back down."

Mr Choudry, who is campaigning against free trade, had asked the court to review more than 50 documents the agency has refused to hand over.

But in a majority judgment, the court declined the appeal and approved of a certificate from Prime Minister Jenny Shipley that more information should not be disclosed. "The Prime Minister has expressly certified that to supply further information would itself not be compatible with national security," said the decision.

"The court simply does not have the expertise or the necessary information to say that the Prime Minister's view of the matter ... should not prevail."

Mr Choudry said he was disappointed by the judgment, which would fuel anxieties about the service.

"It's hard to see how they are even accountable to the Judiciary."

Throughout the case, the service and the Government have refused to say if Mr Choudry was the intended target of the SIS operation, or whether he was an innocent third party.

"We still don't know whether it was me, my cat or anybody else," said Mr Choudry, who was concerned about a submission on behalf of the service that the secret documents related to an on-going security concern. "That is a very serious statement to be making and yet there is nothing in the legal argument that explains it."

A spokeswoman for Mrs Shipley said she would be making few comments about the judgment.

The majority decision from four of the five judges, including the president of the court, Sir Ivor Richardson, said a judicial inspection of the documents would be unlikely to advance matters responsibly.

"A judge looking at the documents might conclude that on their face they were completely innocuous from the point of view of national security.

"But against that would stand the Prime Minister's certificate informing the court that disclosure would be contrary to national security ...

"A certificate that to disclose more would reveal information it is the very purpose of the claim to keep secret, must be taken at face value."

But in a dissenting view Justice Thomas disagreed, saying national security would not suffer.

"The casualty will be the administration of justice and public confidence in the legal system to ensure that public interest immunity is constrained by law," said Justice Thomas.

"Judicial inspection may be an imperfect process but having regard to the nature of a covert security service, it is the only system available to hold the service accountable."

He said that the very nature of the service meant its work was carried out without much public scrutiny.

"If the courts are not prepared to perform this supervisory function, the decisions of the service to claim immunity will go unchecked."