Judges' challenge to Government

The Supreme Court has flexed its muscle in its Ahmed Zaoui ruling and seems to be forcing the Government to show its hand or back off over opposing his bail, says a legal expert.

Five Supreme Court judges rejected Crown arguments that Mr Zaoui should remain in jail until the review of a security risk certificate levelled against him is completed.

Instead, they said, a bail hearing should take place at the High Court.

But in an unusual step, the country's highest court says it will hold the hearing itself in two weeks to stop further "oppressive" delays.

"This is a case where national security issues arise," the judges said.

"It is also a case about the liberty of someone who has refugee status in New Zealand and who is entitled to the benefit of the Refugee Convention requirement that only such restrictions upon his liberty as are necessary should be imposed on him."

Auckland University senior law lecturer Scott Optican said yesterday's ruling was clearly a win for the Algerian's lawyers.

He said the case reminded him of an American Supreme Court finding in relation to Guantanamo Bay which had said national security did not give the Executive a blank cheque.

"It shows the Supreme Court is willing to flex some muscle and is saying `look, we are not a nonentity here'."

The pressure would now go on the Government to justify Mr Zaoui's detention.

Further, the court had found that the recourse to bail could not be considered "exceptional".

"All the signals are that the Government is going to bear a burden here to show why he should continue to be detained. `Put up or shut up' - I think that's what it is going to come down to," Mr Optican said.

Friction between the Government and the Judiciary has led to several public clashes this year, and the Zaoui case has been one of many points of tension.

Two weeks ago, when hearing Mr Zaoui's application for release on bail, Chief Justice Sian Elias raised the possibility that Prime Minister Helen Clark could be called to give evidence to explain the reason for his detention.

Mr Optican said the court's decision to hear the bail application itself, rather than send it to the lower courts, was "absolutely unusual".

"Typically in supreme courts they hear arguments about the law. Now the court is essentially going to turn itself into a lower-type court and hear facts."

Mr Optican said the court would effectively be "writing a new page in the history of bail".

Traditional bail considerations would not technically apply. Mr Zaoui had not been charged with anything, so the usual acts and the Bill of Rights did not cover his case.

Under the Bill of Rights, bail was considered an entitlement unless the prosecution could show why it should not be granted.

A primary consideration in most bail applications was the chances of re-offending while a person was at large. As Mr Zaoui had not been charged, it would be interesting to see how this issue was dealt with, Mr Optican said.

Constitutional lawyer and former Prime Minister Sir Geoffrey Palmer agreed that the ruling was a show of strength by the Supreme Court.

He had read the judges' summary and said it indicated that the judges were "fully engaged" in the case.

A spokesman for Immigration Minister Paul Swain said the Crown had been acting on legal advice in taking the case against Mr Zaoui.

The bail hearing had been set, and the Crown would comply with the court's decisions.

Mr Zaoui is awaiting another Supreme Court decision, on whether his human rights should be taken into account during the review of the security risk certificate.