Chapter 2
Interests to be taken into account

The right to natural justice in the face of a risk to national security

2.74International commentary and case law suggests that there is a threshold by which the cumulative breach of due process rights81 would make justice impossible but that the breach of one of the bundle of rights would not, of itself, preclude a fair outcome.82 Context plays an important part in determining whether and to what extent the rights of the individuals can be limited without being undermined. This is equally true where the right to natural justice is seemingly threatened by a risk to national security.
2.75For example, in the context of addressing whether the human rights under Article 14 of the ICCPR could be derogated from due to a state of emergency, the United Nations Human Rights Committee noted in General Comment 2983 that states “must act within their constitutional and other provisions of law”.84 In other words states are required to follow a legal process to ensure any derogation is justifiable and can be shown to be so justifiable. To set aside rights protected under the ICCPR, the level of national security threat must be significant.85
2.76Article 4 of the ICCPR recognises that in times of public emergency threatening the life of the nation, there may be exceptions to the protections listed in the ICCPR. However, the United Nations Human Rights Committee stated in General Comment 29 that “parties may in no circumstances invoke Article 4 of the Covenant as justification for deviating from fundamental principles of fair trial”.86 Any decision to set aside the guarantees in Article 14 requires taking into account the state’s other international obligations and cannot be discriminatory.87
2.77The viability of derogation is linked to the nature of the measures taken. The state in question must justify both the state of emergency and the derogation and the United Nations Human Rights Committee has previously opted not to legitimise derogations on the basis that there was insufficient “submission as to facts or law to justify such derogation”.88
2.78Derogation from the significant human rights protections afforded under the ICCPR is reserved for extreme circumstances. Certainly the requirement that there must be an officially declared state of emergency would preclude a government from relying on Article 4 as a means by which to set aside the protections in Article 14 in order to avoid disclosure of national security information.89
2.79A potential or actual threat to national security presents a clear dilemma in terms of the extent to which natural justice and open justice rights are absolute.90 Yet, the right to natural justice and the right to open justice are crucial because the rule of law is an important constitutional principle upon which New Zealand democracy is based.
2.80The breach of a fair trial protection does not of itself lead to a failure to provide natural justice. However, where a fair trial becomes impossible (for example due to an accumulation of breaches), then the trial itself becomes void. Context is important in determining whether a fair trial can be maintained.91

2.81If natural justice and open justice rights are undermined, this impacts not only on the individual in question but can have implications for society as a whole. Any exceptions to natural justice and open justice protections must therefore be preceded by debate, which is the goal of this project.

2.82This chapter has illustrated that the range of national security interests that may come into play are varied and are subject to extensive international debate. We believe it is possible to protect those national security interests while also promoting principles of natural justice and open justice. Any law reform proposals to permit derogation from fundamental rights should be developed in a carefully monitored rights-based framework.

2.83Before turning to consider the options for reform in Chapter 6, we now turn to consider the issues that arise when dealing with national security information in criminal and then civil and administrative matters.

81The full set of rights as provided for under the Universal Declaration of Human Rights, above n 52, and the ICCPR, above n 20, are: (1) notification of charges; (2) the presumption of innocence; (3) counsel of choice or state funded counsel who is effective and with whom confidential communications may be had; (4) prompt trial; (5) equality of arms; (6) interpreter; (7) presence at trial; (8) not be compelled to confess; (9) call and examine witnesses; (10) fair civil and criminal proceedings; (11) minimum fair trial protections even in times of national emergency; (12) independent and impartial judiciary; (13) public trial; (14) judgement made public; (15) benefit from a lighter penalty if one is available; (16) application of the maxim “no crime if no law”; (17) no double jeopardy; (18) right to appeal; (19) right to a remedy.
82David Weissbrodt The Right to a Fair Trial: Articles 8, 10 and 11 of the Universal Declaration of Human Rights (Brill Academic Publishers, Netherlands, 2001) at 153.
83General Comments are highly authoritative interpretations of the law issued by the United Nations Human Rights Committee. Having signed the Vienna Convention on the Law of Treaties 1965 in 1970 (note article 31) New Zealand accepts the validity of General Comments as a tool for interpreting the law.
84United Nations Human Rights Committee General Comment No 29: Status of Emergency (Article 4) CCPR/C/21/Rev1/Add11 (2001) at [2].
85Some have gone so far as to say it must be a “grave … political or military threat to the entire nation”: Manfred, above n 29, at 212.
86Amnesty International considers that “all criminal and administrative trials should be conducted in accordance with internationally recognized fair trial rights” but that the right to a fair trial “depends on the entire conduct of the trial” and “is broader than the sum of the individual guarantees” of due process that are given to an individual depending on the nature of proceedings for example the presumption of innocence in criminal proceedings: Amnesty International Fair Trial Manual ((2nd ed) Amnesty International Publications, London, 2014) at 118.
87There is a two stage process whereby the country in question must first proclaim a state of emergency and secondly provide notification of the derogation due to the state of emergency proclaimed. Pursuant to Article 4, notification requires both informing the United Nations of the derogation and secondly providing reasons for it. The notification requirements are not merely technical. General Comment 29 clarifies that the proclamation “requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed”. Notification requires specificity in particular the “date, extent and effect of, and procedures for imposing and for lifting any derogation under Article 4 should be fully explained in relation to every article of the Covenant affected by the derogation”: United Nations Human Rights Committee Consolidated Guidelines for State Reports under the ICCPR CCPR/C/66/GUI/Rev2 (2001) at C3.
88 United Nations Human Rights Committee Ramirez v Uruguay A/35/40 (1977) at [17].
89 For a list of states that have declared a state of emergency and the type of emergencies for which declarations are made see Question of Human Rights and States of Emergency: List of States Which have Proclaimed or Continued a State of Emergency: Report of the Office of the High Commissioner for Human Rights Submitted in Accordance with Commission on Human Rights Decision 1998/108 E/CN.4/Sub.2/2005/6 (7 July 2005).
90Although on the face of it the protections in Article 14 may be set aside in times of public emergency, the United Nations Human Rights Committee considers that because fair trial guarantees may not be set aside under international humanitarian law (that is the law that applies during times of war and war by its very nature is a threat to the life of the nation) certain fair trial rights should not be set aside even where the threat to the life of a nation exists: United Nations Human Rights Committee, above n 84, [11] and [16] . Indeed, fair trial protections have been codified in the four Geneva Conventions and two Additional Protocols.
91Barberà, Messegué and Jabardo v Spain (10588/83; 10589/83; 10590/83) ECHR June 1994. For example, the issue in Prosecutor v Karadzic was whether the cumulative effect of disclosure violations prejudiced the defendant’s right to a fair trial: Prosecutor v Karadzic (Decision on Accused’s Second Motion for New Trial for Disclosure Violations) ICTY Trial Chamber IT-95-5/18-T 14, August 2014 at [16].