CAATnews June/July 2004 - News and Opinion

Indonesia Judicial Review fails

Previous issues of CAAT News we have reported on the progress of a judicial review of the UK Government’s continued sale of military equipment to Indonesia. Indonesian human rights activist Aguswandi contended the "clear risk of use for internal repression" test spelt out in the EU criteria had been replaced by an "evidence of actual misuse" test when licence decisions were considered; that the FCO and DTI failed to consider material considerations (such as human rights abuses in Aceh); and that the Government’s behaviour was irrational – given the evidence Ministers had available and the criteria they have to follow, granting licences for Indonesia was irrational.

On 17 February permission for the case to proceed was refused on the papers. The application for permission was then renewed at an oral hearing on 29 March at the High Court, and was again refused. Mr Justice Leveson put a different interpretation on the content of the correspondence, and said there was insufficient evidence the government was applying the incorrect test. He said that there was insufficient evidence on the specific licenses granted since the deterioration of the situation in Aceh, for the Court to be in a position to judge whether the Government was reaching a wrong conclusion when applying the test. As we could not provide evidence of specific decisions taken at specific times, and the evidence the Minister considered (because it’s secret) he concluded that as the Government said it was behaving lawfully, it must therefore be behaving lawfully!

This means any judicial challenge to decisions on how the arms exports criteria are applied is virtually impossible because the information the Judge decided was needed – details of specific licence applications, and what the Minister had in front of her when making the decision – is secret.

Unfettered discretion has therefore effectively been given to the Secretary of State in how they apply the criteria.

However, Mr Justice Leveson did say if there were any demonstrable evidence that UK equipment had been used to commit specific human rights abuses in breach of assurances provided by the Indonesian Government, this would be decisive in law, implying a case could be brought if such evidence came to light. A heavy but not insurmountable burden of proof is therefore placed on us if we want to bring such cases.

(Nicholas Gilby)