I.P.O. Information Service
Embargoed
until August 10, 2009
The
Lockerbie case and the corruption of justice,
or: justice delayed is justice denied
Comment article written by
Dr. Hans Köchler, international
observer at the Scottish Court in the Netherlands
Vienna, Sunday, August 9, 2009
Back in August 1998 the United Nations Security
Council had “welcomed” the resolution of the legal-political dispute
between Libya and the governments of the United States and the United
Kingdom over the explosion of Pan Am flight 103 over Lockerbie through
the trial of two Libyan suspects before an extraterritorial Scottish
Court in the Netherlands. While the dispute between the governments has
been settled years ago and Libya now entertains businesslike relations
with both the US and UK, the only individual convicted in the Lockerbie
case, the Libyan Abdelbaset Ali Mohmed al Megrahi, still awaits a final
verdict in his case, the announcement of which he may not live to see
because, while in Scottish custody, he has fallen ill with cancer that
was detected only at a time when, so the prison authorities say, it was
already too late to administer more than palliative care.
The hopeless, indeed Kafkaesque, situation which the
lone Libyan prisoner finds himself in is further aggravated by the fact
that his second appeal has suffered from enormous delays – which are
scandalous under any circumstances and, seen in the context of
deliberate withholding of evidence, are tantamount to an obstruction of
justice. His predicament became even more serious when certain quarters
confronted him with the alternative of either giving up his appeal in
order to be sent back to Libya on the basis of a recently ratified
“prisoner exchange agreement” between the UK and Libya – or die in a
Scottish jail.
Under these circumstances, Scotland’s Cabinet
Secretary for Justice (who certainly has seen the latest medical
reports) should act without further delay on Mr. al Megrahi’s second
request (the first was rejected) for “compassionate release” under the
provisions of Scots law. This would allow the appeal to continue and
avoid the circumstances of “emotional blackmail” the Lockerbie prisoner
faces in regard to the prisoner exchange option. Apart from the
convicted Libyan national’s right – under the European Convention on
Human Rights and Fundamental Freedoms – to a proper judicial review, it
is in the supreme public interest of Scotland and the United Kingdom
that this second appeal proceed unhindered and that, eventually, a
decision be reached beyond a reasonable doubt. This fundamental
criterion of Scots law was not in any way met by the trial verdict and
(first) appeal decision of the Scottish Court sitting in the Netherlands
back in 2001 and 2002. The Opinions of the Court issued by the two
panels of Scottish judges were inconsistent and based almost entirely on
circumstantial evidence; on testimony of at least two key witnesses who
had received huge amounts of money; on the opinions of forensic experts
of, to say the least, dubious reputation and with problematic links to
intelligence services; and on at least one piece of evidence that had
been inserted at a later stage into the list of documents and apparently
been tampered with. Furthermore, vital evidence such as that of a
break-in at a luggage storage area at Heathrow airport in the night
before the departure of the doomed flight had been withheld from the
court during the first trial (a fact that still has not been properly
explained), and further vital evidence is still being withheld in the
phase of the second appeal due to the British Foreign Secretary’s having
issued a so-called Public Interest Immunity (PII) certificate. Concerns
similar to those which I had raised in my reports to the United Nations
Organization in 2001 and 2002 about improprieties, irregularities and
judicial malpractices have also been raised by the Scottish Criminal
Cases Review Commission (SCCRC) that, in June 2007, referred Mr. al
Megrahi’s case back to the appeal court, suspecting – as I had done on
the day of the original verdict on 31 January 2001 – that a miscarriage
of justice may have occurred. Regrettably, the SCCRC has decided to keep
some of the reasons for its decision secret.
The public is also kept in the dark about what
Scotland’s Justice Secretary discussed at his meeting with Mr. al
Megrahi at Greenock prison, which was indeed an unprecedented step in
Scottish legal history. One thing should be taken for certain, however:
If Mr. MacAskill is a man of honour, he will not have made granting the
prisoner’s request for “compassionate release” conditional upon the
latter’s dropping the ongoing appeal. This would not only be morally
outrageous, it would also be illegal in terms of Scots law and, as
infringement upon a convicted person’s freedom to seek judicial review,
in outright violation of the European Human Rights Convention the
provisions of which are binding upon Scotland.
If Scotland prides itself in its unique judicial
system, which it has practiced since long before devolution, the
authorities should exercise all efforts to repair the damage that has
been done to the country’s reputation by the flawed judicial proceedings
in the case of Abdelbaset Ali Mohmed al Megrahi. If Mr. MacAskill is
indeed serious about dealing with the matter strictly within legal
parameters, as he repeatedly said, the competent Scottish authorities
should finally make those steps that are necessary to identify the
actual “Lockerbie bombers” (in the plural!) wherever they may be and
however powerful they still may be, apparently having succeeded for so
long in using the Scottish judicial system to make Mr. al Megrahi a
scapegoat in the strange and ugly world of international power politics.
***
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