Cart before the horse

January 11 2011

Note: The following is an editorial written by Robert Forrester, Secretary of the Justicee for Megrahi campaign, first published Dec. 29 2010 on the website of the Firm, re-published at the author's permission. Original link: http://www.firmmagazine.com/features/853/Cart_before_the_horse.html

Tuesday the 21st of December 2010 marked the 22nd anniversary of the Lockerbie tragedy, and, yet again, the megaphones of the self righteous upholders of our sacred establishment were turned up to full volume broadcasting their moral rectitude, their contempt and their outrage at the compassionate release of the ‘Lockerbie bomber’ by those contemptible money grubbing Brits. And who do these Scots think they are, by the way? How dare their ministers refuse to appear before us to account for their sins?

What’s more, they’re obviously barbarians, just look at them, the men dress up in skirts! Perhaps I am just old fashioned, but, what is it about these politicians, whose currency is emblazoned with the strapline “In God We Trust”, and yet are so utterly oblivious of the need for common courtesy and respect to be shown to the bereaved of Pan Am 103 on the 21st of December? For the families and friends of that fateful flight in 1988, this day is their day of remembrance; a day for them to be left in peace. It is not a day for American senators: Gillibrand, Lautenberg, Menendez, and Schumer to vent their views on Mr al-Megrahi’s repatriation.

Not content with having openly demonstrated their comprehensive ignorance concerning, amongst other things, the fact that Scots law differs in a variety of substantial respects from English law, succeeded in muddling up the compassionate release with the Prisoner Transfer Agreement (PTA) and, moreover, made a most embarrassing public display of exhibiting their impotence when attempting to get those insolent Scots provincials, Messrs Salmond and MacAskill, to comply with their senatorial diktats, they now seem to consider it appropriate to trample over the sensibilities of those for whom the 21st of December will forever be a day cast with pain. Far be it for any of us to suggest that, prior to the November mid term elections, the US senators might initially have hyped up the release for their own cynical political advantage, however, to further raise the issue on the 21st betrays any sense of civilised decorum.

Predictably, the Scottish Tories too have fallen into line by bemoaning the fact that Mr al-Megrahi still hasn’t been invited to atone for ‘his’ heinous conduct before a “higher power.” Nothing new there then, Britain is still “self evidently the junior partner”, as Prime Minister Cameron clarified in his ‘Special Relationship’ gaffe. Such exquisitely tactless timing, of course, is nothing new. On the occasion of the 20th anniversary in 2008, Peter Fraser (AKA: Baron Fraser of Carmyllie, the Lord Advocate who brought the indictments against Messrs Fhimah and al-Megrahi no less) thoughtfully impressed the world with his psychology credentials by suggesting that one of the bereaved (Dr Swire) was suffering from Stockholm Syndrome.

Only the bereaved can truly claim the right to represent themselves on this annual commemoration. Whether they do or don’t doubt the safety of the Zeist verdict, they all deserve to be allowed the freedom and dignity to mourn their losses without politicians and other commentators utilising the occasion as an opportunity to exercise their crass and frequently ill-informed opinions. Given that Senator Menendez does not believe that Mr al-Megrahi is terminally ill anyway, he could presumably have held back the senators’ report until the anniversary of the verdict (the 31st of January), but perhaps that wouldn’t have had quite the same impact on the US market. After all, the senate wants to restrict the matter to the release and to speculating on the relationship between medical practice and business interests. Therefore, to associate the publication of their conclusions with the date of the judgement would inevitably attract even more attention to the issue of a possible miscarriage of justice at Zeist. And the last thing that ‘anyone’ wants is to query legal practice, isn’t it?

However, the on-going vaudeville being played out across the Pond has unquestionably had some quite unusual repercussions in Scotland. Firstly, SNP activists clearly owe a deep debt of gratitude to Menendez et al for achieving something that no amount of campaigning could. The Senate’s antics managed to recruit massive support from almost all the ‘barbarian’ inhabitants of Scotland behind their champions, Alex Salmond and Kenny MacAskill, in their refusal to become subservient to Washington’s arrogance when requiring that Scottish ministers subject themselves to the circus in person. Quite an accomplishment indeed.

The SNP must now be praying that the Washington mob start shooting from the hip again just prior to the forthcoming 2011 Holyrood elections. Never ones to look a gift horse in the mouth, the Justice For Megrahi (JFM) campaigners got in on the act too. Given all the righteous talk of opening an inquiry, JFM sent individual letters of invitation to the senators to join up as signatory members of its quest for an inquiry to be set up. Nor did it stop there. JFM also invited Alex Salmond and Kenny MacAskill to become members of the campaign group. Despite the gravity of the Lockerbie/Zeist case, never let it be said that JFM doesn’t have a sense of humour!

No doubt in part due to their busy election schedule, not one of the senators deigned to reply. Not so our Scottish ministers. It’s all in the breeding, you see. As expected, the ministers felt it inappropriate to accept the JFM invitation, however, in a letter to the organisation from the Scottish Government Justice Directorate, the government considerately outlined its reasons for not establishing an independent inquiry into the Lockerbie/Zeist case under the auspices of the Scottish Government. The message contained in the letter was nothing new or unexpected, in fact, it was identical to a statement made by Mr MacAskill shortly after Mr al-Megrahi’s release, namely: the Scottish Government does not possess the power to open such an inquiry due to the international facets of the case, it ought to be sanctioned by a body with the requisite powers to do so, and finally, the government “do not doubt the safety of the conviction of Abdelbaset Al-Megrahi.”

The position of the government on this issue is one which leaves the party’s supporters with considerably less cause for celebration than the input of the US Senators. SNP activists quite openly express their befuddlement and even anger at the government’s stance. JFM has no allegiances to any political parties but does empathise with those members of the SNP who can’t comprehend the government’s reaction to what, on the face of it, seems to be an electoral gift to a party that professes its very raison d'être is Scotland’s independence from the UK.

On the 9th of November, armed with its public e-petition, JFM persuaded the Scottish Parliament Public Petitions Committee (SPPPC) to write to the Scottish Government asking it to cite the legislation it is relying on to support its somewhat disingenuous contention that it lacks the power to sanction an inquiry into matters which fall squarely and exclusively under Scottish jurisdiction. [ed - see the video of that powerful session here] The SPPPC graciously gave the government until the 10th of December, an entire month no less, to locate just such legislation. Three weeks after the deadline, the government has still failed to reply. Surely it can’t be, given the legions of legal advisers at its disposal, that the government’s claim is fallacious after all. It’s all a bit embarrassing really. On the one hand, the SNP seems to want to break Scotland’s ties with the Union, whilst on the other, the behaviour of the government in abrogating its responsibilities on this matter leaves one with the image of the First Minister clinging on to the apron strings of mother Britannia.

It won’t be much of a vote winner amongst the electorate who are concerned about the direction the criminal justice system is currently moving in if the government finally has nothing left to resort to other than mimicking UK Foreign Secretary William Hague’s recent remarks by saying that an inquiry wouldn’t be in the public interest. Nor will it enhance the SNP’s democratic credentials if the government is seen to give the SPPPC the brush off. The SPPPC has the potential to become one of the most democratic developments in recent UK political history. What petitioning in Scotland needs is more power; such as would bind the government by statute to the holding of referenda when a petition attracts a given percentage number of signatories, for example.

Ultimately, should the government produce no legislative support for not opening an inquiry into a wholly Scottish legal case, JFM’s position will be vindicated and, by dint of this, the question of endorsing an inquiry held by some body with international authority will automatically be rendered totally redundant as the ping pong ball that has been batted backwards and forwards between Edinburgh and London finally comes to rest at the doors of Holyrood. The only straw which will then remain for the government to grasp on to will be its satisfaction with the safety of the conviction. JFM’s position on the verdict has been widely and comprehensively disseminated throughout the public domain since it commenced campaigning for an inquiry. JFM has itemised in considerable detail its reasons for having doubts over Lockerbie/Zeist, the government has yet to reciprocate.

It could be a mistake though to come away with the impression that the dead hand of the Crown might not have been making its presence felt in all of this. In fact, through both their actions and inaction, the government and the parliament have been instrumental in providing the High Court of Justiciary, and, therefore, the civil service, with unprecedented and final powers to accept one application for appeal and reject another. Not only does this introduce a dangerous conflict of interest into the justice system, but it also disposes of the essential independent scrutiny that is provided by the Scottish Criminal Cases Review Commission (SCCRC) and clearly poses a new and significant obstacle in the path of anyone considering the reopening of Mr al-Megrahi’s second appeal in the interests of justice.

Moreover, the government seems quite reluctant to lift the legal consent requirements which are hindering the publication of the SCCRC’s statement of reasons for referring Mr al-Megrahi’s case back to the court of appeal.

Our legal system may well have its imperfections, one of the reasons we have a court of appeal is to try to address possible shortcomings in the system and in its functioning. The SCCRC’s grounds for Mr al-Megrahi’s second appeal have yet to be tested in law. Until the question marks which continue to hover over this case are cleared openly and independently, there will always exist the suspicion that the actions of the civil service and governments are more concerned with the protection of the reputations of individuals in preference to the reinstatement of the reputation of Scottish justice.

One particularly sobering thought resultant from Zeist must surely be that if anyone ever manages to establish that Mr al-Megrahi was in fact a victim of a miscarriage of justice, and had he been tried by an American court, he would almost assuredly not be alive today.

So, to return to our friends in Washington, what’s the beef? Many wonder what can be so important that you need to invade a private day of grief and mourning for individuals who have become random victims of fate with your speculative theories. After all, it’s not as if the hegemony of those who uphold the safety of the Zeist verdict is losing the battle. Except, of course, for the moral one, where the more draconian their actions (see section 7 of the ‘Cadder Case’ Legislation) and the more vapid their excuses (see the Scottish government’s reasons for not opening an independent inquiry), the more suspect this whole affair looks. Perhaps it might be a good idea to have an inquiry into the safety of the conviction before we sound off too much about investigating the compassionate release of Mr al-Megrahi. Just a passing thought.

Robert Forrester (Secretary, Justice For Megrahi).