January 11 2011
Note: The following is an editorial written by Robert Forrester, Secretary of the Justicee for Megrahi campaign, first published Jan. 2 on the website of the Firm, re-published at the author's permission. Original link: http://www.firmmagazine.com/features/854/The_justification_of_abuse.html
Following the recent article ‘Cart before Horse’ published by The Firm on the 29th of December 2010, concerning some of the developments surrounding application by the Justice for Megrahi campaign group (JFM) for an independent inquiry into the 2001 Zeist conviction of Abdelbaset al-Megrahi for the bombing of Pan Am 103 in 1988, a question has been posed by a reader relating to the possible constitutional propriety of asking the Scottish Government to seem to be expressing doubt in a judicial decision by acceding to the demand for such an investigation. This self same suggestion has been put to the committee of JFM from both within and without the organisation on no fewer than three occasions in the last six months.
In actual fact, the practical issues with respect to this were comprehensively dealt with on the 9th of November 2010 during the meeting between JFM and the Scottish Parliament Public Petitions Committee (SPPPC), when one of the MSPs raised exactly the same point. At the time, Professor Black (JFM) established that there was precedent for the executive’s establishing inquiries into court judgements in Scotland, and whilst he as unable at the time of the meeting to provide references to precise cases, he did, as promised, submit such to the SPPPC by the end of business on the same day (see mail from Professor Black QC to the SPPPC appended below). This, therefore, deals with the immediate history and practicalities of the issue, however, it does not address the more general political and philosophical aspects of the relationship between the three powers of state in situations of this type.
In state constructs where absolute, usually monarchic, power reigns, legislative and judicial powers are, and always have been subservient to executive power. Nevertheless, even going as far back as classical Greece and Rome there has always been a consciousness that a balance of power needs to be struck between the legislature, the judiciary and the executive in order to ensure that no one of them can come to predominate. The importance of the separation of powers was further enshrined by Baron de Montesquieu in the early 18th century, and is frequently regarded as a kind of sacred touchstone of irreproachable and squeaky clean political conduct, which must never be transgressed. However, both the practice and appropriateness of regarding the separation of powers in such a sanctified manner is questionable and fraught with pitfalls.
To take a brief, simple and cursory glance at Westminster for instance. No one seems to have batted an eyelid at the fact that for centuries it has been perfectly acceptable for a member of the judiciary to be a member of the House of Lords (the legislature). So much for the practice relating to the separation of powers there then. The key question though is, as mentioned above, the one of appropriateness.
The principle of maintaining clear cut divisions between the three powers is, of course, vitally important in offering some, limited though it may be on occasion, guarantee that no one of the powers predominates and, equally importantly, in preventing interference of one of the powers in the affairs of another: typically political influencing of the judicial process by the executive. The latter point here is one which critics of the Zeist verdict, principally Professor Hans Köchler (UN appointed International Observer at Zeist), have suggested might have been at play in the trial. It ought to be mentioned at this juncture though that JFM’s position on the deliberations of their Lordships MacLean, Sutherland and Coulsfield when arriving at their verdict does not, nor has it ever, supported the view that the judges gave consideration to the political implications of their judgement. No such evidence exists for their having been involved in any sinister political conspiracy, indeed, far more understandable and less grave explanations could quite easily have been at play. That is not to suggest that there may not have been political machinations outwith their specific personal deliberations, and, in that respect, Professor Köchler could well be justified.
What lies at the heart of this is whom does the state exist to serve and whom does the separation of powers exist to serve? The answer, of course, is the citizens of the state concerned. This leads us to how best can the separation of powers serve the people. It may not be the most perfect analogy, but no computer, it hardware and software, is any better than the minds which create it or those who operate it. On the ground that none of us would claim to be immaculate, our political systems, however hard we strive for perfection, are inevitably going to, at some stage or other, reflect shortcomings in our creations. As such, we set up institutions that we can fall back upon to attempt to redress failings in our systems and their practice. In the context of the judiciary, one most obvious example of this is courts of appeal. Thus, we can take steps to remedy potential miscarriages of justice.
As we all know, Mr al-Megrahi’s appeals process has not been fully put to the test in law, this then leaves us with a highly unsatisfactory situation, where a man might well have fallen victim to a wrongful conviction and so long as the executive arm of state maintains its satisfaction with the verdict from the court of fact (Zeist) there is no ultimate recourse to justice; it is neither done, nor is it seen to be done. Therein lies the failure inherent in maintaining the separation of powers as an immutable Holy Grail.
Whilst JFM has on a multitude of occasions outlined in considerable detail why it believes Mr al-Megrahi’s case is deserving of an inquiry - not because the organisation is saying that the judges were wrong, but simply that the verdict appears incomprehensible in terms of the standards of proof required to reach it beyond reasonable doubt – the Scottish Government clearly seems to be presenting its case on the back of the fact that for the executive to doubt the conduct of the judiciary is to contravene the sanctity of the separation of powers. Indeed, in doing so, the government can even evade the possible embarrassment of acceding to JFM’s wish for it to outline the reasons for its satisfaction with the verdict.
Quite apart from the fact that JFM has supplied the Scottish Parliament with examples where inquiries have been set up to investigate judicial decisions in the past, such an attitude, as is being demonstrated in the Scottish Government’s confidence in the Zeist judgement, is nothing short of an abuse of the separation of powers. This political creed (the separation of powers) exists to avoid problems such as perceived interference between the executive and judicial powers of state, not to create or enhance them.
With respect to the type of case under discussion, insofar as the separation of powers is vital in preventing political expediency influencing the conduct of the judicial process, it also critically important that the separation of powers must not be used as a tool to impede justice. It is for that reason that the power to establish inquiries into the activities of the judiciary rightfully exists, and rightfully exists in the hands of the executive. To prevent inquiries of this nature from taking place on the ground that the separation of powers is sacrosanct is to say we are comfortable in maintaining a system which has ossification inherent within it and is willing to countenance the perils of convicting the potentially innocent.
One feels bound to say that this might not have been exactly what de Montesquieu had in mind. Whereas the essence of the separations of the powers of state is to avoid the corruption of power, to advocate its use in such cases as this is to justify it as a means of instituting that very thing itself: corruption.
It is well within the scope of the Scottish Government to open an inquiry into Lockerbie/Zeist without manipulating irrelevant constitutional implications. Furthermore, it is a deeply sad comment on an executive, if it chooses to sacrifice justice on the altar of a conveniently selective interpretation of constitutional law.
Robert Forrester (Secretary, Justice For Megrahi).
Robert Black's e-Mail
Here is the text of my e-mail to the Scottish Parliament's Public Petitions Committee (referred to by Robert Forrester):
I write in response to the issue raised in this afternoon's hearing regarding the constitutional propriety of a judicial decision's being referred to the Scottish Law Commission for consideration.
I know that my former student [X] has e-mailed you drawing attention to the SLC's Report on Sharp v Thomson (Scot Law Com No 208, 2007). In this instance the reference was made to the Commission by the Scottish Ministers. Another example that springs to mind is the Commission's report on Dorchester Studios v Stone, published as Irritancies in Leases (Scot Law Com No 75, 1983). Here the reference was made by the Secretary of State for Scotland, but if it were to occur today, it would be the Scottish Ministers who would do it.
There are other examples -- both before and after devolution -- of decided cases being referred to the Commission, but I hope these two will suffice to reassure the Committee of the constitutional propriety.
May I also say that the powers which now repose in the Scottish Ministers to recommend the exercise of the royal prerogative of mercy in the case of a convicted person would involve the institution by those Ministers of an inquiry into the safety of the conviction in question. Once again, there is no constitutional impropriety in this -- indeed it is the only way in which the decision whether to recommend the exercise of the prerogative can properly be taken.
Professor Robert Black QC