Desperate measure to influence the conduct of the court

[What follows is the text of a statement issued on this date in 2008 by Professor Hans Köchler:]

Los Angeles, 25 February 2008

P/RE/20878c-is

Upon conclusion of an information and consultation visit on international law issues to the Asia-Pacific region, Dr Hans Koechler today issued the following statement on the decision of the United Kingdom’s Foreign Secretary not to allow the disclosure of a document, provided by a “Foreign Government,” that is related to the electronic timer device which supposedly triggered the explosion of a bomb on board Pan Am Flight 103:

1. The continued withholding of evidence related to the case of Abdelbaset Ali Mohamed Al Megrahi makes a new appeal actually impossible.  Should the document in question not be made available, criminal proceedings under Scots Law will have to be terminated.

2. The behavior of the British Government is in contravention to the commitment it made vis-à-vis the United Nations Organization prior to the adoption of Security Council resolution 1192 (1998) to enable a fair and independent trial of the two Libyan suspects in the Lockerbie case under Scots Law.

3. The invocation of “Public Interest Immunity” (PII) – unprecedented in the history of Scottish criminal justice – is tantamount to political interference into the Appeal Court’s conduct. It is obvious that criminal proceedings cannot be fair if the Defense is denied access to a piece of evidence (document) which has been revealed to the Prosecution.

4. Under the highly politicized circumstances of the Lockerbie Trial, the issuing of a PII certificate by the Foreign Secretary of the United Kingdom appears to be a rather desperate measure to influence the conduct of the court in a manner favorable to the British Government; it further strains the constitutional relations between Scotland and the United Kingdom.

5. The separation of powers between the Executive and Judiciary is a basic characteristic of the rule of law. In the present case, this principle is violated because of the outright interference of the British Government in a matter of the Scottish Judiciary.

6. The British Government’s interference makes devolution of authority in matters of Criminal Justice to Scotland entirely meaningless.  What is the meaning of “devolution” if a Scottish Court is prevented from operating according to its own rules? Scots Law is not to be administered under the terms of a Protectorate. The crucial question will now be whether the Scots will be able to assert their (constitutional) independence in devolved matters.

7. It is to be hoped that the Scottish Judges will uphold the independence of the Judiciary and will reject the British Government’s interference. A court of law is transformed into a political body should the Judges allow this kind of interference.

8. The persistent refusal of the UK Government to allow the disclosure of vital evidence to the Defense points into the direction of a cover-up. In the context of the irregularities at the Lockerbie trial and appeal in the Netherlands  (described in the undersigned’s reports of 2001 and 2002), this development demonstrates the need for an independent investigation under a United Nations mandate– especially since the Scottish Criminal Cases Review Commission has declared that a “miscarriage of justice” may have occurred.

9. The convicted Libyan national has a right to a genuine judicial review of his verdict outside the confines of international realpolitik. In June 2007 the Scottish Criminal Cases Review Commission referred his case back to the High Court of Justiciary for a second appeal. If appeal proceedings are now made impossible due to the British Executive’s interference, Mr Al Megrahi will be denied his right to fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this case, he will be entitled to proceed to the European Court of Human Rights in Strasbourg.