Thoughts of reform

17 July 2010

What are the terms employed and which ideas form the basis of a discussion on a reform of the justice system for different nations? What causes these debates and how do these profound motivations vary from one society to the other? Are we all moved by the same irregularities, abuses or voids in the justice arena – or can we talk about different sensitivities from one cultural space to the other, as much as we talk about changes in people’s preoccupations with the laws and justice system in different times? I tend to believe that our sensitivities and motivations vary, indeed, in space as much as (if not more) in time.

Thoughts on Reform - page 3

From one extreme …. (Romania)

I noticed that in Romania the judicial reform is made possible by scandals in the magistracy. I am referring, of course, to the “Voicu effect”, a crisis that is not only judicial, but also political and politicised. For that matter, a programme director of the Konrad Adenauer Foundation, Stefanie Ricarda Roos, states that “the judicial reform rests on a political decision” (22, 30th March – 5th April 2010, p. 9). I don’t intend to discuss here the Voicu scandal per se, nor its chances to have a significant effect on the Romanian judicial system.

I only mean to underline the actual fact that there is an interrelation of the cause-effect type between the two events: the emergence of Voicu stenographs and the magistrates’ attempt to initiate the judicial reform, with the support of the civil society. I would like to point out another aspect of this attempted reform – its ethical aspect, explicitly ethical: “the system must be reformed from the inside and this reform must be a moral one, not just a judicial one” (Andreea Pora, 22, p.1). The fact is, I believe, significant for the chronic needs and sufferings of the Romanian society.

… To the other (UK)

What has been happening in Great Britain for a few months now can be described as the opposite of the situation in Romania, although lacking the essential motivational factor: corruption. We talk about demands for political reform (namely, of the methods to monitor counter-terrorism activities) brought about by a court decision in a case involving the secret services. They were accused of breaking the human rights in the way they treated Binyam Mohamed, a former Guantanamo Bay prisoner. But, let’s retrace the series of events.

In March 2005 the government’s Intelligence and Security Committee (ISC) publishes a report according to which the M15 and the M16 perform their activities in compliance with the human rights requirements, and the coercive interrogation techniques would be “completely foreign” to the ethics, methodology and training of the secret services personnel.

In July 2007 ISC publishes a second report where they reiterate the fact that the secret services were not aware of any coercive treatment applied by the United States to terrorism suspects. According to subsequent evidence, at least one M15 officer was directly involved in interrogation by coercive methods of Mohamed Binyam.

Meanwhile, the case of Mohamed Binyam (British resident of Ethiopian origin, tortured in the United States, under accusations of terrorism and subsequently imprisoned in Guantanamo Bay) was gaining momentum in Great Britain as well as on the American side with profound political and diplomatic implications. During the course of the legal investigation it became apparent that M15 concealed from the committee designed to monitor its activity (ISC), 42 documents that prove that its officers knew that Mohamed Binyam had been tortured before they set off to Pakistan to submit him to interrogation.

The conclusions of the judicial committee in Great Britain, chaired by Lord Neuberger, are devastating for the image of the secret services as well as for the government committee intended to monitor them. In fact, they are so critical that in December 2009 a meeting is organised to decide whether the judicial committee’s decision should be made public or not.

In February 2010 the Court decided to publish the judicial committee’s decision chaired by Lord Neuberger. The central paragraph in his speech (Paragraph 168) clearly states that: a) the two reports – in 2005 and 2007 – of the Committee (ISC) are false; b) the Committee knew that at least some of the security officers were aware of the coercive methods of interrogation that were applied to Mohamed Binyam; c) although the good faith of the Foreign Secretary (at the time, David Miliband) is not disputed, the mechanism used to issue government documents regarding the activity of the secret services (that is, on the basis of the information received from their staff) is, evidently, inadequate and, as such, it must be revised. According to Lord Neuberger’s conclusions, “some security services officers appear to have a dubious record relating to actual involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials” (Binyam Mohamed judgement: Paragraph 168, in The Guardian, 26 February 2010). Given this direct statement about MI5’s involvement in torture, the very decision to publish the judgement is no less remarkable than its conclusions. It’s worth noting the Court’s emphasis on the independence of justice principle when it reached its decision, in early February 2010: “The judges – Sir Igor Judge, the lord chief justice; Lord Neuberger, the master of the rolls; and Sir Anthony May, president of the Queen’s Bench – also stressed the importance of the media in supporting the principle of open justice in a case which, they said, raised issues of “fundamental importance”, of “democratic accountability and … the rule of law itself”.” (Binyam Mohamed court ruling shatters spies’ culture of secrecy, in The Guardian, 10 February 2010).

Following the publication of the judicial committee’s results, the reaction from the civil society was to demand the new coalition government to initiate a public investigation into the involvement of British institutions in acts of torture. The most important NGOs that promote the observance of the human rights not only on the island, but also internationally (such as Liberty and Human Rights Watch) criticise harshly the government’s attitude with regard to a possible breaking of the fundamental human rights by British officials and request urgent measures to restore the reputation of champion of human rights that Great Britain enjoyed until not so long ago. Two parliamentary committees also request an independent investigation to establish whether Binyam Mohamed was tortured after his arrest in 2002 and whether British officials were aware of this fact.

At the end of May, the new Foreign Secretary (the Conservative William Hague) declared his intention to authorise the start of such an investigation under judicial control. At present, the metropolitan police investigate the role that the British security officers played in the interrogation of Binyam Mohamed. A month later, and the terms and conditions for an independent investigation are still being discussed. I don’t think it comes as a surprise that the M15 would rather the investigation didn’t take place in court, meaning during a long legal trial. Lord Carlile, the government adviser in the current process of revising the anti-terrorism legislation, advocates an investigation under judicial control. In an interview for the BBC, Lord Carlile declared, “I think a judge-led inquiry will have the advantage of a rigorous investigation of allegations that are made, the protection of national security, and the award of compensation to anyone who is able to prove on the balance of probability that they have been tortured or otherwise subjective to inhuman or degrading treatment” (Lord Carlile on torture inquiry announcement, BBC 29 June 2010). It will be interesting to see which side of the argument (the political or the legal one) will weigh more in the balance when taking the decision as to which kind of investigation will those British institutions accused of breaching human rights be subjected to.

And the Latin eternal…

Robert Hussein is only a judge in the figurative sense of the word – through his art and especially through the plays he stages. In recent years, his greatest theatrical achievements have been re-enactments of some famous court trials: L’Affaire du courrier de Lyon, Je m’appelais Marie-Antoinette and L’Affaire Seznec. In an interview published in Le Figaro Magazine on the 6th of February 2010 (p. 84), the journalist asks him how he sees (or what would entail) a reform of the justice system. Hossein answers promptly:…

By all means, you will say (and rightly so) that such reference points are purely circumstantial and that the reason for choosing them is as controversial as the subjects taken as examples. What I intended to say is that the discussion regarding what causes the need for reform in the legal field (or educational, political, economic etc.) is worth having. It is not only a good opportunity for applied hermeneutics, but also a chance to understand something with regard to the human nature and its manifestations in different social and cultural spaces, on one side, and the dominant features of the reality within those spaces, on the other. For instance, the fact that today Romanians are extremely sensitive to corruption, whilst the observance of the human rights is a priority for the British and the individual experiences of the victims of injustice stirs the French, says something about the times we live in.