Some thoughts on the Megrahi case…

This post was written by Dan on August 27, 2009
Posted Under: Terrorism

Often, when making legal decisions, there is a clamour that we consider the opinions, feelings and position of the victims, and (especially in cases of murder) often this is defined loosely so as to include the victim’s family and friends. Over the past decade or so this has become increasingly enshrined in the actual making of decisions, with things like statements from the victims family becoming part and parcel of the legal process. During the debate over the release of Abdelbaset al-Megrahi last week these tried and tested invocations made many appearances. Most opponents of his release accused the Scottish Justice Minister of some disrespect or other towards the victims family.

But surely there’s a problem here. For every one of the victim’s families outraged by the decision there seems to be another who was in support of it. There seems to have been a split broadly correlating to the Atlantic Ocean, and last week ITV News had an extraordinary row between the mother of an American victim and the father of a British one (sadly I can’t find a clip online) over whether he should be released. This is no doubt in part due to the opinion of many of the British families that Megrahi was innocent, but even beyond that many are motivated by forgiveness and some sense of natural justice.

So how is ‘taking the victims’ families into account supposed to work in this case? Do we, as seems to be implied by the opponents of his release, give a veto to any member opposed to his release? Do we get them all in a room, caucus and take a vote? Perhaps they cancel each other out, or perhaps only some of their opinions should be considered, maybe some sort of representative panel? Or maybe, just maybe, should we think very, very carefully before giving the victims’ families any greater weight than anyone else in this decision?

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Reader Comments

SDU

I dont think we can take the victim’s families thoughts into account. It is a legal decision and if Scottish law allows prisoners to be released if they are dying, then so be it. It doesnt remove his guilt. Libya coughed up compensation for the victims and as Megrahi was a small cog in the machine that lead to this act of terrorism, let him die with his family, then lets disect the law without emotion. The USA would never let the Scottish criticize its laws and legal decisions with such vehemence.

#1 
Written By SDU on August 27th, 2009 @ 4:05 pm

Interesting point, Dan. There has, as you say, been a push to take victims’ or their families’ views into account in relation to sentencing. This was a different issue: whether he should be released by Mr MacAskill on compassionate grounds. There was no express requirement on him to consider the families’ views, though I can’t think that it would have been wrong for him to have done so.

#2 
Written By Law and the news on August 27th, 2009 @ 6:03 pm
Tendai

SDU

I disagree with you. Your notion of justice here is being confused with the notion of rule of law. To say “It is a legal decision and if Scot[s] law allows prisoners to be released if they are dying, then so be it”, is to talk over a lot of the argument. First, as said many times, this power is discretionary. And, as Law and The News says, there are valid questions about whether it should be exercised by a politican. In other words, from the fact that such a power exists, it does not follow that that is the end of the story, or that it is immune to critcism.

Second, how about let’s dissect the law with emotion. Laws are created by man, and ideally serve our purposes. Speaking of justice as though it’s some abstract concept of ‘pure reason’ is to go down the ‘nonsense on stilts’ route.

#3 
Written By Tendai on August 27th, 2009 @ 7:48 pm
Tendai

Dan,

You raise some interesting points: Is taking victims’ views into account a relevant concern of justice, and should it be? IF taking the victim’s families’ views into account is a relevant consideration to justice, then can those views ever be realistically reflected?

My view of this is that, obviously victims are not arbiters of the law, and the procedural considerations of justice should be left to the apparatus of law. It’s trite law to say that legal decisions should be made though procedurally relevant, and objective criteria. But I think the reactions of victims and their families are a barometer we should not ignore when judging the effectiveness of the law. It’s no coincidence that much law reform in this country happens after some serious, often highly publicised miscarriage of justice.

In a more philosophical sense, I think it’s easy to forget the fundaments of the concept of justice. Justice in general, and punishment in particular, serve, among other purposes, the purpose of expressing society’s solidarity with the victims of a crime or wrong. At least in part, justice IS about siding with the victims.

#4 
Written By Tendai on August 27th, 2009 @ 8:11 pm

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