Whose Law is it Anyway?

This post was written by Guest Post on August 26, 2009
Posted Under: Criminal Justice,Terrorism,US Politics

Guest post by Ashen Rues

Abdelbaset al-Megrahi is not a name that trips easily off the tongue, but over the past few weeks his name has been mentioned more than any other. There is nothing better during a quiet summer than a small diplomatic row between allies and right now we have one mighty row, which will be over and done with by October, if not September. And Megrahi is at the heart of it.

Not to dwell on the actual terrible incident, but in 1988 a Pan Am jet was blown up over northern England and southern Scotland with most of the wreckage landing on the small Scottish town of Lockerbie. 270 people died. It was a terrible incident and no one can ever forget those images. But now, 21 years later, after a major trial, compensation claims and no clear indication of who actually did it, the wound has been opened up again by the release of a prisoner on compassionate grounds. This is a normal, if not frequent, happening under Scottish Law and would generally go un-noticed if it had not been for the prisoner in question. Megrahi was extradited from Libya and put on trial in 2000, sentenced to life imprisonment, with a recommendation that he should serve at least 20 years before being eligible for parole. So he has served 9. UN observers felt the trial was unfair and Megrahi appealed and was refused and further attempts to appeal were delayed by the Scottish Court of Criminal Appeal possibly in the hope that Megrahi would be dead before they had to deal with such an emotive case.

Megrahi will now die in Libya with his family, possibly in less than 3 months. The support for the decision in Scotland is based on the principals of Scottish law and Christian morality, according to Malcolm Chisholm, a former Labour minister who spoke in support of this decision in the Scottish Parliament on Monday. The Scots are now being threatened with boycotts by the USA, whilst the Scottish justice minister received a tongue lashing from the head of the FBI in a letter dripping with sentiment and emotion and reeking of hypocrisy.

The USA is criticising Scottish Law and Scottish legal decisions, suggesting that deals were done to secure Libyan oil and other trade deals. Deals may have been done; deals are done every day between nations. In the early 1980s, the USA was selling weaponry and expertise to the Iraqis for a war with Iran. Twenty years later, Iraq was enemy number 1 and Saddam Hussain had to be put on “trial” and die. This is real-politik and it often overrides any real justice or fairness. Fr the US to be bullying Scotland now is ridiculous. Scotland remains part of the UK, so where is the UK response to this bullying? Where are the voices of support from the PM or the Foreign Office? If California had released a prisoner on compassionate grounds against the wishes of Britain and this resulted in a campaign of criticism of and threats of boycotting of California, would we not now be hearing from Obama or Hillary? We need the same from the UK for Scotland. We cannot allow a legal decision (no matter what emotions is stirs up) to become a diplomatic incident between allies. Maybe the Scots don’t need or want defending by Westminster in their stoical independent stance, but when it comes to bullying, the bigger friend needs to step in regardless of how brave the victim feels.

At the end of the day, a man who is dying has been released to spend the last few months of his life with his family, in a process that is totally legal and fair under Scottish law. He is connected to one of the worst cases of terrorism ever witnessed but there it is clear he is a bit player and a distraction from the wider web behind the Pan Am bombing. It was always going to upset someone, but for it to become a huge diplomatic row reeks of smoke screens, secret deals and overreaction in order to placate grieving relatives.

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Reader Comments

Craig Petty

To suggest that the United States is making statements of outrage to somehow undermine Scottish law and use its power to push around the UK is ludicrous. 189 Americans died in the Lockerbie disaster, and the US government has the right to ensure that justice is served on behalf of its citizenry.

Written By Craig Petty on August 26th, 2009 @ 9:12 am

I have to say I’m not sure I agree with much of this post. You seem to be defending the position because it’s legally correct and advocating some kind of macho nationalism. I think most of us on the left have a reasonable critique of the law which goes something like this: the law is at points inherently unreasonable because of its basis and role in society, so we should criticise it where necessary, but similarly having a socially critical understanding of law, we should avoid using it as a justification for our views where it does exist to back them up.” Rather, I think we need to have some kind of moral or political argument about these sorts of issues. It is not enough to say that the US is diplomatically out of line, rather we should be saying that it is entirely reasonable under these circumstances for any prisoner to be released on compassionate grounds.

I have to say, I even laughed a bit at “Where are the voices of support from the PM or the Foreign Office?” – I mean do you really think that the people who have clamped down so heavily on criminals, and who have run a terribly conservative criminal justice system, are the best people to speak out here?

Written By Jacob on August 26th, 2009 @ 9:38 am
Frank U

Craig, of course the US has the right to ensure justice is served but the US changes its interpretation of laws whenever diplomacy requires it. Nothing will ever make the situation better. We know how many people died and how horrendous it was. They found parts of the plane and its cargo in my home town (in the north east). I feel the USA is making a louder fuss than it need to and Scotland has an independent and well respect legal system and if the UN felt the trial was flawed, then I am with them as well. The USA can complain all it likes but in a few years time it will be guzzling Libyan oil and sucking up the Gadaffi and similar despots. History repeats itself!

Written By Frank U on August 26th, 2009 @ 9:45 am

To give the most pedantic (and least political) answer, no they don’t. If they want further punishment they have the right to request extradition. To say they have the right to ensure that thier version of justice is served in another countries legal system is playing right into thier “world’s policeman” fantasy, which has a death toll considerably higher than 189 (ok, that got slightly more political towards the end).

Written By Michael on August 26th, 2009 @ 10:00 am

Sorry, didn’t notice above two posts. Mine was in response to Craig.

Written By Michael on August 26th, 2009 @ 10:01 am

This is one of the occasions where I agree with Jacob entirely — but in his conclusions and his reasoning. The poster is correct to understand that *to an extent* the Justice Minister’s hands were truly tied. I think his analogy of federal California with devolved Scotland is both legally and politcally flawed. Also, in procedurally prescribed decision-makining, we need to account for two things: first has the procedure been properly followed to achieve the decision in question; second, is the decision fair/just (or whatever normative consideration is relevant). You seem to think the first consideration (i.e. the procedure was correct) implies the validity of the second (i.e. it was a good one). I entirely agree with Jacob that we need to be socially critical of the law. It is a maxim of law that Justice must not only be done, it must be seen to be done. In this case, there I cannot say the two imperatives have been fully achieved.

Written By Tendai on August 27th, 2009 @ 4:54 am

Also, the involvement of the US is not at all rdiculous or unusual. Morally, politically, and legally it’s erfectly justified. Under internaional law, when an attrocity has been committed against the citizens or property of a state, it is entitled to assert an interest, and possibly jurisdiction, over it. So where an American jet with several American passengers, is blown out of the sky by a Libyan, over Scottish soil, four countries are perfectly entitled to assert an interest, and even legal jurisdiction (depending on such matters as the treaties that exist between them and diplomatic norms between them) over the issue. Morally, too, I don’t see why the US should be expected to simply remain silent, considering that its citizens were so prominently involved.

Written By Tendai on August 27th, 2009 @ 4:59 am

***This is one of the occasions where I agree with Jacob entirely — but in his conclusions and his reasoning.***
Should read “…BOTH in his conclusions and his reasoning”.

Written By Tendai on August 27th, 2009 @ 5:04 am
Michel V

Do those commenters above think it is ok for Scotland to be bullied or boycotted for making this decision? If Scot’s law allows for this decision,and I’ve not heard any criticism of Scots law in the past from our allies, then why should Scotland be bullied and boycotted? Emotion has to be taken out of legal decisions or the legal system would fail time and time again. The rule of law must be upheld. American morality and american emotions should be acknowledged but if the rule of law around the world was always decided by what the US wanted, we would be in quite a mess.

Written By Michel V on August 27th, 2009 @ 8:26 am


Surely the fact that a country’s legal system allows something doesn’t make that legal system, or the resulting decisions, immune to criticism? After all justifying the *morality* of an act on legal grounds is little more than an appeal to authority. I think we’re allowed to be more nuanced than that.
Second, the statute on which this decision was made doesn’t ‘force’ the Minister to free people on compassionate grounds, but requires him to take certain things into account when making a decision. To this extent, the minister does have an element of discretion, but one, I admitted above, that can hardly be exercised on arbitrary grounds. Judicial mercy has always been a discretionary prerogative, though it is usually — and rightly — exercised within an established framework. So I think there is ample room for criticism, when discretionary powers are exercised in such a controversial way.

Third, I find it hard to accept that emotional responses are irrelevant to legal decisions. The very notion of ‘justice’ is rooted in emotive concerns. So while legal decisions ought not to be arbitrarily weighted by emotional considerations, emotions will never be taken out of our responses to legal decisions (furthermore, based on how judges sometimes decide hard cases, I’d argue that emotions at times do determine the outcomes of cases. Examples abound, though they are usually justified by clever reasoning).

Fourth and finally, I don’t think it’s correct to simply see this as America throwing its weight about: America has every right to express anger in a diplomatic context, even if they ultimately accept Scotland’s (semi-) sovereignty. American citizens and interests were involved, and states have a long-accepted right to assume a concern (and in some cases jurisdiction) in extraterritorial crimes or wrongs that affect their interests or citizens. So I don’t think this is anything unusual or unexpected.

I continue to believe that this was an unfortunate decision, and one which was not, as some commentators make out, the only possible one in the circumstances. It is a justifiable, and legal decision, but possibly not a just one. I do accept, though, that short of prejudiced exercise of the rule of law, this was the only reasonable descision.

Written By Tenda on August 27th, 2009 @ 9:41 am

I’ve blogged quite a bit about this decision from a purely legal point of view – i.e. how the decision should have been made, and the defects in the way it was actually made. My conclusion is that Mr MacAskill failed properly to consider the fact that he could only release Mr Al-Megrahi on licence; and he failed to think about how that licence could be enforced in Libya (answer: it couldn’t be).

But be that as it may, obviously one can also question whether the law is fair or not. I think it vital that a just legal system contains a discretionary route for releasing prisoners on compassionate grounds. However, I think it quite wrong that that discretion be exercised by a politician, for reasons which are now be obvious. It should be left to a judge.

Written By Law and the news on August 27th, 2009 @ 6:50 pm

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