CIAO DATE: 1/99

The Cumaraswamy Case: Preserving the Independence of UN Human Rights Mechanisms

Lawyers Committee for Human Rights

Dato’ Param Cumaraswamy, a Malaysian attorney, is the United Nations Special Rapporteur on the Independence of Judges and Lawyers. He is mandated by the UN Commission on Human Rights to investigate attacks against the independence of lawyers and judicial officials, to report his findings, and to recommend steps to improve judicial and legal independence in countries around the world. He is not paid for this work; in fact, his attention to judicial problems in his own nation has cost him substantially, both compromising his ability to earn a living and subjecting him to huge potential penalties in connection with lawsuits against him. Although he should enjoy immunity when he works as a UN expert, the Malaysian Government has allowed four criminal lawsuits to proceed against Mr. Cumaraswamy that allege over US$100 million in damages. These lawsuits were brought by four different commercial interests in Malaysia with close ties to the Malaysian government.

Mr. Cumaraswamy, 57, is one of Malaysia’s leading lawyers. He is a past president of the Malaysian Bar Council and was Chief Executive Partner of the firm of Shook Lin & Bok until he felt compelled to resign in October 1997 to protect the firm from the potentially harmful impact of the litigation against him. Mr. Cumaraswamy has also played a distinguished role internationally, as a former president of the regional professional association LawAsia, a member of the International Commission of Jurists, and a board member of leading non-governmental organizations including the Centre for the Independence of Judges and Lawyers and the international freedom of expression organization Article XIX. He was appointed to his present position of Special Rapporteur on the Independence of Judges and Lawyers in 1994.

The politically motivated prosecutions against Mr. Cumaraswamy have damaged him both personally and professionally. Already they have cost him US$60,000 in court costs, as well as forcing him to leave his law firm. More broadly, the prosecutions reflect a growing resistance by governments to the UN’s attempts to develop effective machinery and enforcement mechanisms against rights abuses, and unlawful state behavior.

As a Special Rapporteur, Mr. Cumaraswamy personifies a major development in the United Nations monitoring scheme: he is one of a growing corps of human rights experts assigned to report on a particular country or thematic area. The first Special Rapporteur was appointed in 1979 to examine the situation of human rights in Chile in the wake of the 1973 military coup; today, more than 20 rapporteurs work on a variety of country-specific situations or Athematic procedures, dealing with such issues as torture, extrajudicial executions, and the independence of judges and lawyers.

The UN human rights monitoring scheme was further strengthened in the early l990s, with the end of bitter conflicts in Cambodia, Haiti, and El Salvador and the establishment of the UN’s first human rights field missions. With the creation of war crimes tribunals for Yugoslavia and Rwanda, this monitoring expanded to include criminal investigations. UN human rights experts now work in more countries, investigate more issues, and perform more sensitive functions than ever before, carrying out legal and investigative tasks that national judicial systems have failed to undertake.

As the UN builds its capacity to confront the worst abuses, it has met resistance from those governments that are under scrutiny. In Rwanda, five members of the UN’s human rights field mission were murdered in early 1997. Investigators for the war crimes tribunal for the Former Yugoslavia needed NATO’s military assistance to reach mass grave sites (which local judges couldn’t or wouldn’t investigate). After Laurent Kabila overthrew Zaire’s government, his military engaged in a protracted series of harassing activities which ultimately prevented the UN’s mission of inquiry from investigating the mass killings of refugees in eastern Congo. In November l998, the Special Rapporteur for Myanmar (Burma) was again denied permission to visit the country. In many places where UN monitors have been active, governments have sought to obstruct their work and dilute reports of official abuse or limit the scope of their public dissemination.

The case against Mr. Cumaraswamy is the most recent, and potentially the most corrosive to the UN’s human rights institutions. The basic facts of the case are not in dispute. Soon after his appointment as Special Rapporteur, Mr. Cumaraswamy announced that he would investigate allegations of corruption in the Malaysian judiciary. There were ample grounds for conducting such an investigation. The independence of the Malaysian judiciary had been a serious concern since 1988, when a number of Supreme Court justices were removed by the government and the first of a series of constitutional amendments was introduced, severely circumscribing the role of the courts. In addition to this strengthening of executive powers over the judiciary, the Bar Council of Malaysia voiced growing concern in 1994–95 about manipulation of the courts by private parties, including powerful members of the corporate community.

A London-based magazine, International Commercial Litigation, interviewed the Special Rapporteur about these allegations for a story that appeared in its November 1995 issue, entitled “Malaysian Justice on Trial.” The Special Rapporteur commented that, “Complaints are rife that certain highly placed personalities in the business and corporate sectors are able to manipulate the Malaysian system of justice.” He stressed, however, that he had reached no definitive conclusions since his investigation was incomplete: “I do not want any of the people involved to think I have yet made up my mind.” Mr. Cumaraswamy also took pains to note that he was speaking in his official capacity as UN Special Rapporteur. After the publication of this interview, the Special Rapporteur was named in four defamation suits alleging over US$100 million in damages.

Despite a finding by the UN Secretary General that the Special Rapporteur enjoyed immunity from all legal process under international law [the 1946 Convention on the Privileges and Immunities of the United Nations], the Malaysian government and courts allowed the litigation to proceed. Concluding that they, and not the Secretary General, had the authority to decide on immunity questions, Malaysian courts also largely ignored a UN request to stay proceedings pending resolution of the difference between their government and the United Nations. Pursuant to the provisions of the Convention, the UN has now referred the case to the International Court of Justice (ICJ).

The assertion by the Malaysian government that its courts should judge the claims against the individual that is investigating the independence of the country’s judiciary comes against the backdrop of a political crisis that has focused international attention on this very issue. A bitter political battle between Prime Minister Mahathir Mohamad and his chief rival, former Deputy Prime Minister Anwar Ibrahim, has been carried into the criminal justice system. Mr. Anwar faces charges of corruption, sodomy (which is illegal in Malaysia) and abuse of his official position to interfere with criminal investigations. These charges come amidst allegations that prosecution witnesses were coerced, and several defense lawyers report harassment. One of Anwar’s lawyers, Zainur Zakaria, has been jailed for contempt. Concerns over the trial’s potential unfairness attracted several international human rights groups to Malaysia to observe the proceedings, but Prime Minister Mahathir refused to grant them observer status.

The issues before the ICJ have fundamental and potentially drastic implications for the international system of rights protection. The Court has been asked not only to rule on whether Mr. Cumaraswamy is in fact immune — i.e., whether the questioned words were “spoken in the course of his performance of his mission/duties” — but also on who should decide the scope of an expert’s immunity: is it the Secretary General or the authorities of the state being investigated? While the ICJ has ruled that Special Rapporteurs are generally entitled to immunity under the Convention, it has never before been asked to consider who should determine that immunity when a dispute arises.

The Lawyers Committee agrees with the Secretary General that the question of immunity is for him alone to determine; that states must give prompt effect to the Secretary General’s determination, where necessary by halting the proceedings; and that if states disagree with his determination, they may seek to invoke the ICJ’s binding jurisdiction to resolve their difference.

It is difficult to imagine how national courts could exercise the authority claimed by Malaysia without posing a danger to international law and the UN’s system of human rights protection. At best, the decisions of different countries would be inconsistent with each other. At worst, the specter of litigation is likely to discourage many experts from accepting or renewing UN appointments. Others might choose to curtail their activities, avoiding certain countries or issues. The pool of readily available human rights information would almost certainly shrink. One of the expert’s key functions — that of public education — would wither.

An expert’s vulnerability to national litigation might encourage other nations to follow Malaysia’s example. Many governments have displayed consistent hostility to national and international human rights monitoring — Liberia, Belarus, Myanmar, Iraq and Cuba are but a few examples. If the ICJ decision leaves the way open for UN experts to come before national courts, some, perhaps many, will seize it. A number of countries have criminal defamation statutes, or other laws that make crimes of criticizing the government. If national authorities can successfully assert civil jurisdiction against an expert on mission, they may also see criminal prosecution as an effective means of curbing a potentially critical UN report.

Some nations, including the United States, have suggested that national courts should give great weight to the Secretary General’s determination, but need not treat it as conclusive. In some cases, the rule of “judicial deference” urged by the United States would undoubtedly suffice to protect an expert from legal process. However, where the national courts adjudicating the immunity question are themselves the object of a United Nations investigation, or subject to interference by the executive branch of a government that is violating human rights, such an approach is destined to fail. What might be expected from a court sitting in judgment on an expert whose work may, for example, inform a war crimes tribunal (as well as the international community of donors, trading partners, rival states, etc.) of the judicial system’s complicity in crimes against humanity?

Allowing states to determine the scope of UN experts’ immunity also risks making the international legal environment unmanageable. There would potentially exist as many standards of immunity as there are UN Member States. If the Secretary General lacks the authority to “regulate” this form of immunity, the United Nations and its experts will have precious little guidance as to the legal protections applicable to their activities around the globe.

However this case is ultimately resolved, it will have had powerful implications for Mr. Cumaraswamy and the UN human rights protection system.

The law suits against Mr. Cumaraswamy have taken an enormous toll on him, and have severely hampered his work as Special Rapporteur. He has been assessed US$60,000 in court costs; if he receives indemnification, it will not be paid until the end of the proceedings. Mr. Cumaraswamy has also felt compelled to resign from his law firm, which the Malaysian government named as “anti-government” after the filing of charges against him, fearing that it might lose business as a result of its connection to him. Even if he ultimately prevails, the Special Rapporteur will have been irreparably damaged by the Malaysian courts’ failure to suspend proceedings immediately upon receipt of the Secretary–General’s determination. His experience is proof that “immunity from legal process of any kind” must entail insulation from the litigation itself, not merely the judgment, in order to offer practical protection.