Once over Phillippe Sands lightly


On 6 July a Chilean court stripped Augusto Pinochet of immunity from prosecution for his alleged involvement in a 1975 raid, carried out by his secret police, which led to the disappearance of about a hundred political activists. Pinochet’s legal team is expected to appeal the decision.

So far the former dictator’s lawyers have been successful in delaying the need for him to answer any charges that actually relate to the gross crimes that were allegedly committed by his regime during his long (1973-90) reign as president of Chile.

Yet when British QC, Philippe Sands, was interviewed on the ABC last month, he was unchallenged when he suggested that an earlier, 1998 House of Lords’ ruling against Pinochet had set a precedent that has robbed all retired politicians of the immunity from prosecution they once enjoyed for crimes committed by their governments when they were in power.

Augusto Pinochet

Augusto Pinochet

On both ABC’s Lateline and Late Night Live, Sands made much of the fact that Lord Leonard Hoffmann had cast the deciding vote in that 1998 House of Lords’ three-to-two decision to dismiss Pinochet’s claim of a retired leader’s immunity from prosecution and, consequently, his appeal against his extradition from Britain to Spain to face charges that he sanctioned the murder, torture and kidnap of expatriate Spaniards in Chile.

It was at that point, surely, that both Lateline’s Tony Jones and Late Night Live’s Phillip Adams might have interrupted Sands to remind him – and their audiences – that Pinochet was not, in fact, extradited to Spain and that the 1998 House of Lords’ rulings against him had to be set aside – and in the most dramatic circumstances. This was because Pinochet’s lawyers discovered, apparently belatedly, that the deciding judge, Lord Hoffmann, was a director of Amnesty, which had campaigned for the general’s extradition. Pinochet’s legal team also noted that Lord Hoffmann’s wife was an Amnesty administrative officer.

It has never been revealed if Lord Hoffmann had advised his fellow law lords of his own and his wife’s association with a party to the proceedings before that 1998 Pinochet appeal began. In any event, for the first time in legal history, a decision by Britain’s ultimate court of appeal, the House of Lords, was overturned because of the perceived interest of one of the judges.

A new appeal was ordered. It was presided over by a new set of law lords in 1999. Although they upheld the decision of the earlier hearing, they also ruled that as a result of an international treaty that Britain had ratified in December 1988, the UK could only hold Pinochet responsible for actions taken by his government during the months that elapsed between the ratification of that 1988 agreement and his retirement as president of Chile in 1990.

When the matter was then referred to the British foreign secretary, Jack Straw, he dismissed it on the grounds that Pinochet, who had been arraigned while visiting the UK for medical treatment, was in failing health. The upshot was that the general, who had spent the better part of his two-year detention in the UK convalescent in the luxurious comfort of a rented countryside mansion, was free to leave for home – and to the cheers of British Conservatives, including his best-known British supporter, former prime minister, Margaret Thatcher. Pinochet’s lawyers subsequently successfully sued Britain for his UK court costs, amounting to about $A2.5 million. The ultimate expense to the British taxpayer was estimated as in excess of $A30 million, including the cost of ensuring Pinochet’s security in the UK.

There was no mention of this debacle when Professor Sands was interviewed on Lateline and Late Night Live. Instead, he was encouraged to put forward the notion that because of the allegedly vital deciding vote of Lord Hoffmann in the (ultimately set aside) 1998 House of Lords’ decision against Pinochet, Australian prime minister, John Howard, will have to be careful about where he travels abroad in retirement, since he is among those widely considered to have waged an illegal war in Iraq.

Sands, who is visiting professor of law at University College London, also noted that Henry (Vietnam) Kissinger and Margaret (sinking of the Belgrado) Thatcher are among the already retired politicians who have to be cautious about where they travel in case they are called to account for decisions they sanctioned when in power last century.

Come on!

Professor Sands might have been asked about the possible ramifications of the arrest of such high profile former leaders from rich, influential countries. After all, following Pinochet’s detainment in the UK, the then Chilean government, withdrew its ambassador and threatened to cancel extremely lucrative defence and other contracts with the UK or any other government which sought to extradite or arraign its ex-president on human rights charges.

The ABC’s Tony Jones and Phillip Adams might have at least checked Professor Sands’ flow just long enough to make the point that even if the chickens do come home to roost, they are likely to be pretty spent old birds. Pinochet is now nearly ninety, and the prosecution lawyers have yet to really to lay a glove on him, either in respect of his alleged complicity in vile human rights abuses or even his financial dealings. Okay. So his immunity from prosecution has been threatened again in Chile – but again only pending an appeal – and, possibly, yet another of his lawyers’ claims for a delay in proceedings on account of his allegedly and by now all too likely failing health.

But to get back to British law lord, Lord Leonard Hoffmann, who was portrayed as a judicial hero by Professor Sands on the ABC. Did Tony Jones, Phillip Adams or their researchers bother to check Hoffmann out on the net? It seems not. Otherwise, they would surely have interrupted Sands to remind him that the Guardian’s legal correspondents and other British journalists have called for Hoffmann’s resignation, initially because of his role in the aborted, 1998 House of Lords’ decision against Pinochet, but also because of subsequent Hoffmann rulings.

Had Jones and Adams or their researchers checked Lord Hoffmann out on the net, they might have discovered his involvement in a recent (26 May) House of Lords’ decision that is estimated to have cost Australia about $600 million a year. A sum that is expected to rise with inflation. It would have been interesting to hear what Professor Sands, had to say about that when he was given the floor on the ABC in June.

Briefly, that 26 May House of Lords ruling brought to a close the long battle waged through the British courts by expatriate British pensioners for the rescindment of the UK’s frozen pensions policy. This policy penalises Britons who retire to most Commonwealth and former Commonwealth countries. Their UK pensions are never subsequently uprated in line with cost-of living increases. This is despite the fact that they contributed to the UK’s mandatory National Insurance pension scheme during their working lives.

Currently about 500,000 UK expats are affected by the policy, the majority of whom (237,000) are living in retirement in Australia. Many of these elderly Britons, include decorated WWII veterans, who have not had their British pensions increased since they left the UK twenty years ago, when the basic weekly British pension was about £38. It is now £82.

Australia’s Minister for Family and Community Services, Senator Kay Patterson, has confirmed that 169,000 of the Australia-based expats are now receiving a partial, means-tested Australian pension because they cannot survive on British pensions that have not been uprated since
their arrival here (many to join adult emigrant children). She has confirmed that the cost to the Australian taxpayer of providing this assistance is presently in excess of about $108 million a year. She has condemned Britain’s frozen pensions policy as ‘blatantly discriminatory’ since it does not penalise Britons who retire to European Union countries and most other non-Commonwealth nations.

Over the decades the policy, which dates back to Britain’s immediate post-WW II currency crisis, has also seriously reduced the amount of cash flowing into Australia from the UK. Senator Patterson reports that Britain currently remits $853.8 million each year by way of pension payments to its expats here. But according to the president of the British Australian Pensioners Association, Brian Havard, that sum would presently be increased by about $500 million if those pensioners were granted indexation parity. ‘Many now receive less than 50 percent of the current UK pension,’ he explains. ‘The direct cost to Australia, including the provision of partial Australian pensions, is at least $600 million annually – and Australia is saving Britain the cost of health care for 237,000 elderly expats.’

The astonishing saga of Britain’s on-going refusal to grant equal aged pension rights to Commonwealth-based expats, who have included Battle of Britain, Normandy Landing and relief of Belsen veterans, cries out for a separate story.

The point of this piece, however, is to wonder if the continuation of the allegedly long gone colonial cringe, at least in respect of visiting academics, or the lack of researchers at the cash-strapped ABC enabled visiting professor Philippe Sands to portray unchallenged, Lord Leonard Hoffmann, as a judicial hero on our national broadcaster?

* Professor Sands was in Australian in June on a speaking tour and to promote his latest book, Lawless World.

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