Continued from last MondayPerhaps the most recent and notorious of casesregarding the subject of sovereign immunity is to be found in the trials of Augusto Pinochet. I have relied extensively on Brian P. Blocks and John Hostettler's book titled 'Famous Cases, Nine Trials that changed the law' publisned in 2002 by waterside Press for mv information and material.PINOCHET; THE BACKGROUND Augusto Jose Ramon Pinochet Ugarte (hereinafter referred to as 'Pinochet') was a General in the Chilean army. He was born on the 25th of November, 1915 and died on 10th December 2006 at the age of 91 years. On 11 September 1973 there was a military coup and Pinochet assumed power and on the same day was appointed president of the ruling junta. The coup d'etat saw to the end of president Salvador Allende's democratically elected socialist government in Chile. Eleven days later the new regime was recognised by the British government and a year later, on 11 December 1974, General Pinochet assumed the title 'President of tile Republic.'In December 1985, General Ibrahim Badamosi Babangida overthrew the two year old regime of General Muhammadu Buhari and for the first time in Nigeria, Babangida did not use the title Head of State but styled and called himself 'President.'In 1980 there was a national referendum in Chile which approved a new constitution providing for executive power to be exercised by the President of the Republic as head of state. The Pinochet administration implemented harsh and stringent measures against persons considered to be political opponents. Our own country, Nigeria has also witnessed several harsh military interventions with the General Sanni Abacha regime being the most draconian. Allegations of mass killings of about 3,000 people, detention and torture of about 100,000 people including women and children were rife during Pinochet's regime. The same regime introduced various economic reforms which have been described as the miracle of Chile. The reforms made Chile till today the best performing economy in Latin- America. Pinochet held that office until 1990 when, after a democratic general election, handed over power to the new President on 11 March 1990. He was then appointed Senator for life, an appointment which afforded him immunity for life in his native Chile.When Pinochet came to Britain on a special diplomatic mission in 1994, and again in 1995 and 1997, he was afforded full diplomatic courtesies. In september 1998, at the age of 82 he returned to Britain and with the full knowledge of the British Foreign Office he underwent an operation at a London Clinic.Just before midnight on 16 October, 1998 and while still at the London Clinic, he was arrested pursuant to a provisional warrant (the first) issued under Section 8(1)(b) of the Extradition Act 1989 by a Metropolitan Stipendiary Magistrate, Mr Nicholas Evans. On October 17, 1998 the Chilean government protested and claimed immunity on behalf of Pinochet as a visiting diplomat and former Head of State.It was discovered that the provisional warrant, which was based on a claim of the Spanish government that Spanish citizens were murdered in Chile was deemed to be bad since murder was not an extradition crime in Britain at that time.This flaw became apparent to the British Crown Prosecution Service who was acting on behalf of the spanish government, and a second international warrant of arrest, which relied on events between 1973 and 1979 in Chile, was issued by a spanish court alleging crimes of terrorism, the infliction of severe pain and of genocide, which are extraditable offences. This resulted in a second provisional warrant of arrest issued by another Metropolitan Stipendiary Magistrate, Mr Ronald Bartle, and on this warrant, Pinochet was re-arrested on October 23, 1998.The second provisional warrant was good because whereas the murder of a British citizen abroad is not an offence under English law, torture is, irrespective of where and on whom the torture was committed; see Section 134 (1) Criminal Justice Act 1988 of the United Kingdom, which makes torture a universal crime. The warrant was also premised upon acts of hostage taking within Section 1 of the Taking of Hostages Act 1982.THE QUEEN'S BENCH DIVISION OF THE HIGH COURT The Divisional Court heard Pinochet's challenge to the warrant on the 26th and 27th of October 1998. Pinochet claimed that he was entitled to irnmunity under customary international law and the provisions of Section 20 (1) Part II State immunity Act 1978, read with Section 2 of Articles 29, 31 and 39 of Schedule I to the Diplomatic Privileges' Act 194.The court was. presided over by the Lord Chief Justice of England, Lord Justice Bingham and both Mr Justice Collins and Justice Richards sat with him. They took extensive arguments from Pinochets lawyers and lawyers to the Crown Prosecution Service. The Court unanimously held that Pinochet was entitled as a former Sovereign to immunity from the criminal and civil process of the English Courts and the warrants of arrests were quashed. The Crown appealed to the House of Lords (now known as the Supreme Court).THE FIRST APPEAL The first appeal was heard between 4th November, 1998 and 25th November, 1998 when judgment was delivered by the House of Lords, a period of just 21 days. Five law Lords sat on the appeal. They were Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffman.There were three grounds of appeal; 1. That state immunity under Section 1 state Immunity Act 1978 which provides immunity to a foreign state from the jurisdiction of United Kingdom courts also extends it to a head of state in his public capacity; 2. That personal immunity for a head of state under Section 20 of the 1978 Act which provides immunity to a head of state or forrner head of state in the exercise of his functions as head of state; 3. That the common law 'act of state' doctrine protects the appellant.In view of the importance of the case, the court invited arguments from persons who were not parties to the court as Amicus Curiae. This practice is also not uncommon in Nigeria. Amicus Curiae is a Latin term which means 'friend of the court.' It is also the name given to a brief filed with the Court with leave of the court by someone who is not a party to a case. It may be that the person is of the opinion that the decision may affect its interest, or that Counsel who in the opinion of the Court may provide valuable legal argument on certain issues arising from a case be invited to participate in the proceedings.The Organisations invited by the House of Lords included; The Medical Foundation for the Care of Victims of Torture, The Redress Trust, Human Rights watch, The Association of the relations of the Disappeared Detainees and Amnesty International.The House of Lords allowed the appeal and overturned the decision of the Court of appeal by a majority of 3 to 2, Lord slvnn of Hadley and Lord Slynn of Berwick dissenting.The Court held that immunity for a Head of state or former Head of state applied only to acts performed whilst he was functioning as Head of state. Torture and the taking of hostages could not be regarded as functions of a Head of state.It was further held that it was a principle of international law that acts of torture and hostage taking were unacceptable even when done by a Head of state or former Head of state and that since the offence with which Pinochet was charged were offences under the U.K, statute law, Pinochet had no immunity from the criminal process including extradition.A TWIST IN THE TALEFollowing the decision, Pinochet was required to remain in England whilst the Home secretary decided whether to continue proceedings for his extradition to Spain to face criminal prosecution under section 7 (1) of the Extradition Act 1989. On the same day of the judgment a television program (News Night) in the U.K. carried an allegation made by a speaker in Chile that Lord Hoffman, one of tile Judges that decided Pinochet's case in the House of Lords was likely to have been biased against Pinochet.Specifically, the allegation was that Lord Hoffman and his wife were strongly connected to Amnesty International, an organization invited by the court to address it as amicus curiae. On December 10, 1998, Pinochet's lawyers lodged a petition asktno that the order of 25th November, 1998, be set aside and the opinion of Lord Hoffman be declared as to be of no effect. THE PETITION A new panel of the House of Lords was constituted. It had none of the Judges that took the decision of the 25th November, 1998. It was now heard by Lord Browne Wilkinson, Lord Goff of cnlevetv, Lord Nolan, Lord Hope of Craighead and Lord Hutton. Oral judgment was given an 17th December, 1998 while reasons given on 17th January 1999. The Court set aside the order made on the 25th of November, 1998 and directed a re-hearing before a fresh panel. The Court heard very detailed submissions by lawyers on both sides and considered its past decisions in R V. Gough (1993) AC 646 and Webb v The Queen (1994) 181 Crim LR 41.In Nigeria, our Supreme court also has powers to set aside its own judgment. It is worthy of note that the exercise of its powers to reverse itself is rarely invoked by the Supreme Court in Nigeria. It is usually an uphill task to convince the Court to consider such reversal. The general principle of law is that a judgment, order or decision of a court is presumed to be correct unless and until that presumption is rebutted and the judgment is set aside. it subsists and must be obeyed. See the case of Babatunde v Olatunji (2000) 2 SC 9.Even though it may be a tough task the Supreme Court has always stated its preparedness to reverse its own decision in appropriate cases. See the case of Samauel Oke v Lamidi Aiyedun (1986) 4 SC 81, Ukpe Orewere & Ors v . Rev. Moses Aberigbe & ors (1973) 1 AN LR pt 14 pg 1, Attorney General of Federation v. Guardian Newspapers 1999 5 S.C (Pt III) 59.The ratlonale behind this power was graphically and elegantly stated by oputa JSC in Adegoke Motors Ltd v Dr Adesanya & Anor (1989) 5 SC 113/ (1989) 3 NWLR (pt 109) 250 @ 274. The learned jurist said inter alia 'We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short -sighted arrogance not to accept this obvious truth. It is also true that this court can do incalculable harm through its mistakes. when therefore it appears to learned counsel that any decision of this court has been given per in curiam, such decision shall be overruled. This court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.'THE SECOND APPEAL The second House of Lords appeal on the Extradition of Pinochet from the United Kingdom to Spain began almost immediately after the first appeal decision was set aside. A new panel was set up to now include Lords Browne Wilkinson, Goff of cnrevetv, Hope of cralqneao, Hutton, Saville of Newdigate, Millet and Phillips of Worth Matravers, a full panel of law lords.
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