Rather His Own Man

by Geoffrey Robertson

  The advocate’s art in these circumstances is to concentrate on the best point and to answer questions as quickly and crisply as possible. We succeeded, up to a point: the death sentence was vacated, but not the double murder conviction. Kris would spend the rest of his life in jail. He was stoic when I saw him later, in one of those orange boiler suits now familiar from Guantanamo Bay, determined to fight on to prove his innocence. Notwithstanding the strength of the prosecution evidence, I really could not believe he had gunned down the victims. And fifteen years later a brilliant death row lawyer, Clive Stafford Smith, proved that he hadn’t: Clive collected compelling evidence that the assassination had been ordered by the Medellin drug cartel boss Pablo Escobar, and carried out by one of his hitmen. The victims were drug couriers who had sold his cocaine but refused to hand over the proceeds. In April 2017, a federal judge ordered a full rehearing of the case, which we hope will be the cue for Kris’s release after thirty years of wrongful imprisonment – the first ten of them on death row.

  But you cannot count on ending capital punishment in the US, where those who are most pro-life when it comes to depriving women of their right to an elective abortion are most pro-death when it comes to killing convicts. In 1976 I briefly joined the defence team for the boxer Rubin ‘Hurricane’ Carter, who had already spent nine years on death row, having been convicted in 1966 for a triple murder which it was, by the time of his retrial, fairly clear he had not committed. Bob Dylan’s song ‘Hurricane’ tells it like it was – the story of the man who could have been middleweight champion of the world, had it not been for perjury and race hate. Norman Jewison’s movie, starring Denzel Washington, was pretty accurate as well.

  The case took me to the mean streets of Paterson, New Jersey, where I encountered vicious looks from white passers-by because I was with ‘the Hurricane’ while he was briefly out on bail. It was obvious he would be re-convicted by a local jury; Rubin himself knew he had no chance, even though – in fact, because – he had become a national celebrity. ‘See how they hate me? They’re gonna convict me.’ With sadness, I had to agree. Eventually, in November 1985, he was released, and set up an organisation that uncovered more than seventy wrongful convictions of men on death rows in the US.

  It was the Privy Council which finally decided my most dramatic and difficult death penalty case, defending 114 Islamic militants who had attempted a coup in Trinidad in 1990. The government had been trying to close their mosque, but that did not excuse their response – an armed overthrow of the government. Led by their imam, Yasin Abu Bakr (whose later visit to England prompted my surveillance in the hotel near Heathrow), these members of the Jamaat al Muslimeen took control of the country’s only television station, from which Abu Bakr made some incoherent broadcasts while his followers, armed to the teeth, took over the Parliament building (the ‘Red House’) with the prime minister, cabinet and a number of MPs (including two opposition MPs) still inside it. They killed eight policemen and caused millions of dollars’ worth of damage in the process. There followed the kind of scenario that can normally only occur in a Hypothetical: the prime minister and his entire government held hostage in Parliament, and the head of state – the acting president – safe under the protection of the army, some distance away.

  What happened then was later subjected to minute analysis in the courts. The president was at his crisis centre with the army chiefs, who advised that they could not storm Parliament to release the hostages because many would be killed in the cross-fire by the time the soldiers managed to overcome the terrorists. The Muslimeen could possibly be starved out, but that had problems, notably for the prime minister, who was a sick man and without his medicines.

  Then arose what seemed to be a brilliant idea. I described it in court as having come from a ‘bush lawyer’, for which rude Australian phrase I had to apologise when it transpired that it had come from the next chief justice. It was this: the president had the constitutional power to pardon, so why not offer the insurgents an apparent way out? They would be offered a presidential pardon if they released the hostages and surrendered. The seeming brilliance of the idea was that the pardon, the president was assured, would actually be legally invalid because it would have been granted under duress. It seemed the perfect trick: after the pardon had induced their surrender, the terrorists would all be prosecuted for treason, and hanged.

  What was wrong about this advice was that the president himself was under no duress at all – he was safe in the arms of the army. No one was holding a gun at his head – the guns were being held at the head of the prime minister and cabinet some distance away in Parliament. A pardon granted by the president, by his own deliberate act, would in these circumstances be valid. However, having been assured by his lawyers that it would not be worth the paper on which it was written, the president wrote it. The only problem now was how to bait the trap by getting the document to the rebels. All telephone communication with the Red House had been cut, it was before the era of emails and mobiles, there was no Trojan horse, and carrier pigeons were unavailable.

  The solution took the form of an Anglican priest – and priests really are useful in this kind of situation. He was a man of some courage, and was known to the Muslimeen through ecumenical connections. Under a white flag he ventured into the Red House to deliver the document. The insurgents were tempted, but were concerned that they’d had no legal advice, until they realised the attorney-general himself was their captive. He consulted the constitution and showed them the section vesting the power of amnesty in the president – this pardon document, he was happy to advise them, was valid and would save everyone’s life. One of the hostages – an opposition MP – asked to see it and then did something that would save 114 lives – he photocopied it, and kept the photocopy.

  Meanwhile the terrorists sent the priest back and forth for three days to seek more conditions and assurances concerning the Muslimeen mosque (as an indication of good faith, they had allowed the ailing prime minister to leave), until everyone was apparently satisfied. Then the hostages were released and the 114 hostage-takers came out smiling, handed over their weapons to the police and took their seats in the army buses that were to deliver them to their mosque. Instead, it took them to the Royal Gaol, where their belongings were confiscated and they were charged with treason, a hanging offence.

  ‘What about our pardon?’ they asked.

  ‘What pardon?’ was the response. The original document had been taken from their leader and was never seen again. There was no pardon, the government assured the court, which denied the men bail. Even had there been a pardon, the government lawyer added, it would have been invalid for duress.

  The government had to come clean once the photocopy was produced, but it was determined to hang the Muslimeen nonetheless and an English QC was hired to tighten the noose. I had been retained to save the necks of the 114 Muslim insurgents; indeed, to have them set free on the strength of the pardon, so I made an application for habeas corpus. The government claimed that I could not derail its treason trial with this tactic, and we fought it all the way to the Privy Council. There, we examined every pardon ever proffered, most notably those given by President Lincoln to Confederate forces after the civil war. To dishonour them, he had said, would be ‘a cruel and astounding breach of faith’. The Privy Council agreed that a habeas corpus application before the trial was the correct way to test whether the Muslimeen’s detention was lawful, i.e. whether the pardon was valid. So back to Trinidad we went, having won this first skirmish, to test it.4

  The case was heard in a large hall with a vast dock specially built to house my 114 clients, below a gallery which accommodated several hundred of their relatives. They were understandably anxious and on the first day pandemonium broke out – I found myself standing on the Bar table, my back to the softly spoken judge, making a loud speech beseeching everyone to keep quiet and have faith in justice. The judge possessed that wonderful quality of independence, not always found i
n the Caribbean judiciary, and he ruled that the pardon was valid.

  Before my clients could be released, the government appealed, but lost 2–1 in the Court of Appeal, whereupon it immediately appealed again to the Privy Council. The Court of Appeal had not only granted habeas corpus but had awarded substantial damages to my clients for wrongful detention – by now they had been in prison for two years. Understandably this had incensed the public: why should their taxes compensate terrorists whose rampage had cost millions to repair and who had killed eight policemen in cold blood? It was obviously an unjust result, although it logically followed from the validity of the pardon that they should not have been put in prison and therefore should be compensated for the loss of two years of freedom.

  All eyes turned to the Privy Council: we argued the case for many weeks over the summer of 1991 and awaited the judgment. The Law Lords ruled that the pardon had been valid when granted – it had not been vitiated by duress. If the Muslimeen had surrendered their hostages when it was first delivered, it would have entitled them to liberty. But they kept negotiating for better terms over the following three days, and that invalidated the offer – the pardon, the Law Lords decided, carried an implicit condition that it should be accepted forthwith. By this clever, if curious, reasoning, the court concluded that the pardon had become invalid by the time they were arrested, so they could not get damages for wrongful imprisonment. But this did not mean they must hang: by offering the pardon in the first place, the government had given them a ‘legitimate expectation’ to believe that they would not be put on trial for their crimes, and it would be an abuse of process for the prosecution to continue to their conviction and execution. This was truly a Solomonic solution – neither strictly legal nor strictly logical – but as fair as possible in the circumstances.5 It spared the insurgents their lives, but they would not receive a dollar in damages. The public were overjoyed, and as a result of the case Trinidadians still demonstrate in favour of keeping the Privy Council whenever any patriotic local politician suggests that this colonial relic should be abolished.

  Why, my wife frequently asked, did I devote so much time and energy to saving the lives of worthless murderers? It was a fair question, given the absence from family and from remuneration that my death penalty practice entailed, not to mention that most of my clients were probably guilty. I met a few who were not – Kris Maharaj, for example, but even Michael X, in the murky circumstances of the killings in Trinidad, probably deserved a lengthy sentence for manslaughter. The Trinidad Muslimeen had behaved like terrorists and most of the men I defended, or who benefited from the success of my argument in the Pratt & Morgan case, were serious criminals. So why spend months – years, in fact – cudgelling my brains to find ways to outwit states that wanted to string them up? I have no religious or philosophical belief in the sanctity of life – there are clear cases when taking it is in the public interest. Intellectually, of course, I believe the arguments against capital punishment, but Kathy’s point was why not leave them, sometimes, for others to make? That was not an option when I made my promise to Michael X or when I accepted instructions to try to save the lives of the Muslimeen. But why summon up passion – and I was and still am passionate – to stop the execution of murderers and drug traffickers? I guess because I believe quite simply that law is there to protect life, not to take it, for the reason given by the prison reformer John Bright as long ago as 1850 when the gallows in England were in full swing: ‘If you wish to teach the people to reverence human life, you must first show that you reverence it yourself.’

  The Privy Council was permitted by Lee Kuan Yew to review judgments for many years in Singapore – he found it helpful in reassuring English investors – until it condemned the injustice he and his loyal (to him) judges had visited upon his opponent, the Workers’ Party leader, Joshua Benjamin Jeyaretnam. Ben was the most congenial of politicians, with his mutton-chop whiskers and belief in democracy, and his party only ever won one seat – his own – in the national Parliament. But that was enough for Lee, a malicious man, to humiliate and destroy him. Heavy libel damages were awarded against Ben for mild criticisms of Prime Minister Lee and the compliant judges humiliated Ben further by removing him from membership of the legal profession. The Privy Council condemned them, and for that reason Lee decided to abolish any further appeals.

  It was a strange experience to cross swords with Lee in court. During libel actions he would bring against my American newspaper clients for any mild criticism of his governance, Singaporeans would queue every morning for seats in the gallery to hear my cross-examination because it was the only place they could safely laugh at their authoritarian prime minister. In one case the judge announced that he was awarding additional damages because my questions had ‘hurt Mr Lee’s feelings’. The Malaysian Bar Council put out a press statement: ‘This is the first evidence that Mr Lee has any feelings.’

  In Singapore I came across people of great principle, people it was a joy to defend. They comprised the young Catholic social workers who had been inspired by liberation theology and had begun to be critical of the government. For this they were detained in prison for several years, where they were subjected to the secret police speciality – the torture that leaves no marks because it takes the form of being required to sit naked and suffer sub-zero blasts from souped-up air conditioners. There were two women playwrights as well, equally admirable, accused of writing plays that ‘exaggerated the problems of the poor’. And I won a great victory – the first victory ever, and the last, against Lee Kuan Yew’s government in court, where judges were instinctively biased in his favour. The Court of Appeal simply had to grant habeas corpus, because the detention orders had not been signed by the minister of National Security, as the law explicitly required, but by his head of department. On such legal technicalities does liberty often hang.6

  There was great excitement the morning the judgment was handed down. The relatives of the prisoners were overjoyed: they could not believe we had won, and rushed from court straight out to the gates of the prison and waited outside for their children to be released. The detainees were given suitcases in which to pack their clothes and told to take the pictures down from the walls of their cells. They were ushered onto a bus. The bus drove through the gates towards their relatives, who were laughing and cheering, onto the main road, then turned and drove back through the gates to the prison. There they were presented with fresh detention warrants – signed by the minister. In Lee Kuan Yew’s Singapore, you always lost. Even when you won, you lost. And just to make sure you never won again, Lee passed a law – the Internal Security (Amendment) Act – which provided that ‘there should be no judicial review in any court of any act done or decision made by a minister’. Goodbye, habeas corpus; goodbye Privy Council.

  Hong Kong, too, suffered from the loss of the Privy Council when it reverted to China. Before then, I had appeared in cases where the Privy required its courts to accept persecuted Chinese fleeing from Vietnam as refugees. But its successor – the ‘Court of Final Appeal’ – had its judgments subjected to the approval of the Chinese government. It was a good enough court, with a Commonwealth member (for a time it was Sir Anthony Mason, the former Australian chief justice), and when the next refugee case came up, the Court of Final Appeal again decided they could stay. No, they could not, said the Communist Party in Beijing, and negated the decision. I tried again, arguing that the first decision had created a ‘legitimate expectation’ that the refugees could stay. ‘Otherwise,’ I said, looking straight at Sir Anthony, ‘you are not the Court of Final Appeal, you are the Court of Penultimate Appeal.’ He winced, but had to turn us down. It was a hard case, made harder by the refugees themselves, who turned up at the court door every morning to present their advocate with bundles of flowers. The case did arouse a lot of anger, however, so much so that the local police did not have the heart to arrest settled families. Beijing has not used its constitutional blackball again, although there are signs
that the newly confident Xi Jinping regime may do so.

  In some Commonwealth countries in Africa, subverting democracy was done more openly once ‘Big Men’ emerged. Independence leaders like Jomo Kenyatta in Kenya wanted themselves and their party to lead forever, just like Lee Kuan Yew. They abolished the Privy Council from the start and imported some Marxist lawyers to rewrite their constitutions and turn their countries into one-party states. You could vote in elections, certainly, but only for candidates presented by the official party led by the Big Man. I was happy to play a part in trying to dismantle these anti-democratic constitutions, which ensconced one party (in Kenya, one tribe) and led to massive corruption. My friend Paul Muite, when head of the Law Society of Kenya, publicly asserted that the constitution could be interpreted as permitting the formation of opposition political parties as long as they did not put candidates up for election. The government prosecuted him for sedition for uttering this opinion, and Paul asked me to defend him. I was about to leave for Nairobi when the news came through that I had been banned from entering the country. It is strange – for all the inconveniences I have caused to governments in authoritarian states, in apartheid South Africa and in various mini-dictatorships, Kenya is the only nation formally to forbid my presence.

  The Big Man I encountered face to face was Dr Hastings Banda, ‘President for Life’ of Malawi. He was in fact small, with a leathery visage that made him look like the movie alien E.T. He was an independence leader in the 1960s – I have friends who remember, and regret, protesting on his behalf when he was detained by the British colonial authorities. After independence he quickly dispensed with democracy, and with the Privy Council, and used the emergency law under which he had been detained to imprison anyone who criticised him. Television was banned, and he controlled the only radio station and newspaper in this one-man, one-party state of nine million people, rated by the World Bank as one of the poorest countries in the world, despite its agricultural wealth. That was being exploited by the amoral corporation Lonrho, which shared its tax-free profits with the President for Life.