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'Draconian laws are no protection against terrorists'

By J. Venkatesan

NEW DELHI OCT. 29. Human rights and, in particular, the principles of due process of law appear to be under siege since the September 11, 2001 attacks in the United States, according to Dato' Param Cumaraswamy, former United Nations Special Rapporteur on Independence of Judges and Lawyers.

In an interview to The Hindu, he said: "my concern is that human rights, which became the cornerstone to re-structure the world after World War II, cannot be thrown overboard or sidelined to counter terrorism".

Also, past experience had shown that draconian legislations did not provide much safety to the state against terrorists or militants but were used only to protect the safety of the government in power.

Asked about the Prevention of Terrorism Act in India, he said: "my concern is that extensive powers given to the executive can always be abused without there being any independent judicial review. But in India, you have a strong and independent judiciary which can always put a check on the executive excesses".

Between 1985 and 1990, Mr. Cumaraswamy was subjected to considerable pressure, harassment and intimidation, including death threats, for his defence of human rights in Malaysia.

A founding member of the Malaysian Bar Council Human Rights Committee and Legal Aid Committee, he was elected president of Lawasia in 1993. Recently, he attracted the U.S. Government's wrath for his public statements on the military commissions and the denial of due process to detainees in Gautanamo Bay from Afghanistan and Iraq.

Mr. Cumaraswamy said most of the investigations by the U.N. Special Rapporteur were not welcomed by governments who saw them as intrusive.

"In my own country, Malaysia, I had to battle libel suits against the Government which claimed damages to the tune of $73 million before the Malaysian courts for over five years with regard to an interview I gave to a London-based periodical, the International Commercial Litigation, on improprieties in the Malaysian judiciary."

The issue became a dispute between the U.N. and Malaysia, which was finally resolved by an advisory opinion of the International Court of Justice against the Malaysian Government.

Asked about the role of the Special Rapporteur, he said the Rapporteur was mandated to advise and recommend measures to the country concerned on structuring the judicial system to dispense independent justice. "In my tenure spanning nine years, I had intervened with governments in more than 100 countries and carried out missions almost in every region to carry out investigations of specific complaints on attacks on independence of judges and lawyers."

He expressed gratitude to the Indian legal profession for coming to his rescue when he was charged with sedition by the Malaysian Government and later acquitted by the court.

Mr. Cumaraswamy was conferred the 2002 Justice in the World Award in June this year by the Justice in the World Foundation of the International Association of Judges for "his dedication and commitment to support and safeguard the independence and impartiality of the judiciary throughout the world".

On September 30, he was conferred the honorary membership to the Law Society of England and Wales. On October 7, he was called to the Bench of the Society of Middle Temple, one of the four Inns of Court in London as an honorary bencher. At a seminar organised by Lawasia (India-chapter) on Tuesday, he narrated his experiences as Special Rapporteur since 1993 when he had a face-off with many a government in both developed and developing countries.

Today, on behalf of the United Lawyers' Association, he gave a lecture on the "State of judicial independence since Vienna 1993". He expressed serious concern at allegations of judicial corruption.

"These, if proved, are gross and heinous judicial misbehaviour which should not be tolerated in any civil society. The corridors of courts must be kept clean and unpolluted so that what flows from the fountain of justice would remain pure."

Such allegations should be carefully and independently investigated before action is taken and the judicial officers concerned must be heard at all stages of the investigation process.

Referring to a self-regulation mechanism existing in many countries to deal with cases against judges, he said such self-regulation was no longer seen accountable and transparent and, hence, there was a need for a separate complaints mechanism.

The Chief Justice of India, V.N. Khare, presided over the meeting and the Attorney-General, Soli J. Sorabjee, gave his introductory remarks about Mr. Cumaraswamy.

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