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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL TROTTERNAMA
Spanish 'superjudge' awaits prosecution for overreaching jurisdiction s

Judges are supposed to quietly do their work and keep a low profile, and those who tend to be more effective than others land in some kind of trouble, or so it seems.

The same seems to have happened to one of the most famous judges in the world, Baltasar Garzón, a Spanish judge who is well-known for ordering the arrest and extradition of former Chilean dictator Augusto Pinochet for crimes against humanity. The judge, who is regularly referred to in press as 'superjudge' has been charged with deliberately acting beyond his jurisdiction in initiating investigation into the crimes of another dictator, Spain's Francisco Franco. Garzon, on account of the charges leveled against him, has been placed under suspension, and is awaiting the beginning of his criminal trial.

It was in 2008 that Garzón accepted the request for a probe by the family members of some of those who had disappeared during the 1936-39 civil war. Garzon ordered an inquiry into the disappearance of around 114,000 people during the civil war. The probe was to include an investigation into the early years of the dictatorship that followed the civil war. Garzon considered the actions of Franco and his 34 officials as crimes against humanity and thus justified his order for the probe.

However, he ran into trouble because he will fully disregarded the amnesty law passed by Spanish Parliament in 1977, which provides amnesty to those who committed crimes during the dictatorship that followed the civil war in 1936-39. Therefore, in ordering the probe the 'superjudge' overlooked the law that is considered 'pact of silence', and which is also seen as instrumental in bringing about a transition from dictatorship to democracy.

Miguel Bernad, the Secretary General of Manos Limpias (Clean Hands), the Association that instituted the complaint against Garzón, said, "No judge can just jump over the laws of the country."

The action taken against Garzon amply demonstrates the unwillingness of the Spanish legal intelligentsia to open the wounds inflicted by the civil war. Garzon's lawyer is reported to have said the suspension and impending prosecution of Garzon has sent across a strong signal to the judges in Spain that "they should not investigate the Franco regime's crimes or question the law of amnesty." In case of conviction Garzón would not face a jail term but might be taken off the Bench for up to 20 years.

However, this doesn't mean Grazon has no support from anywhere. Carolyn Lamm, President of the American Bar Association, is reported to have written a public letter to Spain's Attorney General, who is himself an opponent of the prosecution, saying, "Numerous sources of international law suggest that amnesties for crimes against humanity are inconsistent with a State's obligations to protect human rights, including the right of access to justice."

It is relevant to note here that Grazon is regularly referred to as 'superjudge' in the media and is arguably one of the world's most prominent practitioners of universal jurisdiction. The legal principle of universal jurisdiction holds that crimes of unusual gravity are crimes against humanity and the authority to probe and then prosecute the guilty in connection with such crimes is not limited to the country where the crimes were committed.

 

Euthanasia begins in Montana

There has been at least one case of assisted suicide in Montana since the State Supreme Court ruled a year back that euthanasia was not illegal. However, no data pertaining to assisted suicides is available because the State has no means to know the number of cases in which euthanasia was resorted to and what was the procedure followed.

Montana became only the third State in the US to legalize physician-assisted suicide through a Supreme Court ruling. The State Supreme Court ruled on December 31 last year that nothing in the Montana law stood in the way of euthanasia.

The judgment saves the doctors from homicide charges if they prescribe lethal drugs to the mentally competent but terminally ill patients. However, although the Court did say that physician-assisted suicide was not expressly prohibited by law, it did not go on to examine whether or not the Montana Constitution guarantees such a right to the patients, which means that the authorities could still file charges against the doctors.

According to Advocacy Group Compassion & Choices, there has been at least one assisted suicide after the ruling. However, the organization did not reveal the exact number of patients who got suicide drugs in order to protect the privacy of the patient besides preventing the possibility of investigations.

Oregon and Washington are the other two States where euthanasia is not illegal, but in those two States the relevant laws clearly lay down the guidelines for doctors and also stipulate reporting procedures, whereas Montana authorities admit that they do not have the legal authority to regulate physician-assisted suicides.

 

New Zealand: Supreme Court judge faces 'bias' charges

A retired appellate judge of New Zealand has accused a Supreme Court judge of serious breach of judicial ethics. The Supreme Court judge in question is already facing charges of judicial misconduct and is being investigated for conflict of interest.

In view of the conflict of interest charges, the Supreme Court took the rare step of recalling a judgment after Justice Bill Wilson admitted to indirectly owing around a quarter of a million dollars to Alan Galbraith QC during the time Mr Galbraith made appearance before him in the Court of Appeal. Justice Wilson made the disclosure when he was being questioned by his fellow apex court judges.

To add to the miseries of Justice Wilson, a former Court of Appeal judge, Sir Edmund (Ted) Thomas, decided to break his silence in a rather formal manner. Sir Thomas sent forth to Judicial Conduct Commissioner an 18-page complaint regarding Justice Wilson's judicial misconduct, which he described as "serious breach of judicial ethics".

"Based on my 43 years' or so experience at the Bar and on the Bench, I believe that any other judge I have known would have stood down or made a complete disclosure," Sir Thomas added.

 

HRS

 
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