Anti-Pinochet campaigners fear yesterday's House of Lords decision to set aside its earlier ruling, and reconsider the question of Gen Augusto Pinochet's claimed immunity, could see the former dictator return to Chile and escape prosecution in the Spanish courts.
In an unprecedented move, five senior Law Lords allowed the petition brought by Gen Pino chet's lawyers, and unanimously agreed to rescind the earlier decision denying him immunity from arrest and extradition.
The Law Lords gave their landmark interim judgment after two days of legal argument about the association of Lord Hoffman - one of the lords who made the original decision on November 25th by a three to two majority - with the human rights group Amnesty International, and whether this gave rise to "a real danger of bias". Lord Hoffmann, a South African-born liberal, is a longtime director and chairman of Amnesty's charity arm - Amnesty International Charity Ltd - and his wife also works for the organisation.
Under pressure of time, the Law Lords yesterday deferred their detailed findings until the New Year and confined themselves to giving their basic decision.
Lord Browne-Wilkinson said: "I am satisfied that the earlier decision of this House cannot stand and must be set aside. It is impossible in the time available to prepare and give full reasons for that view - on the other hand it is essential that the parties should know where they stand as soon as possible."
Lord Hoffmann was abroad and unavailable for comment about a highly embarrassing decision by his fellow Law Lords, which will prove the more so if, as seems likely, the full ruling in January contains significant criticism of his failure to disclose his Amnesty connection ahead of the original six-day hearing.
But the political and constitutional implications were immediately clear as the Lord Chancellor, Lord Irvine, wrote to Lord Browne-Wilkinson demanding new measures to prevent a repetition of the events leading to yesterday's dramatic decision.
In his letter, Lord Irvine said: "We must make every effort to ensure that such a state of affairs could not occur again. My request to you, therefore, as the senior Law Lord, is that you, or the Law Lord in the chair, ensure at the time when any Committee is being composed to hear an appeal, that its proposed members consider together whether any of their number might appear to be subject to a conflict of interest; and in order to ensure the impartiality, and the appearance of impartiality, of the Committee, require any Law Lord to disclose any such circumstances to the parties, and not sit if any party objects and the Committee so determines."
During the two-day hearing on the Pinochet petition, his lawyer, Ms Clare Montgomery QC, argued that Lord Hoffmann had been under an obligation to declare his links with Amnesty so that the general's representatives could decide if they wished to object to him hearing the case.
"What judges must not do, once they have accepted a post with a charity, is to hear a case touching on the very subject matter that charity has sworn to abolish," she said. It was important that a judge be seen to be unbiased: "He should be uninfluenced by passion or factions. He should not be seen to be in passionate opposition to a defendant."
And she continued: "When you consider how it appears, there are reasons to fear that Lord Hoffmann, as a director of a company sworn to secure the end of torture and extra-judicial disappearances, would be predisposed to find that no state immunity would attach to such acts."
Mr Alun Jones QC, for the government of Spain, had asked the panel to consider what would have happened had Lord Hoffmann declared his Amnesty connection.
"If there had been an objection, what they would really have been objecting to was not his association with the charity, but the view he is perceived to take on questions of human rights," he said. "Once that objection starts being entertained, lawyers on the other side might start taking exception to Lords X or Y. It's a potentially anarchic situation," Mr Jones said.
The chairman of Amnesty International, Mr Andy McEntee, said: "We are disappointed in terms of the time and effort expended and of having to go back and do it all over again. . . Augusto Pinochet has very inventive lawyers. They are very good, very effective. They will make this a long case, one that is very hard for him to lose."
At Gen Pinochet's appearance before Bow Street Magistrates sitting at Woolwich last Friday, it was indicated that any fresh hearing by a reconstituted panel of the Law Lords would be unlikely to commence before January 12th.
The new hearing may take longer than the original six days, since Amnesty, the Chilean government, and other European governments which have expressed an interest in seeking the general's extradition, will be able to make representations. A decision by the Lords that Gen Pinochet does in fact enjoy sovereign immunity would remove the basis for the decision by the Home Secretary, Mr Jack Straw, last week that the Spanish extradition request should proceed.
Agencies add: Supporters of Gen Pinochet welcomed yesterday's decision, but his opponents, while disappointed, do not see this ruling as a defeat, more as a setback. "I think Pinochet will be very happy. He has great faith in Britain's legal system and justice," Mr Fernando Barros, a Pinochet supporter who is also a lawyer, said in London yesterday.
"Obviously I am not happy about the decision but this does not mean all is lost," said Mr Vincente Alegria of the National Organisation of Chileans in Exile. It was important that the legal process be fair, with no appearance of bias, he said.
The Lords decision was welcomed in Madrid yesterday by the president of the Chilean senate. Speaking at a news conference with the Spanish Prime Minister, Mr Jose Maria Aznar, Mr Andres Zaldivar said the decision "could constitute a way out of the problem". Mr Aznar affirmed his "absolute respect" for judicial rulings.
Judge Baltasar Garzon, the Spanish judge seeking Gen Pinochet's extradition, remained confident that the latest decision would not derail his two-year-old investigation of Latin America's "dirty wars", court sources said.
--(AFP/Reuters)