Accountability of Political Leaders joly

Eva Joly, 10th IACC, Speech, Governance

 

Eva Joly:

Mr. Prime Minister, Ministers, ladies and gentlemen. I think that before starting to talk about the extent to which a country's judicial system is responsible for holding its political leaders accountable to the rule of law, we have to define what we mean by political leaders. Obviously, there are different levels of political leaders. We are going to focus on political leaders in charge of institutions - the heads of state, the ministers, the members of parliament.

We will highlight the first two levels. Not that the members of parliament do not infringe the rule of law, but their infringement has a lesser effect. As a well-known English politician once said: "Power tends to corrupt and absolute power corrupts absolutely." Recent history has shown that this maxim has lost nothing of its relevance. Political leaders who do infringe the rule of law are careful to make sure that they will not be caught to account.

General Pinochet, the former Chilean President, is a good example of this. Not content with the protection offered by the international law to heads of state, he did not hesitate to have an amnesty law passed and to have himself written a senator for life, thus hoping to achieve immunity designed to keep him out of the clutches of law forever. Another interesting example is the Libyan head of state, Mr. Kaddafi. Although suspected of involvement in terrorist activities, such as the blowing up of a DC-10 aircraft of the UTA Airlines in 1989, he has just seen the highest French court in March of this year confirm his immunity from prosecution as a head of state under customary international law. That was on the 30th of March of this year.

There are, however, infringements of the rule of law, often concerning personal financial interests of political leaders, which may seem of lesser importance compared to terrorism and wholesale murder of opponents. Yet this type of financial corruption is the worm eating at the heart of society. As we would say in French: "Fish begins to stink at the head." And those who indulge in graft and corruption are obviously clever enough to cover their traces by subtler means than vulgar laws of amnesty or direct immunity.

As an investigating magistrate, I must express today my concern and astonishment when I see what is happening in Italy. The Italian government is attempting to push through legislation designed to hamper international investigations into financial offences at the very time the whole international community is aware of the need of a greater and more rapid judicial cooperation. And I think that today they have succeeded to get this law through. That's reality. In fields such as money laundering, we are confronted with the spectacle of the Italian government trying to create new barriers to investigators designed to make it ever more difficult to successfully prosecute political leaders found with their hands in the till. And once such justice-defeating laws are passed, courts have no choice but to apply them.

Let us contrast this attitude with that of Belgium, which has recently rewritten its legislation after the Augusta-Dassault corruption cases to make ministers more accountable before normal courts of law with only minimum exceptions. This attitude is in contrast to France, which has taken the opposite direction and set up a special court solely designed to try cases involving ministers or former ministers for offences committed in office. The majority of judges in this court are chosen from among both houses of the French Parliament. Nevertheless, ministers can be brought to trial before this court. On the contrary, the French head of state seems to be above all judgment of a human court. His Judgment Day is left to a more divine authority. Not only cannot the French President be brought to trial, he cannot even stand as a witness if he does not feel inclined to do so, should the French highest court follow the Attorney General's submissions. We will know this in November.

Ladies and gentlemen, immunity in this extent amounts to impunity, and the rule of law has no room for impunity, because impunity is the very negation of the rule of law. The rule of law is the lamp, which lights democracy. It abhors darkness. The French President's immunity theoretically ends with the end of his term in office, unless, of course, the law is changed between now and then. And even if there are laws which do go after financial offences by politicians, it is easy to slow down the machinery of justice by making the investigators´ work more difficult, either by placing obstacles along their path, or by giving discrete instructions to haste more slowly, as President Mitterand made it quite clear.

It is an open secret that many investigations into financial offences by politicians were snuffed out during the Mitterand presidency. The judicial system, judges and investigating magistrates can do their best to make political leaders accountable to the rule of law, but judges and magistrates are themselves governed by laws. When these laws do not enable them to succeed in their task, it is the parliament alone that can bring the solution, often under the pressure of the public opinion. And here, organizations such as Transparency International and local communities in Europe and other continents have a vital part to play in bringing about changes, which we hope are going to make politicians fully accountable to the rule of law. Thank you.

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