Friday, January 22, 2010

Justice fallen into the wrong hands

"In other words, the processes being administered by the Chinese leadership against its dissidents, by the Iranian regime against its protesters, or by Hugo Chavez in Venezuela against the opposition, should no longer be described as trials. "
The very grammar of justice has fallen into the wrong hands.

By ROBERT AMSTERDAM
Human rights are under attack, and language is the weapon. The very grammar of justice has fallen into the wrong hands, instrumentalized in the elaborate and sensational theaters of due process. A trial without any rights of defense is still called a "trial," a conviction ordered down from an autocratic president rather than a judge is still called a "conviction," and there continues to exist an overwhelming and damaging perception that the law and courts work just fine—an assumption eagerly embraced by the financial community looking to toss heaps of capital into subprime judicial environments.

When Mikhail Khodorkovsky, a Russian political prisoner whose case I am involved in, was put on trial for the first time in 2004, the government applied all its media powers to project the language of justice: They held him in shackles, placed him in a cage on television, and put on a good show trial where a judge pretends to listen to the defense as though the verdict would not arrive via a call from the Kremlin. This is what the Russians call "telephone justice."

It looks like a trial; to detached observers it might even smell something like due process; but underneath all the familiar language, there is the rot of corruption, political fiat and arbitrariness. We have seen it with China's 11-year sentence handed down to the dissident Liu Xiaobo, which was met by stone silence in the White House. We can read the borrowed grammar in the mysterious death of Dr. Ramin Pourandarjani in Iran, who was arrested after testifying before parliament that he refused pressure to sign false death certificates of fatally tortured protesters. Even the Burmese junta has become a master of bureaucratic process, extending Aung San Suu Kyi's house arrest after a sham trial.

In another case I am involved with in Venezuela, President Hugo Chávez goes on national television to attack a recently released political prisoner, Eligio Cedeño, and then demand a 30-year sentence for the judge who ordered his conditional release, which was supported by international expert opinion. Chávez called both Mr. Cedeño and the judge "bandits," despite the fact that neither of these individuals had committed any crime nor ever been convicted of any offense. For these countries' leaders, it is much more important that the media adopt their narrative and language to portray their enemies as criminals than it is to administer actual justice or prove a real case.

When the vocabulary of criminal justice is hijacked, we rarely can get the media to present an unbiased account of events that considers the fact that the charges may be incoherent, or the evidence nonexistent, or that the procedural games of prosecutors might be completely outside the law. For these governments, the application of the charge is more of a goal than any conviction, because they can count upon their authority to erase the presumption of innocence in a trial. They know that by simply labeling dissidents or dissenters as criminals, the public will come to see them as such.

Once someone is charged, very few observers are interested in the possible motivations of those bringing the charges. All processes are deemed regular and included within the same grammar, whether or not the investigation has been independent or the prosecution politically motivated.

My self-help remedy is a very simple one. I propose that journalists reconsider their liberal use of the word "trial," unless it is used to describe a process of relative equality of arms between defense and prosecution, before a fair and independent tribunal as envisioned by a plethora of international conventions and treaties. In other words, the processes being administered by the Chinese leadership against its dissidents, by the Iranian regime against its protesters, or by Hugo Chavez in Venezuela against the opposition, should no longer be described as trials. I say this because the presumption of innocence is also enshrined in these same conventions. This concept alone is something that autocratic leaders, in particular, fail to comprehend and regularly abuse.

So why should we provide these leaders with the presumption of regularity by trusting that their institutions operate in an independent and legitimate manner? Why should we not claw back the vocabulary and grammar of human rights, so that we become less fixated on a given government's narrative of events and more focused on their motivation for bringing the charges described?

Stokley Carmichael, the famous 1960s civil-rights activist, once wrote, "We have to fight for the right to invent the terms which allow ourselves to define our relations to society, and we have to fight that these terms will be accepted. This is the first need of a free people, and the first right refused by every oppressor."

In human rights, language is everything, and it's time that we take it back.

Mr. Amsterdam is an international lawyer specializing in the politics of business and the rule of law in emerging markets.

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