The International Bar Association (IBA) has called on the United Nations Secretary General Kofi Annan to refer to the International Court of Justice (ICJ) a Malaysian Federal Court decision against the U.N. special rapporteur on the independence of judges and lawyers.

The decision to proceed with a RM60 million (US.16 million) libel action - brought by two Malaysian commercial companies - has been reached in contravention of Article 22 of the Convention on Privileges and Immunities of the United Nations. The Convention asserts that his role as a U.N. expert accords Dato Param Cumaraswamy the privileges and immunities necessary for the independent exercise of his function.

The suit arises out of an interview given by Dato Cumaraswamy to a reporter with the London-based publication International Commercial Litigation, in which he was reported as saying he was investigating complaints that highly-placed businessmen were manipulating the Malaysian judicial system. The article has since resulted in the filing of three additional writs.

The Federal Court decision, handed down on 19 February, holds that the Convention, which Malaysia acceded to on 1957, does not apply to rapporteurs. Despite receiving a certificate from the U.N. secretary general last year outlining the privileges and immunities to which Dato Cumaraswamy is entitled, the court has dismissed the special rapporteur’s application for leave to appeal against the action.

Dato Cumaraswamy has now exhausted all available domestic remedies to have the case struck out, and he could face full trials in all four suits.

"We are not dealing with a full-fledged diplomat or any other member of a sovereignty. We are dealing with a rapporteur," said President of the Court of Appeal Justice Lamin Yunus. "In the present case, the mandate of a rapporteur, to put it in layman’s words, is an unpaid, part-time supplier of information to the United Nations."

IBA President Desmond Fernando PC has written to the U.N. secretary general, along with Hans Corell, the U.N. under-secretary general for legal affairs, urging immediate action.

Mr. Fernando, acting on behalf of the IBA’s 173 bar association and law society members who together represent some 2.5 million lawyers, has called for the matter to be referred to the ICJ for an opinion and asked that the U.N. request the cooperation of the Malaysian government to stay proceedings in all four suits currently pending against the special rapporteur.

(Source: Aliran Monthly, April 1998)