The ICJ welcomes the referral to the International Court of Justice of the dispute concerning the immunities and privileges of the UN Special Rapporteur on the Independence of Judges and Lawyers.
On 5 August 1998, the UN Economic and Social Council, acting on a note presented by the UN Secretary-General, adopted by consensus a resolution to that effect. The Council also called upon the Government of Malaysia ‘to ensure that all judgments and proceedings in this matter in the Malaysian courts are stayed pending receipt of the advisory opinion of the International Court of Justice, which shall be accepted by the parties.’
The ICJ’s Centre of Independence of Judges and Lawyers has long advocated such a move. On this occasion the ICJ said: ‘It is significant that the resolution is adopted by consensus. It is essential for the credibility of the UN that the immunities of the Special Rapporteurs are fully respected. We appreciate the determination of the UN Secretary-General to take this issue to the World Court as stipulated in the Convention on the Privileges and Immunities of the United Nations.’
The ICJ has been gravely concerned by the attack in Malaysia on the immunity granted under international law to Data’ Param Cumaraswamy, the UN Special Rapporteur on the Independence of Judges and Lawyers, who is a Malaysian national. The CIJL urged Malaysia to abide with its international obligations and urged the UN Secretary-General to take the matter to the International Court of Justice as required in such cases by the 1946 Convention on Privileges and Immunities of the United Nations. Malaysia acceded to this convention without reservations.
The immunity of Mr. Cumaraswamy was undermined by a civil suit filed against him in a Malaysian court. The case originated when the UN Special Rapporteur, was interviewed by the London-based journal International Commercial Litigation. He was quoted in the November 1995 issue as saying, inter alia, that he was investigating complaints that highly placed businessmen were manipulating the Malaysian judicial system. Other persons in Malaysia including lawyers and journalists were also interviewed. Proceedings were also initiated against some of them.
On 6 January 1997, Mr. Cumaraswamy was served with a writ of summons dated 12 December 1996. A libel suit was brought against him before the High Court of Malaysia by two Malaysian companies. They claim damages of approximately US$14.7 million against the Special Rapporteur and ask the Court to issue an injunction to restrain him from “further speaking or publishing or causing to be published … words defamatory of the Plaintiffs”. Mr. Cumaraswamy requested Malaysian courts at all levels to uphold his immunity and dismiss the case… in vain.
As a UN Special Rapporteur, Mr. Cumaraswamy is protected by Article VI, Section 22 of the above-mentioned 1946 Convention. This provision accords UN experts on mission, such as Special Rapporteurs, the privileges and immunities necessary for the independent exercise of their functions. On 7 March 1997, UN Secretary-General Kofi Annan, issued a certificate asserting the Special Rapporteur’s immunity. The Malaysian courts ignored it. Meanwhile, three related suits of defamation were also filed against the Special Rapporteur for the amount of US$ 55 million.
