Any anthology of courageous lawyers must include the intrepid Malaysian jurist, Dato Param Cumaraswamy. After a gruelling sedition trial in 1985 for his criticism of the functioning of the Malaysian Pardons Board, Param was honourably acquitted. He has again emerged victorious in his recent conflict with the Malaysian authorities, thanks to a recent path-breaking judgment of the International Court of Justice (ICJ). The Commission on Human Rights in March 1994 appointed Param as its special rapporteur on the Independence of Judges and Lawyers. His mandate inter alia was to inquire into substantial allegations concerning and to identify and record attacks on the independence of the judiciary, lawyers and court officials.In November 1995, Cumaraswamy, in his capacity as the special rapporteur, gave an interview to a magazine, International Commercial Litigation, commenting on certain litigations that had been initiated in Malaysian courts inter alia in these terms: "Complaints are rife that certain highlyplaced personalities in Malaysia including those in business and corporate sectors are manipulating the system of justice - under the mandate entrusted to me by the UN Commission on Human Rights, I am duty bound to investigate these complaints and report to the same Commission."An article `Malaysian Justice on Trial' was published in the magazine. It gave a critical appraisal of the Malaysian judicial system in relation to a number of court decisions. It published the views of various Malaysian lawyers and journalists that as a result of these decisions, foreign investors and manufacturers might lose confidence in the Malaysian judicial system. Two commercial companies in Malaysia filed suits for damages against Param for libel and claimed damages for $42 million. Thereafter three more suits were filed against Param by other commercial firms and one of the lawyers mentioned in the article for alleged defamation claiming damages totalling approximately $112 million.On January 20, 1997, Cumaraswamy filedan application in the High Court of Malaysia to strike out the plaintiffs' writ on the ground that the words that were the subject matter of the suits were spoken by him in the course of performing his mission for the UN as its special rapporteur and he enjoyed immunity from legal process under the General Convention on the Privileges and Immunities of the UN 1946 (hereinafter the Convention). The Convention was approved by the General Assembly in February 1944. Malaysia became a party to the Convention without any reservation in October 1957.Section 22(b) of Article VI of the Convention inter alia provides that "experts performing mi-ssions for the UN shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions. In particular they shall be accorded in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of any kind.." TheSecretary-General issued a note on March 7, 1997, confirming that the words which constitute the basis of plaintiffs' complaint were spoken by the Special Rapporteur in the course of his mission and that Cumaraswamy was immune from legal process.The Malaysian High Court on June 28, 1997, rejected the plea of immunity inter alia on the ground that the Secretary-General's note was merely "an opinion" with scant probative value and was not binding. This was upheld by the Court of Appeal. The Federal Court of Mal-aysia refused leave to appeal and described Cumaraswamy as an unpaid information gatherer.In August 1998 an advisory opinion on this issue was sought from the ICJ under Section 30 of the Convention under which all differences arising out of the interpretation of the Convention shall be referred to the Court and the opinion given by the Court shall be accepted as decisive. The ICJ rendered its advisory opinion on April 29, 1999. It held that Cumaraswamy must be regarded as an expert on missionwithin the meaning of Article VI, Section 22 and consequently these provisions were applicable to him at the time of his statements.The Court adopted its previous reasoning in the Mazilu case that "the purpose of Section 22 is. evident, namely, to enable the UN to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them such privileges and immunities as are necessary for the independent exercise of their functions. .The essence of the matter lies not in their administrative position but in the nature of their mission". The Court agreed with the Secretary-General that Cumaraswamy in speaking the words quoted in the article was acting in the course of the performance of his mission as a Special Rapporteur of the Commission. Consequently, Article VI, Section 22 (b), of the General Convention was applicable. The Court, by 14 votes to one, inter alia opined that Cumaraswamy is entitled to immunity from legal process for the words spoken during theinterview and was unanimous that he "shall be held financially harmless for any costs imposed upon him by the Malaysian courts".Of utmost significance is the Court's holding that the Secretary-General has the primary responsibility to safeguard the interests of the UN and to exercise a measure of functional protection of its agents. Consequently he has to assess whether agents of the UN acted within the scope of their functions and, where he so concludes, he has to protect them, including experts and Special Rapporteurs on mission, by asserting their immunity. Therefore when national courts are seized of a case in which the immunity of a UN agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding creates a presumption and is to be given the greatest weight by national courts and can only be set aside for the most compelling reasons. The Court concluded that the Malaysian Government's failure to transmit the Secretary-General'sfinding to the competent courts was in breach of its obligation under the Convention. It further held that Malaysia is obligated to communicate this advisory opinion to the competent courts, in order that its international obligations be given effect and Cumaraswamy's immunity be respected.The ICJ opinion raises far-reaching issues of jurisdiction of domestic courts vis-a-vis the ICJ. It is a salutary shot in the arm for the independence and protection of experts, special rapporteurs and all agents of the UN acting in performance of their mission. It is also a vindication of the freedom of expression of its Special Rapporteurs and is a tribute to the fearlessness and independence of Cumaraswamy.
