Bush v. Gore and the Case of General Pinochet

Henry GAO

Perspectives, Vol. 2, No. 3

Augusto Pinochet was made commander-in-chief of the Chilean Army in June 1973 by President Allende, who was also the head of the Chilean Communist Party. A few months later, President Allende was killed in a coup of five thousand casualties led by General Pinochet. After disbanding the Chilean Parliament and banning all political and trade union activities, Pinochet appointed himself President in 1974. During General Pinochet's seventeen years in power, more than three thousand supporters of the Allende regime were killed, thousands tortured, and many thousands more forced into exile. Many see General Pinochet as one of the worst dictators of the 20th century. Yet many others, at least during the 1970s, regarded him as a hero who rescued his country from chaos and the threat of Communism.

Time passed by and more and more people changed their minds. In 1990 General Pinochet reluctantly stepped down as President, but still remained as the army commander-in-chief. In 1998 he finally relinquished his post in the army, but became a life Senator of the Chilean parliament the very next day. With nothing better to do in his own country, General Pinochet went to London for a back surgery in October 1998. On October 17, the General was arrested in London on a warrant from Spain requesting his extradition on murder charges.

General Pinochet visited Britain several times before 1998, and every time human rights organizations, such as Amnesty International (AI), urged the authorities in London to arrest him. AI argued that under the terms of the United Nations Convention against Torture, every state was obliged to take into custody or take other legal measures against anyone who was alleged to have committed torture. The British authorities repeatedly rejected AI's request, saying that they had no right to detain General Pinochet while he was visiting in his capacity as a private Chilean citizen, while General Pinochet repeatedly stated that as a Chilean senator he had diplomatic immunity. But in October 1998, the Spanish authorities made their request, through Interpol, under the terms of a European Convention, which requires signatories to help each other on matters relating to terrorism.

The case quickly went to the highest court of Britain, the House of Lords. On November 25, 1998 the law lords decided, by 3-2, that General Pinochet would not be immune from prosecution. On December 17, however, the Law Lords set the November 25 decision aside in an unprecedented decision in British legal history. The reason for reversal, as declared by Lord Browne-Wilkinson, was the connection between Lord Hoffman, who cast the decisive vote in the November decision, and AI, which was deeply involved in the Pinochet case.

There are several interesting aspects to the case of General Pinochet. First, because Lord Hoffman had long been regarded as the cleverest, "the most dominant personality," and the most controversial figure in the Lords, it is hard to believe that his connection with AI was secret at all. Second, it is hard to say that Lord Hoffman had a record of toeing the AI line. For example, in October of the same year, he made a ruling opposing an AI position when serving on the judicial committee of the Privy Council (the highest appellate court for the Commonwealth countries), and this decision made AI "very uneasy."

The Pinochet defense team, however, did not allege that Lord Hoffmann was in fact biased. The contention was that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased. In other words, it was alleged that there is an appearance of bias, not actual bias.

Speaking for the Law Lords, Lord Browne-Wilkinson recognized that there were two kinds of cases where the fundamental principle that "a man may not be a judge in his own cause" would be implemented. The first type of cases involves situations where a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behavior may give rise to a suspicion that he is not impartial because of, for example, his friendship with a party.

Because Lord Hoffman had been actively involved in the activities of AI, Lord Browne-Wilkinson and AI had an interest in the outcome of the Pinochet case, Lord Hoffman should have been disqualified, and since he did not disqualify himself but participated in the ruling, the decision should be vacated.

There are some similarities between the case of General Pinochet and that of Bush v. Gore. Similar to the case of Pinochet, one could argue that the decision of Bush v. Gore should also be set aside, because six members of the U.S. Supreme Court were nominated by the Republicans (although one of them later changed his ideological line) and two of them were nominated by the father of one of the parties (although only one voted for the son this time). In addition, there was allegation that Chief Justice Rehnquist intimidated voters while serving as the Republican Party's head of "ballot security" in Phoenix, Arizona between 1958-1962. Finally, Ted Olson, the attorney who represented George W. Bush before the Supreme Court, is a partner in the same law firm as Gene Scalia, the son of Justice Scalia. As such, this case might have had a different outcome should the Americans follow the Pinochet precedent of their British cousin. At least, would it be better for the U.S. Supreme Court to set aside the original holding and remand it to the lower court?

The reality is that most, if not all, members of the American judiciary are sent to the bench by certain political group. And in such a highly political case, it is hard to name even a single judge in US who could be accepted by both parties as without "appearance of bias."

Would it be better for courts to refuse to hear the case and leave it to the Congress? But any refusal to hear the case may also be criticized as "biased" and, worse still, it may be criticized by both parties, considering the sheer number of lawsuits filed by both camps.

(The author is a J.D. candidate at the Vanderbilt Law School.)