JURIST - Hotline

Monday, May 05, 2008

Georgia lethal injection procedures still flawed despite post-Baze ruling
6:51 PM ET

Michael Siem [lawyer for Jack Alderman, Clifford Chance]: "In applying the US Supreme Court's holding in Baze v. Rees [last week], Judge Martin found the Georgia Lethal Injection Procedures constitutional despite the Procedures' failure to provide the safeguards required by the plurality opinion. Accordingly, Mr. Alderman intends to appeal.

Specifically, Georgia's Procedures are flawed even after Baze because they do not require the following safeguards: there are no assurances that the inmate is properly anesthetized prior to the injection of the two painful drugs: pancuronium bromide and potassium chloride; no confirmation of unconsciousness; no requirement that the team practices prior to an execution, and no specified minimum qualifications for those involved in the executions. Furthermore, Georgia uses one less gram of sodium pentothal and a longer tube than Kentucky. Despite the shortcomings, Judge Martin upheld the constitutionality of the Georgia Procedures based on the State's assurances that while these requirement are not present in the Procedures, in practice they perform some of these safeguards. Judge Martin, ruling on Defendants' Motion for Summary Judgment, resolved the material facts regarding the evidence that the individuals involved in the executions are untrained, unqualified, do not check for unconsciousness, and cannot distinguish between unconsciousness and merely being asleep in Defendants favor.

Further undermining the assurance that executions will be carried out in a constitutional manner is the 11th Circuit's decision in McNair et al., v. Allen, et al., __ F.3d___, 2008 U.S. App. Lexis 1919 (11th Circuit January 29, 2008). The 11th Circuit held that the statute of limitations on § 1983 method of execution claims begin to run when an inmate completes his direct appeal. According to the 11th Circuit, a condemned inmate will have to file a method of execution challenge simultaneous with his habeas petition. This means that an inmate is forced to challenge the method of his potential execution before knowing whether his sentence of death will be upheld upon federal review. This decisions is even more disturbing when put in context. Mr. Alderman was precluded from bringing his claim prior to 2006 because the 11th Circuit barred § 1983 method of execution claims until the Supreme Court's decision in Hill v. McDonough, 547 U.S. 573 (2006). Thus, the 11th Circuit has made is procedurally impossible for Mr. Alderman to challenge the method of execution in Georgia.

There continue to be significant risks with the lethal injection procedures around the country. States are in the best position to determine whether the inmate is properly anesthetized by merely drawing samples (of the inmate's blood) within one hour after death, yet they refuse to take this step because they are concerned what the results might reveal. Furthermore, states prefer to rely on procedural bars instead of drafting procedures that ameliorate the substantial risks of pain and suffering."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Saturday, May 03, 2008

Pakistan: when and how will the ousted judges be restored?
10:20 PM ET

Faisal Naseem Chaudhry [advocate, Lahore High Court; Lahore, Pakistan]: "The Dubai deliberations are over. In a Friday press conference, Mian Nawaz Sharif (MNS) announced that a Resolution restoring Pakistan's ousted judges shall be tabled before the National Assembly on May 12; shall be passed by a simple majority of the House and the executive authority (Prime Minister) shall honour the resolution by passing an Executive Order reinstating the Nov 3 deposed judges. MNS also mentioned the establishment of a committee that will finalize the modalities of restoration including, but not limited to, the language of the Draft Resolution.

Shortly after the above-noted press conference as of May 01, Pakistan People's Party leader Asif Ali Zardari (AAZ) clarified that yet a 'formula' is required for the restoration and the 'committee' shall decide the fate of the deposed judges.

AAZ's Federal Law Minister Mr. Farooq Naik further clarified that the 'committee' has been given an assignment which can only be accomplished with consensus. In case of divergent views, even the slightest, the matter shall again be forwarded to the leadership of both the main political parties, i.e. AAZ and MNS. Most importantly, Mr. Naik said 'yes' to the possibility that restoration may not take place on 12 May if the committee fails in its deliberations and consensus.

MNS categorically stated that the Resolution shall not be directly linked with any Constitutional Package; yet Mr. Naik rebutted the same, reiterating that both shall be tabled on the same day. He said 'the same day'; he did not say 'on 12 May'.

MNS in his press conference accepted the continuity of PCO judges in the Supreme as well as all the 04 High Courts. On Saturday the Pakistan Bar Council in its afternoon Resolution restated that the lawyers' fraternity shall not accept the PCO judges. It further stated that in case nothing happens on 12 May, a convention of Pakistan Bar shall be convened on 16 May.

All this makes one wonder if in fact the deposed judges will be restored May 12. I fear not, for the following reasons:

Notwithstanding whether Chief Justice Chaudhry's position is made tenure-based, both the political parties had divergent views vis-à-vis the modalities of restoration. The very first difference of opinion was that MNS preferred a Simple Majority Resolution whereas AAZ had been advocating a Constitutional Amendment through a Composite Constitutional Package. The difference between the two is obvious:

a. A Simple Majority Resolution is not of a binding nature; rather, under the rules and procedures of the National Assembly, it is regarded as a request to the Executive which alone is competent to decide how to honour it i.e. either through an Executive Order or by an Act of Parliament. The Executive can also put the matter in limbo. Our constitutional history is replete with such examples of 'Simple Majority Resolutions' which have never been acted upon.

b. A constitutional Amendment passed by a two-thirds majority of both houses of parliament (the National Assembly & the Senate) is not only of a binding nature, but it also amends the constitution. The parliament is the supreme legislative body and it can make any law whatsoever not in conflict with humanity, decency, federation of Pakistan (it can not make Pakistan a Confederation), and the independence of judiciary etc.

c. MNS is of the view that if you bring a constitutional amendment for the restoration of the deposed judges, that would mean you accept not only the Nov 3 PCO but also subsequent extra-constitutional alterations in the Constitution incorporated by President Musharraf.

d. But MNS does not realize that a Supreme Court headed by current PCO Chief Justice Abdul Hameed cannot issue an injunction preventing parliament from amend the constitution. The same court can, however, issue an injunction preventing the Executive Authority from honouring a Simple Majority Resolution. An Executive headed by a PPP's Prime Minster is not likely to disobey Justice Dogar. What will happen in this case? A few demonstrations, another few rallies, some tele-programmes. The clock will continue ticking.

AAZ has played this situation smartly, cleverly, and rather cunningly. By having the dialogues at Dubai, he has successfully avoided public as well as lawyers' pressure. If the dialogues had been conducted even in the remotest part of Pakistan, there would had been crowds standing out on the road and some lawyers too, holding black flags. AAZ may have some real 'family engagements' in Dubai but equally surprising is the fact that he was back to Pakistan on May 02.

AAZ has also undermined the PML(N) while inducing them to accept Federal Ministries on the sole condition that judiciary shall be restored to Nov 3 position. Once they accepted the portfolios literally half-heartedly, AAZ was saying on 29 April, "Muree Declaration was a political statement'.

I have every good reason to wonder how AAZ will live with Chief Justice Chaudhry even till June 2010 once AAZ has openly spoken against him with BBC's correspondent. You may curtail his powers even by a constitutional amendment, yet a man occupying such a powerful seat can be dangerous for AAZ. This is Pakistan, where you will find conflicting judgements on every proposition of law and I will not be surprised if a petition challenging the curtailment of administrative powers is filed before Chief Justice Chaudhry. He will issue notice and may suspend the amendment. Again what will happen? The Executive will have to contest the petition even if the injunctive order was wrong and during the entire cushion period, Chief Justice Chaudhry will continue exercising his previously taken-away administrative powers. Will such a possibility be acceptable to AAZ?

Our constitution is silent on the number of judges to be present in the Supreme Court. The 1997 Judges Act requires the Supreme Court not to exceed 17 judges, including the Chief Justice. On Nov 3, 13 were deposed. Justice Bhagwandas retired at the age of 65 leaving behind 12. The present Supreme Court is composed of 16 PCO judges including Justice Dogar. Adding another 12 will make it the largest Supreme Court in this world. But most importantly, even if an Executive Order is passed on the evening of 12 May, how can these 28 will work together once the 1997 Judges Act does not allow more than 17 judges. Hence, technically speaking, before an Executive Order is passed, an amendment shall be required to the 1997 Judges Act. A bill shall be required by simple majority requiring assent of the President, to make the Bill an Act of Parliament thereby raising the upper limit to 28 judges. Can all this exercise take place on the afternoon of 12 May?

Following the statement of Mr. Naik, the Federal Law Minster, that the Resolution and Constitutional Amendment shall be tabled on the same day, again all this exercise cannot for all practical reasons take place on the same day. If the instruments are not tabled the same day, I am 100% sure the judges shall not be restored. The reason why is simple. AAZ will not accept an all-powerful Chief Justice Chaudhry.

One should not forget which type of working relationship there will be among the deposed and the PCO judges. One shall not be surprised if there are little altercations between the two groups reported in press.

If PCO judges continue as even accepted by MNS, the lawyers' community shall protest. The Pakistan Bar Council is not that concerned about the PCO judges who took oaths on the evening of Nov 3. Eyebrows are raised in respect of those subsequent appointments where the 'consultation' for this purpose took place between Justice Dogar and President Musharraf. The lawyers regard Justice Dogar as an illegal de facto Chief Justice of Pakistan and hold the view that the mandatory 'consultation' as required by the constitution was erroneous. Hence, all the subsequent appointments to the Supreme Court and the Provincial High Courts are void.

President Musharraf's reaction cannot be ignored. Friday, two news items caught my attention. Firstly that he would not oppose the reinstatement; secondly that he is ready to live without Article 58(2)(b) of the Constitution (giving him draconian powers to dissolve the National Assembly and the Government).

I believe the first was incorrect. If President Musharraf asks AAZ not to reinstate the deposed judges and in return AAZ make take away the above mentioned draconian powers ensuring 05 years uninterrupted rule to AAZ, what would be his reaction? AAZ would accept the proposal. For President Musharraf, the reinstatement of deposed judges is more than a nightmare. He was scared of and uncomfortable with one Iftikhar Chaudhry; now there are 60 of him. So, the Presidency will not keep silent on reinstatement particularly when Justice Dogar would also not like to remain indolent on 12 May and thereafter. For the last 6 months, he has been enjoying the trappings of a Chief Justice. If he has decided to live with those trappings, he can offer anything to AAZ. Two attractive proposals from two pillars of state. AAZ cannot ask for more.

Six months have passed since Nov 3 and every passing day had been adding more complexities to this already so tricky situation. So much is up for discussion; a de facto Supreme Court, a de jure Supreme Court, a de facto Chief Justice, a de jure Chief Justice, an injunction against the Executive Order, the legality of an Executive Order, the non-binding nature of a Simple Majority Resolution, the total number of judges in the Supreme Court, the fate of Justice Dogar's judgment legalizing the Nov 3 PCO and so on and so forth.

I sincerely hope my assessment proves wrong and that the deposed judges shall be restored on 12 May. The fate of Chief Justice Chaudhry is also unclear. It does not matter what MNS says. What matters are the words coming from the mouth of AAZ."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Friday, May 02, 2008

Report from Guantanamo: military commissions continue to fail Hamdan
9:45 PM ET

Deborah Colson [Senior Associate, Human Rights First]: " 'America tells the whole world that it has freedom and justice. I do not see that...You do not give us the least bit of humanity…Give me a just court…Try me with a just law.'

Those were the words of Salim Ahmed Hamdan at his military commission proceeding in Guantanamo Bay this week. Mr. Hamdan interrupted a pretrial hearing during which the lawyers were mired in technical legal arguments to question why the government is trying him in a made-up system pursuant to made-up rules, and to observe that he always loses—even when he wins—because the government repeatedly changes the rules midstream.

Mr. Hamdan, a 36-year old Yemeni citizen, was captured in Afghanistan in November 2001 and has been detained at Guantanamo for nearly six years. He is accused of working as Osama bin Laden’s personal driver and armed bodyguard and transporting missiles for use against American soldiers. Mr. Hamdan’s lawyers acknowledge that he worked as bin Laden’s driver, but they say he was never a member of al Qaeda and never conspired to engage in any terrorist acts.

On Tuesday, Mr. Hamdan became the fourth Guantanamo prisoner to boycott the military commission system. After a 20-minute exchange with the judge, Navy Capt. Keith Allred, Mr. Hamdan announced his refusal to participate in any future proceedings, and he forbade his attorneys from speaking on his behalf without him there.

It is difficult to know why Mr. Hamdan finally gave up on the system this week after having cooperated with his attorneys and the court for so long. One of his lawyers suggested at a press conference that seven years of confinement and several rounds of wins and losses have left Mr. Hamdan feeling increasingly frustrated and depressed.

And no wonder. Up to this point, victory has done Mr. Hamdan virtually no good.

His challenge to the first military commission system established by President Bush made it all the way to the Supreme Court, where he won. In 2006, the Supreme Court held that President Bush's system violated international and U.S. military law. Following the Supreme Court’s holding, however, Congress established a new military commission system under the Military Commissions Act of 2006 ("MCA"), shortly after which Mr. Hamdan was re-charged. In December 2006, he was also transferred—with no explanation—from a medium security facility at Guantanamo to solitary confinement. For the past sixteen months, Mr. Hamdan has had practically no human contact and little access to natural light and air. So when Judge Allred told Mr. Hamdan on Tuesday that his victory before the Supreme Court should inspire "great faith in America law," it was only fitting when Mr. Hamdan responded: "I didn't win the case."

Mr. Hamdan's critique was not the only indictment of the military commission system we heard this week. On Monday, Air Force Col. Morris Davis, the former chief prosecutor at Guantanamo, testified on behalf of Mr. Hamdan. Col. Davis has spoken publicly about the flaws in the system many times since his resignation in October 2007, and most of what he said on the witness stand had already been reported in the press.

But his testimony was remarkable nonetheless. Until several months before he resigned, Col. Davis was a staunch defender of the military commissions. In fact, in June 2007, he published an op-ed in the New York Times in which he stated that "the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes.” Col. Davis also has no qualms about the case against Mr. Hamdan. He testified on Monday that he believes the charges against Mr. Hamdan are “warranted by the evidence."

And yet this former chief prosecutor agreed to testify for the defense. He subjected himself to cross-examination by the new chief prosecutor; he endured questions about his prior conversations with two former employees who were sitting in the courtroom and continue to work on the Hamdan case; and he opened himself to public scrutiny and the judgment of the court.

He did this because he believes the military commission system will never achieve just results. His concerns are twofold: Col. Davis criticizes the government’s willingness to rely on coerced evidence, and he asserts that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and members of his staff. He spoke of the pressure he received to charge "sexy cases" and to file charges against the high-value prisoners before the next presidential election because, once he "g[ot] the train rolling," "it would be hard for the next president to stop the process."

Col. Davis is not the only Guantanamo prosecutor to have resigned. In fact, four others — Major Robert Preston, Captain John Carr, Captain Carrie Wolf, and Lieutenant Colonel Stuart Couch — preceded him and made similar allegations of political interference and pressure to rely on coerced evidence. It is widely believed that additional prosecutors have also raised the prospect of resignation.

Public confidence in Guantanamo is already at an all-time low. But it is bound to sink even lower if more defendants boycott, and the prosecutors who remain end up trying a series of empty chairs."

"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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ICTY appeals judgment in Hadzihasanovic & Kubura case striking
11:40 AM ET

Aleksandar Momirov [Lecturer, Erasmus University of Rotterdam]: "If the recent acquittal of Ramush Haradinaj by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) had all the characteristics of a judicial earthquake, then it is only fair to say that the subsequent Appeals Chamber's Judgment in the case against Enver Hadzihasanovic and Amir Kubura, rendered on 22 April 2008, had the impact of a significant aftershock.

The case covers the activities of the Army of Bosnia and Herzegovina (commonly known as ‘ABiH’ and considered by many to merely have been the military wing of the Bosnian Muslim political party, the SDA), defending the interests of the Sarajevo based Muslim government of Bosnia during 1993 and 1994. During the fighting against the other warring factions in the divided state, Hadžihasanović was Commander of the ABiH 3rd Corps, later becoming Chief of the Supreme Command Staff of ABiH. Kubura was Chief of Staff of the 7th Muslim Mountain Brigade of the ABiH 3rd Corps. In 2006 both men were convicted, based exclusively on Article 7 (3) of the ICTY Statute (superior criminal responsibility) for violations of laws or customs of war, having failed to prevent or punish the crimes committed under their command. Hadžihasanović was sentenced to five years of imprisonment. Kubura received a sentence of two and a half years and was granted early release less than one month after his conviction. Upholding the Trial Chamber’s judgment in part, partially granting the appeal of the Defense and dismissing all points of appeal coming from the Prosecution, the Appeals Chamber reversed several points of conviction and reduced Hadžihasanović’s sentence to 3 years and 6 months. Kubura saw his sentence drop to 2 years.

At best, the Hadžihasanović and Kubura case deserves the epithet of ‘striking’; an epithet justified by substance, proceedings and final outcome alike. Some noteworthy tidbits are illustrative.

The Hadžihasanović case is remarkable for it is the Tribunal’s principal case where the presence and infamous conduct of the Mujahedin in Bosnia is considered in some depth. Often euphemistically referred to as ‘foreign combatants’, the Mujahedin were comprised of men from the Middle East, Northern Africa and local Muslim fighters and were notorious for their ‘fighting tactics’ throughout central Bosnia. The Mujahedin had training camps all across territory held by the ABiH. Their combat related conduct, including practices such as ritual decapitation of hostage-taken Serbs and Croats, as well as their demeanor in general was widely deemed repugnant. While under-reported during the war and at times even dismissed as an imaginary product of the Serbian propaganda machinery, elements of the Mujahedin and controversies surrounding their naturalization have remained embedded in Bosnia up until today. (for a fascinating read see OTP expert witness in Delić, Evan F. Kohlmann: Al-Qaida’s Jihad in Europe: The Afghan-Bosnian Network)

Going beyond factual substance, the current case dealt with the question of whether the activities of the Mujahedin could be linked to the ABiH, and more specifically to the ABiH 3rd Corps which was under the command of Hadžihasanović. While the Trial Chamber had found that Hadžihasanović indeed had effective command and control over the El Mujahedin unit, the Appeals Chamber reversed this finding. Some of the Mujahedin were simultaneously members of the ABiH. Above all, the El Mujahedin detachment came de jure under the authority of Hadžihasanović. The Appeals Chamber, however, reaffirmed that de jure authority – in and of itself - does not axiomatically imply effective command and control: de jure or de facto authority are merely indicators helpful in determining whether a relationship including effective command and control exists. Thus, the Appeals Chamber concluded that while de jure or de facto authority justifies a prima facie assumption of effective command and control, the burden of proof beyond reasonable doubt that effective command and control exists remains with the Prosecution. Three distinct elements remain crucial in the establishment thereof:

1. The power to give orders and have them executed.

During trial, the Chamber relied heavily on numerous re-subordination orders concerning the El Mujahedin detachment in dealing with this initial criterion. Previously, re-subordination orders have been considered essential in other cases where the link needed to be established between separate units such as police units on the one side and military units on the other. However, the Appeals Chamber sets these orders aside as insufficient, arguing that some of these orders were not followed by the Mujahedin. Indeed, several incidental refusals were not considered a matter of internal disobedience but were taken as indicative of the independence of the Mujahedin.

2. The conduct of joint military operations.

Again the Appeals Chamber dismissed the way in which the Trial Chamber interpreted and applied this criterion. In essence, cooperation during military missions does not indicate effective control. Numerous joint missions were conducted and exhibits showed that the ABiH, in planning certain operations, counted on the engagement of the El Mujahedin detachment. In practice it seems that, however, the El Mujahedin unit often acted recklessly and beyond the requirements of the ABiH. Nevertheless, the Appeals Chamber applied a similar reasoning as regarding the first criterion and argued that such conduct illustrated the independence of the unit. Again, recalcitrant and excessive behavior, sometimes even resulting to outright hostility, was considered to indicate independence rather than turmoil within an otherwise cooperative, often mutually dependent and generally hierarchical constellation.

3. The absence of any other authority.

Finally, the Appeals Chamber made it clear that this third criterion was not to be seen as a tool through which, by way of elimination, effective command and control could be established. While the support of certain Sarajevo based state organs and high-ranking clergymen remained undisputed, the absence of real control by others was not sufficient to indicate effective command and control.

Consequently, Hadžihasanović was acquitted of any responsibility for the conduct of the Mujahedin or the failure to prevent and punish their activities – - even though the facts indisputably demonstrate that the ABiH 3rd Corps, at a minimum, coordinated with and relied on the Mujahedin in carrying out operations. The test itself, as fine-tuned throughout the case, seems not objectionable. However, it remains worrying that the Appeals Chamber in fact engaged in second-guessing the Trial Chamber’s discretionary assessment of adduced evidence, witness testimonies and in essence the facts, to the extent that it completely overturned the findings. Probably being aware of the heavy-handedness thereof and the arguable inconsistency regarding the application of the effective command and control criteria between the current and some previous judgments, the Appeals Chamber reiterated that the probative value of existing indicators will have to be assessed on a case-to-case basis; a part of the Appeals judgment which most likely will be endorsed by a majority of the former Yugoslav communities. Albeit, rather as a potential sign of bias than of judicial caution.

Sticking to alleged bias, from a procedural point of view, the Appeals Chamber devoted considerable attention to the claims made by the Hadžihasanović Defense that the Trial Chamber at times showed unacceptable signs of animosity and outright offensive behavior toward defense witnesses. Despite unusual generosity towards the Defense coming from the Trial Chamber in terms of time allocation and approval of witnesses, the Hadžihasanović Defense argued that on several occasions the Trial Chamber failed to use its discretionary power in a neutral manner. The Defense gave examples of the bench questioning, virtually cross-examining, a defense witness for eight hours (though the Defense was informed in advance), and treating several others in an intimidating manner. The Appeals Chamber dismissed these allegations. Leaving aside the accuracy of the Defense allegations and the Appeals Chamber’s findings, the current judgment clearly demonstrates an issue which remains intricate: the position of the bench in criminal proceedings before the ICTY. It reflects the uncertainty with which parties and witnesses are confronted in a legally hybrid system and institution, where the limits of the judges’ discretionary powers are determined mostly by their personal habits (considering that in an international legal institution, parties and judges to a large extent remain hostages of their original jurisdictions) instead of statutory standards. As long as the current scope of the judges’ discretionary powers is left undefined, the risk remains that despite assumed neutrality and benevolence, the conduct of judges throughout a specific case may at the end of the road be perceived as unfair and biased, consequently frustrating the process and ultimately compromising the legitimacy of the trial and its final outcome. This issue remains troublesome and continues to play a crucial role in ongoing proceedings before the ICTY.

Concluding, both substantive and procedural elements determine the way in which this latest ICTY judgment will be assessed in the following period. The reversals of the Appeals Chamber were accompanied with the lowering of already confounding and inconsequential sentences. Bearing in mind cases such as Halilović, Orić, Limaj et al. and Haradinaj et al., and in considering the final findings and sentences in light of the rank of both individuals as well as the factual underpinnings of the case, this de facto acquittal again leaves many with the question of how justice is done and whether it, when done in such a manner, furthers the individualization of guilt and strengthens reconciliation."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Wednesday, April 30, 2008

Restoring Pakistan's ousted judges: betrayal in the name of reconciliation
10:58 PM ET

Faisal Naseem Chaudhry [advocate, Lahore High Court, Lahore, Pakistan]: "In Pakistan's February 18 elections, the Pakistan Peoples Party (PPP) and Pakistan Muslim League (Nawaz), i.e. the PML (N), emerged as the two major parties in parliament respectively. On March 09 this year, both parties signed the six-point "Murree Declaration", the second point of which indicated that the judges ousted by President Musharraf under last November's proclamation of emergency rule shall be restored within 30 days of the formation of the Federal Government through a Parliamentary Resolution. The countdown to restoration commenced on March 30 when the Federal Cabinet took its oath of office, but the whole thing has proved to be a waste of time while the entire nation was glued to the tele-screens waiting for the promise to materialize. April 30th became part of history today but the deposed judges of Pakistan remain deposed. All credit for this goes to the gimmicks of Mr. Asif Ali Zardari (AAZ), the Co-Chairman of the PPP.

It is not that easy for Mr. Mian Nawaz Sharif (MNS) to step out of the coalition. This is why he may prefer to step out of Federal Cabinet (for face-saving) but shall continue to support the PPP Government. Becoming an opposition party in the National Assembly would authorize the PPP to use all fair and unfair means for toppling the PML (N) government in the Province of Punjab, the most important of the four provinces where the Chief Minister belongs to PML (N) and PPP holds some ministries. Ruling the province of Punjab, the most thickly populated and the most resourceful part of Pakistan, has been an unfulfilled dream of PPP for a long time.

AAZ has not only let down the deposed judges but most notably the lawyers headed by Aitzaz Ahsan, President of the Supreme Court Bar Association, who is also a Member of the PPP's Central Executive Committee. According to news items appearing on April 04, there had been an exchange of harsh words between Zardari and Ahsan (though Ahsan later termed it a mere conflict of opinion) to the extent that AAZ kind of threw a challenge to Ahsan daring him to go ahead with his 'Long March' pressing for restoration. AAZ intentionally did not implement the most important part of the Murree Declaration for the purpose of showing Ahsan that he, his lawyers, his deposed judges and his movement are not worth anything to the PPP.

A few days before the April 30th deadline, AAZ opened his mind with BBC and secondly with a GEO News Interview not only in respect of the proposed constitutional package rather also the person of ousted Chief Justice Chaudhry. Most Pakistanis have regarded it unfair that AAZ is ready to reconcile with every political force in Pakistan, even the MQM of Karachi which burnt alive a number of lawyers in Karachi a couple of weeks ago, yet maintains personal venom and vendetta against the person of Chief Justice Chaudhry. It is not the old memories of the BMW case before the Supreme Court, rather the National Reconciliation Ordinance (NRO) which is his point of concern.

When Benazir Bhutto (BB) was returning to Pakistan in the last quarter of 2007, President Musharraf promulgated the NRO (also regarded as National Humiliation Ordinance by some writers) chiefly to facilitate BB and AAZ in respect of their cases involving huge corruption and kick-backs. Chief Justice Chaudhry had issued an injunctive order against the Ordinance and then everything changed with November 3 Martial Law sugarcoated as Emergency. Mr. Dogar became the Chief Justice and favourable judgments pleased Zardari including one upholding the operation of NRO. Justice Dogar had been working as a Junior Associate of Mr. Qaim Ali Shah, the incumbent Chief Minister of Sindh who managed to have him recruited as Additional District Judge during the first tenure of BB (1986-1988).

Zardari feels comfortable with Justice Dogar, a man from the Province of Sindh where the Bhutto shrine is situated. If Justice Chaudhry becomes Chief Justice again with the same conventional judicial and administrative powers a Chief Justice enjoys, Zardari is apprehensive of the striking down of NRO which will again send him behind the bars or at least into exile. He does not want to take any chances particularly when it shall merely add more votes into the vote bank of Nawaz Sharif who contested the February 18 elections with the solemn pledge of reinstatement of deposed judges. Voters voted for PML (N) for the restoration of judiciary. For PPP, it was the blood of slain BB which resulted in a good harvest.

So AAZ wishes to either circumscribe the tenure of Chief Justice Chaudhry or curtail his unbridled administrative powers including the power to constitute a Bench of own choice, fixing cases of own choice. He also desires to retain the Judges who took oaths under the Provisional Constitution Order on Nov 3 last year and thereafter as fresh appointees. Anything short of this shall be ostensibly unacceptable to AAZ. Can he survive without the support of PML (N)? Certainly not only in Centre but in all the four provinces too. Only for Punjab, he shall have to put in little effort for a successful vote of no-confidence against the PML (N) Chief Minister. MNS is not likely to step out of coalition even for the sake of deposed judges. He will give more time to AAZ for the reinstatement yet where do the lawyers stand in this standoff?

A third round of talks between AAZ and MNS is going to take place tomorrow on May 01 in Dubai. Maybe by tomorrow evening a firm roadmap will be provided for the reinstatement through a simple majority resolution of the National Assembly, yet the point is simple. How can you trust this man whose ego is superior to a superior court?"

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Monday, April 28, 2008

Afghanistan's Guantánamo: unfair trials exported
9:37 PM ET

Sahr MuhammedAlly [senior associate, Law and Security program, Human Rights First]: "While pre-trial motions continue at Guantánamo Bay, Cuba, at other end of the globe in Afghanistan more than 60 former Guantánamo and Bagram detainees have been convicted based on little more than mere allegations by the United States. After years of detention in U.S. custody without any due process, these detainees, although now finally in some legal process, are being tried by the Afghans in violation of basic fair trial standards.

Earlier this year I was in Kabul, Afghanistan, to examine the prosecutions of former Guantánamo and Bagram detainees. Over 250 Afghans from Guantánamo and Bagram have been transferred since April 2007 to the American-built Afghan National Defense Facility (ANDF) in Pul-i-Charkhi prison in the outskirts of Kabul. Defendants are being tried under a Soviet-era Afghan national security law and are being charged with crimes ranging from destruction of government and private property to assisting enemy forces. Of the 160 persons referred for prosecutions, since October 2007 over 60 have been convicted, and more than 40 have been sentenced to imprisonment for up to 20 years. Trials last between 30 minutes and an hour. There are no prosecution witnesses at the proceedings, no out-of-court sworn prosecution witnesses, and little or no physical evidence is presented. [See Human Rights First, Arbitrary Justice: Trial of Bagram and Guantánamo Detainees in Afghanistan].

I personally observed two trials while I was in Kabul - each lasting around 30-35 minutes. The prosecutor stood up and read a statement of the charges and the evidence to support the charges. The evidence consisted simply of what the United States military had accused the defendant of doing, including a summary of the circumstances of capture, and what the Afghan intelligence agency - the National Directorate of Security (NDS) - had found, years after the capture, to support the allegations. The defense counsel then stood, denied the allegations, and repeatedly enquired as to the source and validity of "evidence" relied on by the prosecutor. Members of the three-panel judge then asked the defendant questions and one judge read from the dossier (evidence file). In one trial, a judge showed a photograph to the courtroom of captured ammunition that was allegedly linked to a defendant. There was no discussion of the type of ammunition, who found it, who is now in possession of those weapons, or how the ammunition was allegedly - if at all - linked to the defendant.

There were no witnesses at either proceeding. One defendant was sentenced to 8 years and the other to 10.

In one of the trials I observed, the defendant did not even speak Dari - the language of the court proceedings - but spoke Pushto (which, like Dari, is one of the two official national languages of Afghanistan), and repeatedly looked to his lawyer for translation assistance because the court provided no translator.

I was also able to examine the "evidence" the United States provided to the Afghans in these cases, and the results of the Afghan intelligence agency's own investigation. The U.S. evidence consisted of second-hand interrogation summaries; a two- to three-page form, which included a short description of the circumstances of arrest; and information about whether the detainee had undergone a polygraph test and the result of the test. There were no witness statements or even identification of government witnesses in these documents other than generically naming the detaining entities as Coalition Forces or Afghan National Army.

The Afghan intelligence agency documents included summary findings by the local NDS office where the alleged incident took place, and summarized incriminating statements about the detainee by unidentified witnesses. The NDS and national security prosecutor also interview every detainee and the answers to their questions were included as part of the dossier.

I asked a national security prosecutor about the quality of evidence, and he acknowledged that there are problems regarding the evidence, but he too was unable to get more from the United States. Still, he admitted, there is pressure from the United States to prosecute all the detainees.

A fundamental requirement of any fair criminal proceeding is that the defendant must be able to confront the evidence and question witnesses to the allegations. The former Bagram and Guantánamo detainees are completely denied of this right, in violation of both Afghan and international law.

The ANDF undoubtedly will continue to receive detainees in U.S. custody as more than 600 remain in Bagram and more than 30 Afghans are still in Guantánamo. But it is critical that, after years of confinement, any U.S. detainees transferred to Afghan custody who are charged with criminal violations of Afghan law have a fair adjudication of their cases. One way is for the Afghan government to demand from the United States names of witnesses to the allegations so that the prosecution can support any charges and the defense has the ability to mount a real defense. The United States, as the capturing and detaining power, should be willing make available witnesses for prosecutions.

The United States has made a policy decision to do just that in Iraq - where U.S. service members appear every day as witnesses in trials of suspected insurgents in the Central Criminal Court of Iraq. In Iraq the U.S. military trains soldiers and Marines in evidence collection and makes available soldiers for testimony in Iraqi trials of persons captured by the United States. The same principle should apply in Afghanistan.

The U.S. government's response to the findings of unfair trials has been to say that the trials are being conducted according to the Afghan justice system. These trials in fact are being conducted in contravention of the 2004 Afghan criminal procedure law, which on its face largely meets international fair trial standards. The United States is one of the largest donors supporting justice sector reform in Afghanistan and is involved in writing laws, training judges, prosecutors, and mentoring the Afghan Attorney General's office. But in the case of these trials the United States is actively complicit in pressuring the Afghan government to disregard its own law and fundamental due process standards. If these trials are evidence of how justice reform donor countries in Afghanistan work to foster the rule of law, the snail's pace of judicial reform in Afghanistan is regrettably more understandable.

Once U.S. detainees who are Afghan nationals are turned over to the Afghan government, Afghan courts should be allowed - and equipped - to fairly decide the outcome. The rule of law should be the goal here, not the rubber-stamping of U.S. allegations."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Pakistan must restore sacked judges without delay
10:50 AM ET

Ali Khan [Washburn University School of Law]: "Pakistan’s ruling Coalition has less than forty-eight hours left to fulfill their pre-election promise with the nation to restore the high court judges that General Musharraf fired by means of the 2007 Emergency Proclamation last November, an action contrary to the Constitution. The country's lawyers are likely to protest hard and refuse to cooperate with the new government if the Coalition fails to deliver the promise.

The Pakistan Peoples Party, the chief party of the Coalition, appears to be uncertain about the modalities of restoration even though it had previously agreed that the judges would be restored through a Parliamentary resolution followed by an executive order. Since the sacking of the judges was unconstitutional per se, the cumbersome constitutional procedures were deemed unnecessary for the restoration.

More pressing problems await the Coalition. The shortage of food items and electricity frustrates the common people on a daily basis. The court system is less than fully functional. The economy is sliding into non-performance. The national debt is high. Pervez Musharraf refuses to step down. The Attorney General who engineered the undermining of the Constitution is still in office. The Prime Minister should have fired the Attorney General right away, for his continued occupation of the highest law office is an affront to the supremacy of the Constitution. The Coalition must move fast on the primary logistics of cleaning the constitutional mess. If the Coalition fails to handle the relatively easier issue of the restoration of judges, it is unlikely to stand the pressures of solving the more serious problems."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Sunday, April 27, 2008

Reformist Muslims need legal protection from blasphemy accusations
12:31 PM ET

Farzana Hassan [president, Muslim Canadian Congress] and Tarek Fatah [founder, Muslim Canadian Congress]: "How long will it take the leadership of North America's traditional Muslim leadership to embrace the First amendment of the United Sates constitution and the doctrine of the separation of religion and state? Will the concept of freedom of expression survive ever-new challenges from the defenders of medieval traditions that bar any discussion or critique of religion?

These are questions bubbling below the surface right now, but eventually are bound to erupt into the open. Moreover, when they do, chances of a rise in overt racist backlash against Muslims of all shades and opinions is a likely outcome. Certainly, the events of the past few months provide ample evidence for this trend, with two human rights complaints making newspaper headlines and leading to fierce debates about the limits of free speech and what might constitute hate literature.

The first involved a human rights complaint against Ezra Levant, the editor of the defunct [Canadian magazine the] Western Standard, while the second, more recent one, was filed against Macleans magazine, by four Osgoode law students on behalf of the Canadian Islamic Congress. Needless to say, these complaints are justifiably interpreted as assaults on freedom of speech and conscience by Canadians both Muslim and non-Muslim, leading many to question the mandate of these commissions as well as the validity or otherwise of these human rights complaints.

Historically, orthodoxy has demanded abject compliance to the closed belief systems it guards. Therefore, the freedom to question, challenge, and evaluate dogma remains an elusive ideal for those who practice it, often at great risk to their lives and persons. Though in the West, "heresy" came to be accepted as valid religious expression in the seventeen hundreds in keeping with the first amendment; Muslim societies continue to be dogged by obscurantism and a stubborn resistance to modernity. Many a time, such intransigence results in lawsuits, human rights complaints and conspiracy theories against individuals perceived as threats to the status quo.

As an example, the United Nations Human Rights Commission (UNHRC) recently approved a resolution protecting religion from "defamation". Once again, the drivers of this move were Islamist organizations who refuse to tolerate the slightest dissent over religious matters. What these tyrants and monarchs from the Arab world fail to realize or choose to pretend otherwise is the fact that critics of Islamist ideologies are not opposing Islam as a religion, but the use of Islam as a political ideology that hides behind religion for protection, while seeking political ascendancy.

For Muslims who believe in challenging religious dogma, who actively pursue the goal of bringing about reform in Muslim societies and who advocate the separation of religion and state, this becomes a particularly threatening scenario as charges of blasphemy and apostasy often occasion calls for the execution of "apostates" and "heretics". A Turkish man recently convicted of "ridiculing god" faces the death penalty in a Saudi prison while secular and moderate Muslims living in the West are frequently the targets of death threats or bullying tactics to silence them one way or another.

The law in Canada and the United States must look into formulating legal measures that protect reformists within various faith traditions. In particular, given the serious consequences that secular and reformist Muslims face in their efforts to challenge orthodox positions, charges of apostasy and blasphemy leveled against them by fundamentalists should be criminalized as legal safeguards against such bullying and silencing tactics. The United States and Canada must look into introducing legislation that will protect such individuals from these accusations often laden with threats to their lives and security.

As long as Islamists around the world use Islam as a political ideology in the footsteps of such jihadi ideologues as Hassan Al-Banna, Syed Qutb, Abul Ala Maudoodi and Ayatollah Khomeini, their Muslim, and non-Muslim opponents will have the right to challenge this ideology with full vigour. Hiding behind the skirts of religion to avoid being critiqued, these fascist cults demonstrate not just cowardice, but a cunningness that is fooling large segments of the liberal-left intelligentsia in the West, which will be among the first to suffer if and when Islamists use liberal democracy to extinguish its light."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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