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That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )

That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.

That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.

I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.

Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.

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The Indian Newspapers report (Sunday TOI, p. 12) of the Obama Administration in the United States of America now doing away with the phrase ‘enemy combatant’; a designation for terror suspects to justify their detention in Guantanamo Bay.

After Hamdan v. Rumsfeld, the Military Commissions Act 2006 gave power to the Bush Administration to define an ‘unlawful enemy combatant’ and decide whether the laws of war as codified in the Geneva Conventions and existent in customary international law were applicable to such person or not. The Act also contained provisions removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status.

This idea of ‘unlawful enemy combatants’ was thus used as a justification to hold detainees in Guantanamo bay and to deny them access to habeas corpus. The United States Supreme Court has deliberated the legality of this notion in may case law. [See Boumediene v. Bush, 128 S. Ct. 2229 : Rasul v. Bush, 542 U.S. 466 (2004) ]

One of the promises of the Obama Campaign was to shut down Guantanamo Bay and rightly so, the moment he came to power he decided to shut down that ill fated detention centre within a given period. In In re: Guantanamo Bay Detainee Litigation, the Washington District Court is deliberating on the legality of such detention and the Obama Administration has recently filed a memo in that Court regarding its ‘new understanding’ of the situation in Guantanamo Bay. The memo now says;

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

 

Thus, in as much as the power to arbitrarily define as to who is an enemy combatant has been done away with, there is a fixed definition that has been incorporated in the Authorisation of the Use of Military Force (AUMF). But sadly, this however does not change anything for the prisoners in Guantanamo as the consequences of this change are futile and they shall still remain in Guantanamo. This because, in as much as they may now not be enemy combatants, they still may have ‘substantially supported’ forces engaged in hostilities with the United States. 

My point then being, that newspaper reports in India that there has been a substantial change in the outlook are wrong and a deeper analysis is required to comment upon it.

What is laudatory however is the commitment of the Administration that the laws of war would be applicable to all the detainees thus doing away with the earlier discretion of the Bush administration as to whether the laws of war would be applicable or not.

The entire memo submitted to the DC Court is available here. 

See also Obama admin. to end use of term ‘enemy combatant’ . 

 

Soli Sorabjee’s writ petition in the Supreme Court asking it to order the government to take measures to effectively deal with terrorism has created quite an interest amongst legal circles. Law and Other Things has detailed posts on it and Abhinav Chandrachud gives and interesting analysis on the ‘Right against Terror’ here.

I also have written here that the petition rests on the rationale that there is a Constitutional duty of the State to protect its citizens under Article 21; where as the Court earlier hasn’t stated any such duty.

In this post, I would like to explore another dimension to this writ. If the contentions in the writ be accepted then it is my opinion that it would have serious consequences on the way the government is run under the Constitution. My argument is that while judicial interference in legislative and executive functions already takes place, doing so in matters of policy and security of the State is warranted neither by the Constitution nor Constitutional law and doing so would belittle the idea of constitutional supremacy.

A reading of Article 355 would allow us to infer that it is the foremost duty of the central government to defend the borders of the Country. This also includes a duty to prevent any internal disturbance and maintain law and order. However, in as early as 1959, the Supreme Court in Memon Haji Ismail’s case held that declarations of war & matters concerning the defence of India are instances on which a Court cannot form any judgment. ‘defence of India’ could include both external aggression and internal disturbance. It could also be that they are to be considered as matters of policy and the Court cannot in any way tell the centre as to how the Government should be run.

Having established that the defence of the Country is exclusively in the realm of the Central Government, in State of Rajasthan v. Union of India, the Court held that it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted to the Constitution to other departments of the State which may be better equipped to perform them.

“Questions of political wisdom or executive policy only could not be subject to judicial control. So long as such policy operates in its own sphere, its operations are immune from judicial process.”

Thus, asking the Centre by a writ to better equip the police and forces with the latest weapons would be interfering into a realm exclusive to the executive.

But in my opinion, the starkest revelation to the dangers of what may happen have been put forth by Justice BN Shrikrishna’s article titled ‘Skinning the Cat’ (2005) 8 SCC (jour) 3 where in he says;

“I wish to point to a recent and disturbing trend of using the judiciary to second guess unambiguously legislative and executive powers. Indeed, our judges have succumbed to the temptation to interfere even with well- recognized executive powers such as treaty making and foreign relations. …

One Shudders to think whither this trend could lead- whether, for example, the constitutionality of a declaration of war or peace treaty (or matter concerning the defence of the Country) could also be questioned in a Court of law? If the courts were to strike down the peace treaty as being unconstitutional, would the armed forces be compelled to pursue the war under judicial mandamus?

Indeed my mind boggles at such eventualities, however improbable they may appear, given the new found enthusiasm for judicial activism in areas that are inarguable no pasaran (they shall not pass) for the judges”

Perhaps Justice Shrikrishna’s fears may just come true with this case.

 


Sarabnanda Sonowal v. Union of India, (2005) 5 SCC 665.

(1977) 3 SCC 592

 

 

Amidst all the hype and hoopla that surrounds Obama’s first days in Office, it maybe worthwhile to take a step back and evaluate the implications of the Bush Presidency. Seldom has the post-Cold War world seen such tectonic shifts in many matters of global concern. These eight years, starting right from the doorstep of the new millennium, have dictated our thought, outlook and course of action. From January 20, 2000 to 2009, the most powerful political position of responsibility today was held by a mercurial personality, who managed to emerge both as the most and least popular President of the United States of America. Whether you adored him (like the corporate and industrial lobbies of the US) or loathed him (pretty much like the rest of the World), you just could not ignore George Walker Bush Jr. Here’s our take on what the Bush Era has meant for tomorrow.

1. Iraq, Afghanistan, the Middle East and the War on Terror.

Within one year of his taking over the US Presidency, George Bush witnessed the first major terrorist attack on an American metropolis in decades. 9/11, hence immortalized through its suffering and consequence, was pivotal in influencing the Bush administration’s foreign policy outlook towards West Asia and the Middle East. Following the launch of a global ‘War on Terror’, a belligerent Bush pursued the Al-Qaeda to the footsteps of the Taleban. Months later, Afghanistan was left in tatters, besieged by the armies of the West in a futile attempt to capture the masterminds behind the WTO strikes.

The President then trained his guns further East, onto Iraq, where the ‘outrageous’ and ‘tyrannical’ regime of Saddam Hussein had allegedly held Weapons of Mass Destruction. Portraying Iraq to be a threat to the precarious stability of the Middle East, the US assumed the patriarchal role of a superpower to chastise the rogue nation. The extant situation in Iraq is left for everyone to see; while the US is fighting a trillion-dollar war, Iraqis are struggling to find a foothold on the world map.

As the Bush Presidency is all set to be a bygone era, the world has been left reeling from an increased spate of terrorist attacks, raising incisive questions of the efficacy of a costly ‘War’.

2. The Environment and Climate Change

As a presidential candidate, Bush began his campaign with a pledge to clean up power plants and reduce greenhouse gas emissions. During the initial months of his first Presidency, he even sought to commit billions of dollars to fund ‘clean-energy’ technology. The President also assured the Congress, environmental groups and the energy industry of his full co-operation to secure a reduction in emission rates within a reasonable period of time. However, his subsequent volte-face on the matter, terming greenhouse gas reduction to be adversely affecting energy prices, shocked the environment-conscious community.

The Bush Administration also refused to implement the substantive content of the Kyoto Protocol, stating that “ratifying the treaty would create economic setbacks in the U.S. and does not put enough pressure to limit emissions from developing nations”. After years of subservience to the powerful oil and energy lobbies, environmental surveys at the end of Bush’s tenure indicated a marked increase in the US’ contribution to global warming and sustained ecological recklessness.

3. Human Rights and Guantanamo.

Guantanamo merits a separate post. The connecting link will be uploaded in a day’s time.

4. The State of the Economy.

The fag end of George Bush’s stint as the President witnessed the implosion of the mighty US financial sector, triggering a global economic meltdown. A consequence of hasty and often unmonitored actions of the corporate lobby, the financial downturn meant a loss of jobs for millions of people around the world in professional services. The chain-reaction of such a collapse is yet to cease, and major banks and industries continue to be bailed out by the day.

While we may have to dig deep to find positive lessons from the Bush regime, it is suffice to say that the period is dead and gone. May the Bush Presidency rest in peace.

I was deeply moved to say the least after reading this article posted below. The Author is the editor of the Srilankan Sunday Leader and was shot dead. This article was published in the Guardian three days after his death.

This blog has been a believer in free speech and this article helps us in spreading that message.

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I HOPE MY MURDER WILL NOT BE SEEN AS A DEFEAT OF FREEDOM BUT AN INSPIRATION

Lasantha Wickrematunge

No other profession calls on its practitioners to lay down their lives for their art save the armed forces – and, in Sri Lanka, journalism. In the course of the last few years, the independent media have increasingly come under attack. Electronic and print institutions have been burned, bombed, sealed and coerced. Countless journalists have been harassed, threatened and killed. It has been my honour to belong to all those categories, and now especially the last.

I have been in the business of journalism a good long time. Indeed, 2009 will be the Sunday Leader’s 15th year. Many things have changed in Sri Lanka during that time, and it does not need me to tell you that the greater part of that change has been for the worse. We find ourselves in the midst of a civil war ruthlessly prosecuted by protagonists whose bloodlust knows no bounds. Terror, whether perpetrated by terrorists or the state, has become the order of the day. Indeed, murder has become the primary tool whereby the state seeks to control the organs of liberty. Today it is the journalists, tomorrow it will be the judges. For neither group have the risks ever been higher or the stakes lower.

Why then do we do it? I often wonder that. After all, I too am a husband, and the father of three wonderful children. I too have responsibilities and obligations that transcend my profession, be it the law or journalism. Is it worth the risk? Many people tell me it is not. Friends tell me to revert to the bar, and goodness knows it offers a better and safer livelihood.

Others, including political leaders on both sides, have at various times sought to induce me to take to politics, going so far as to offer me ministries of my choice. Diplomats, recognising the risk journalists face in Sri Lanka, have offered me safe passage and the right of residence in their countries.

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