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Posted by Dr. Manzer Durrani in Law on August 11th, 2010
Circulation requested
Signed copy is attached
Citizens’ appeal to the Supreme Court.
Essential politicos’ record should be made public.
Once done, other groups should be included.
17 July 2010
Mr. Justice Iftikhar Muhammad Chaudhry
Honorable Chief Justice
Supreme Court of Pakistan.
An appeal by the citizens of Pakistan: Request to scrutinize the 5-years tax returns, declaration of assets and the foreign nationality of parliamentarians and the president
Your Honour,
Now that a large number of parliamentarians have been shown to have fake degrees, three other equally important aspects of our law makers need to be ascertained to ensure that the requirements of the Constitution are upheld. These are: (a) tax returns ; (b) full declaration of assets; and (c) the dual nationalities (Article 63C of the Constitution).
Like the fake degrees, the Election Commission also failed to scrutinize these three essential requirements. We therefore request the Supreme Court to order the Commission to scrutinize all Parliamentarian including the President for their past 5 years
Posted by Dr. Manzer Durrani in Law on July 1st, 2010
Gitmo detainees were exploited for intelligence
Pakistan-based political analyst Ali Kamran Chishti recently interviewed former Guantanamo Bay prison chief prosecutor Colonel Morris Davis.
Following is the transcript of the talk.
Ali Kamran Chishti: Tell us about yourself?
Colonel Morris Davis: I am 51 and grew up in Western Carolina in the US and attended college and law school there. I joined the US Air Force in 1983 and served there for 25 years as an attorney. I was Chief Prosecutor for the Military Commissions at Guantanamo Bay, Cuba from September 2005 to October 2007.
AKC: How many prosecutors worked at Gitmo?
Colonel: I was head of a multi-agency Prosecution Task Force (PTF) that fluctuated in size over time. When I resigned in October, 2007 there were about 110 people detailed to the PTF on a full or part-time basis including attorneys, paralegals, intelligence analysts, law enforcement agents and support personnel’s from the Department of Defense, Department of Justice, CIA, FIA and other federal agencies.
AKC: So what did you do as chief prosecutor and did you have direct access to detainees?
Colonel: Probably the best analogy is to the role of a head coach of a sports team. I assigned team members, monitored their progress, provided guidance on the their preparations, ensured they had the resources they needed and made sure everyone understood the rules and followed them. The law enforcement members of PTF (CIA, FBI etc) had more direct access to the detainees. The PTF did have access to the detainees, which was necessary in order to prepare cases for trial and we interviewed many of them in detail. I interviewed directly with the two detainees.
AKC: Great! So you had the prosecution team at Gitmo but did you have a defense team too?
Colonel: I believe an ample number of very capable and qualified defense attorney’s both military and civilians were and are committed to the defense effort. And I believe they did a fine job of keeping military commission process tied up in litigation in the federal courts for years ending up with the Supreme Court’s decision in Hamdam v Rumsfeld in June 2006 that ended the process created by President George Bush created by an executive order.
AKC: Okay! Now let’s talk about the Right’s which the Gitmo detainees never had. Apparently, President Bush did not give detainees protection under the Geneva Convention despite, Supreme Court’s ruling in “Hamdan v Rumsfed” which actually calls for a “minimal protection” to detainees (article 3 under Geneva Conventions) did people from “inside” disagreed to that?
Colonel: Yes, people disagreed with Geneva Conventions. If you haven’t already you might want to read Karen Greenbrg’s book, The Least Worst Place, which chronicles the first 100 days that Gitmo was in operation in early 2002. The military leadership, in absence of any other rules, fell back on their Geneva Convention training and the place operated I pretty humane manner at the outset. All of the Judges Advocate Generals, the senior uniformed attorney’s of each of the military services argued for application of the Geneva Conventions. Apparently, it was the civilians like David Addington, John Yoo, Alberto Gonzalez and Jim Haynes – a group referred to as “the big brains” – disagreed and had more clout. Secretary of Defense Rumsfeld was dissatisfied with the amount of information coming from the detainees and pressed to ratchet up the coercion to squeeze more intelligence from the detainees and the rest is history.
AKC: What were the legal standards used to put people in Guantanamo? The public has the impression that many innocent people were in there on the basis of rumors or malicious individuals. If no information was gained from them after a year or so, why were they kept for so long?
Colonel: I don’t know the precise process that resulted in most of the detainees going to Gitmo because that pre-dated my involvement in the military commissions. The only detainees sent to Gitmo during my tenure were 15 high value detainees that were transferred from the CIA black sites to DoD detention at Gitmo. Those were approved by President Bush. The customary laws of war permit detention of enemy combatants for the duration of hostilities. That authority is not dependent on whether they do or do not provide information. It is dependent on whether they pose a current or future threat to us or our allies.
AKC: Sir do you realise off all those years of establishment of Gitmo only three prisoners (David Hicks, Salim Hamdan and Ali Al-Bahlul) were convicted while 420 out of 775 were released without a charge? Why?
Colonel: Basically Gitmo was more of an “Intelligence Squeezing” center than a Jail.
AKC: Why were some people put in Guantanamo, others sent to secret detention sites in Europe, and others to Syria, Egypt etc for questioning? And some remained in Bagram, Afghanistan. Are these different categories of prisoners?
Colonel: Those sent to Gitmo were those believed to have intelligence value. People were not sent there to face prosecution, they were sent there to be exploited for intelligence.
AKC: Hmm
Posted by Dr. Manzer Durrani in Law on June 7th, 2010
Posted by Dr. Manzer Durrani in Law on April 7th, 2010
Posted by Dr. Manzer Durrani in Law on January 26th, 2010
Wednesday, January 27, 2010
ISLAMABAD: Some top constitutional experts, senior lawyers and former judges have been grossly misquoting the judgment in the Al-Jehad Trust case, also known as the judges’ case, to criticise the chief justice of Pakistan’s recommendations for the elevation of Justice Saqib Nisar as a SC judge and appointment of recently retired Justice Khalilur Rehman Ramday on ad hoc basis.
There is no mention in the 125-page Al-Jihad Trust case ruling that the chief justice of a high court must be elevated as a Supreme Court judge and that a judge junior to the provincial chief justice could not be promoted. Similarly, the case does not bar the appointment of ad hoc judges. It says that an ad hoc judge could not be appointed against a permanent post, which is not the case in the instance of Justice Ramday.
Regarding ad hoc judges in the apex court, the Al-Jihad ruling says: “That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.” Justice Ramday was not recommended for appointed as an ad hoc judge against a permanent seat that was falling vacant with his retirement on 12 January, 2010. The CJP recommended the appointment of Justice Saqib Nisar as a Supreme Court judge against the only permanent vacancy falling in lieu of Ramday’s retirement. The second part of the recommendation was regarding the appointment of Justice Ramday as an ad hoc judge. This recommendation was perfectly in line with Article 182 of the Constitution as well as the principles laid down by the Al-Jihad case ruling.
Neither the Constitution nor the Al-Jihad Trust case ruling sets any principle or rule whereby the chief justice is bound to recommend the appointment of a provincial chief justice as judge of the Supreme Court.
Many constitutional experts have been heard arguing that according to the Al-Jehad verdict, LHC Chief Justice Khawaja Sharif instead of Justice Saqib Nisar was to be recommended as judge of the Supreme Court. However, the Al-Jehad judgment does talk of legitimate expectancy of the senior most high court judge but it is for the appointment of the provincial chief justice. The relevant principle of the judgment reads: “That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to be appointed as such in the court concerned.”
For the interest of readers, some relevant excerpts of the Al-Jehad case verdict are being reproduced here: “The words ‘after consultation’ employed inter alia in articles 177 and 193 of the Constitution connote that the consultation should be effective, meaningful, purposive, consensus?oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the chief justice of Pakistan and the chief justice of a high court as to the fitness? and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the president/executive.”
“That if the president/executive appoints a candidate found to be unfit and unsuitable for judgeship by the chief justice of Pakistan and the chief justice of the high court concerned, it will not be a proper exercise of power under the relevant article of the Constitution.”
“That the permanent vacancies accruing in the offices of chief justices and judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.”
“That no ad hoc judge can be appointed in the Supreme Court while permanent vacancies exist.” “That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior judge of a high court has a legitimate expectancy to be considered for appointment as the chief justice and in the absence of any concrete and valid reasons to be recorded by the president/executive, he is entitled to be appointed as such in the court concerned.”
“That since consultation for the appointment/confirmation of a judge of a superior court by the president/executive with consultees mentioned in the relevant articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid.”
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