Some comments and questions on the recent DC Circuit op. in Lakhdar v. Bush -
1. Why examine habeas corpus as it stood in 1789? Originalism aside, as Justice Holmes put it, the framers of constitutions call into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. Courts are no strangers to imbuing FRs with new meanings and interpretations, whether found lurking in dark penumbral fringes or crafted out of thin air.
2. The opinion seems to commit the same error as the majority in ADM Jabalpur which regarded Art. 21 as the sole repository of all liberty and held it to be validly suspended.
3. Did the US Supreme Court accept a dangerous half measure by claiming habeas jurisdiction over only pending claims? Did it implicitly accept the statute’s denial of fresh cases in Hamdan?
4. It is a stretch to claim that the US does not exercise sovereignty over G'bay. It exercises at least as much sovereignty as it does over its embassy in India (which, incidentally, is also held on a permanent lease).
5. Is G'bay comparable with a US control (temp/permanent) over foreign territory? Admittedly grant of constitutional rights to all places where US forces temporarily exercise some measure of dominion could have unwieldy consequences.
6. The courts error lies in concluding that deprivation of habeas corpus does not offend the Suspension Clause. The dissent's approach of trying to distinguish individual rights as against legislative restraints is muddleheaded and unworkable. Its not surprising that most who have commented favourably on the dissent have maintained a studied silence on this aspect.
I'm beginning to understand why the Americans call it 'con' law.
Monday, March 19, 2007
Thursday, March 8, 2007
Privilege as to Longwinded Judgments
The Indian Supreme Court recently handed down its decision in Raja Ram Pal v. Union of India holding that parliamentary privileges were subject to judicial review. The case was concerned with the expulsion of MPs caught on tape accepting cash for raising questions in Parliament. They were expelled after Parliamentary Committees granted them a hearing and the power of expulsion was claimed as a privilege.
It has held that under our constitutional scheme the court has to decide the scope and extent of privileges, that the power to expel formed part of the House of Commons privileges at the commencement of the Constitution, that the power to expel did not stem from the fact that the House of Commons had the powers of a Court of Record (as colonial legislatures which were not formerly Courts of Record also enjoyed this power) or from the power to determine self composition and that the power of expulsion was duly exercised in the present case (on a substantive basis, as procedural irregularities would be protected by Art. 122).
Off the top of my head-
1. The power to expel, in some cases, could be treated as obtaining on the ground of necessity as an expression of the power to punish for contempt where the Court's jurisdiction were barred by Art. 122.
2. The Court referred to the Constitutional Assembly Debates relating to Art. 122 to hold it only barred review of procedural irregularities. The same debates could also be read as implying that the Framers considered that it was well established that no Court would attempt a substantive review and the prohibition on judicial review of procedural irregularities was inserted ex abundanti cautela (Francis Bennion has an interesting article on why reference to debates is inapposite at http://www.francisbennion.com/doc/fb/1993/003/hansard01.htm).
3. The judgement continues a proud legal tradition where prolixity and tediousness are considered the hallmarks of scholasticism and learnedness. Were 200+ (MS Word) pages really needed to say all that? The concurring judgment needlessly repeats entire paragraphs from the main judgment. Part of this can perhaps be attributed to the desire of an outgoing Chief Justice to leave his mark on the law through elaborate exposition.
It has held that under our constitutional scheme the court has to decide the scope and extent of privileges, that the power to expel formed part of the House of Commons privileges at the commencement of the Constitution, that the power to expel did not stem from the fact that the House of Commons had the powers of a Court of Record (as colonial legislatures which were not formerly Courts of Record also enjoyed this power) or from the power to determine self composition and that the power of expulsion was duly exercised in the present case (on a substantive basis, as procedural irregularities would be protected by Art. 122).
Off the top of my head-
1. The power to expel, in some cases, could be treated as obtaining on the ground of necessity as an expression of the power to punish for contempt where the Court's jurisdiction were barred by Art. 122.
2. The Court referred to the Constitutional Assembly Debates relating to Art. 122 to hold it only barred review of procedural irregularities. The same debates could also be read as implying that the Framers considered that it was well established that no Court would attempt a substantive review and the prohibition on judicial review of procedural irregularities was inserted ex abundanti cautela (Francis Bennion has an interesting article on why reference to debates is inapposite at http://www.francisbennion.com/doc/fb/1993/003/hansard01.htm).
3. The judgement continues a proud legal tradition where prolixity and tediousness are considered the hallmarks of scholasticism and learnedness. Were 200+ (MS Word) pages really needed to say all that? The concurring judgment needlessly repeats entire paragraphs from the main judgment. Part of this can perhaps be attributed to the desire of an outgoing Chief Justice to leave his mark on the law through elaborate exposition.
Wednesday, March 7, 2007
The Establishment Clause
The US Supreme Court just heard arguments in Hein v. Freedom From Religion Foundation (transcript available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-157.pdf). The case relates to whether individual taxpayers have standing to challenge executive expenditure which may contravene the Establishment Clause.
Some thoughts-
1. As noted on http://balkin.blogspot.com/ the entire line of precedents relating to this area seem to be horribly muddled, a fact admitted by both the Solicitor General and some of the Justices as is evident from the transcript of oral argument. It is strange that counsel for the Respondents wished to persevere despite some Judges clearly indicating that they thought that the precedents make no sense. An admission by both sides that this was the situation and an attempt to rationalise this particular branch of law may have been neater.
2. Justice Scalia came up with the interesting hypothetical of the President who addresses a religious gathering etc. and whether standing would be available to challenge expenditure made on the Secret Service and Air Force One etc. The answer of course is that the Constitution cannot require individuals appointed to public office to give up all individual beliefs and forsake the right to espouse those beliefs. All that it forbids is the official endorsement of these beliefs as decisive state ideology. Thus if the president were to say that he wants his fellow Americans to be good Christians because he is a good Christian he would not run afoul of the Establishment Clause. On the other hand if, speaking for the Government he were to imply that all other religions were heretical, a challenge could probably be mounted. Of course, in practice it is rather difficult to distinguish when the President acts in his personal capacity and his official capacity. I would err on the side of individual rights and allow challenges to all acts which hint at the State endorsement of personal beliefs.
3. In India, Art. 27 specifies that no person shall be compelled to pay taxes which are specifically appropriated for promoting or meeting the expenses of any religious denomination. In a Hein type situation where a committee is set up which decides, inter alia, to fund a particular religious denomination, there could be some debate as to whether there was specific appropriation. Reading Art. 27 and Art. 28 together it is clear that the intention is to prevent any State endorsement of a particular religion or religious belief. I would read the specific appropriation requirement as being satisfied as long as it could be shown that money was taken from the public coffers and allocated for the ends prohibited by Art. 27.
4. The breezy and informal style of argument in SCOTUS continues to startle and amuse me. It's hard to think of a single indian lawyer who would tell a Supreme Court judge that his dreamt up fact situation was "a horrible hypothetical".
P.S. I think 'God Save this Hon'ble Court' and 'One Nation under God' would be held violative of the Indian Constitution.
Some thoughts-
1. As noted on http://balkin.blogspot.com/ the entire line of precedents relating to this area seem to be horribly muddled, a fact admitted by both the Solicitor General and some of the Justices as is evident from the transcript of oral argument. It is strange that counsel for the Respondents wished to persevere despite some Judges clearly indicating that they thought that the precedents make no sense. An admission by both sides that this was the situation and an attempt to rationalise this particular branch of law may have been neater.
2. Justice Scalia came up with the interesting hypothetical of the President who addresses a religious gathering etc. and whether standing would be available to challenge expenditure made on the Secret Service and Air Force One etc. The answer of course is that the Constitution cannot require individuals appointed to public office to give up all individual beliefs and forsake the right to espouse those beliefs. All that it forbids is the official endorsement of these beliefs as decisive state ideology. Thus if the president were to say that he wants his fellow Americans to be good Christians because he is a good Christian he would not run afoul of the Establishment Clause. On the other hand if, speaking for the Government he were to imply that all other religions were heretical, a challenge could probably be mounted. Of course, in practice it is rather difficult to distinguish when the President acts in his personal capacity and his official capacity. I would err on the side of individual rights and allow challenges to all acts which hint at the State endorsement of personal beliefs.
3. In India, Art. 27 specifies that no person shall be compelled to pay taxes which are specifically appropriated for promoting or meeting the expenses of any religious denomination. In a Hein type situation where a committee is set up which decides, inter alia, to fund a particular religious denomination, there could be some debate as to whether there was specific appropriation. Reading Art. 27 and Art. 28 together it is clear that the intention is to prevent any State endorsement of a particular religion or religious belief. I would read the specific appropriation requirement as being satisfied as long as it could be shown that money was taken from the public coffers and allocated for the ends prohibited by Art. 27.
4. The breezy and informal style of argument in SCOTUS continues to startle and amuse me. It's hard to think of a single indian lawyer who would tell a Supreme Court judge that his dreamt up fact situation was "a horrible hypothetical".
P.S. I think 'God Save this Hon'ble Court' and 'One Nation under God' would be held violative of the Indian Constitution.
Subscribe to:
Posts (Atom)
