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Last month, Justice John Paul Stevens passed away at the age of 99. He was appointed to the US Supreme Court in 1975 by President Ford who succeeded President Nixon after he resigned in the aftermath of the Watergate scandal. He held office for nearly 35 years and retired at the age of 90 in 2010.
In a moving obituary, Time magazine noted that Justice Stevens was known for being unfailingly courteous – to his clerks, his colleagues and the lawyers who came before him, often asking them politely if he could interject with questions in oral arguments. But beyond this courteous exterior was a strong judge who defended human liberty despite popular opinion to the contrary.
In 2004, he delivered the majority opinion in Rasul v Bush (2004) SCC Online US SC 65. Several innocent Australians and Kuwaitis had been captured and detained in Guantanamo Bay. Initially, the District Court dismissed petitions filed by detainees on the ground that Guantanamo Bay was outside the territory of the United States and there was no remedy for aliens in military custody. Justice Stevens pointed out that the Guantanamo Bay had been leased from Cuba and the United States of America had complete jurisdiction and control over the naval base situated there. Therefore, the District Courts had the jurisdiction to consider the claims of the detainees on merits. The cases were remanded to the District Courts.
In 2006, he delivered a majority judgment in an even more important case: Hamdan v Rumsfeld 548 U.S. 537. Salim Ahmed Hamdan was a citizen of Yemen and had been formerly employed as the chauffeur of Osama Bin Laden. He was also imprisoned in Guantanamo Bay and charged with providing material support for terrorist activities. The Military Commission, a tribunal, declared him as an enemy combatant. The District Court allowed Hamdan’s Habeas petition directing that he must first be given a hearing to decide whether he was a prisoner of war under the Geneva Convention before he could be tried by the Military Commission. This ruling was reversed in the Circuit Court of Appeals for the District of Columbia which held that the Geneva Convention could not be applied in Federal Courts and that the establishment of the Military Commission as a Tribunal was valid and constitutional.
Once again, Justice Stevens stood up for human rights and ruled that the Military Commission was not expressly authorized by any act of Congress and that its constitution, its structure and procedures violated the Uniform Code for Military Justice (UCMJ) as well as four Geneva Conventions that were signed in 1949. He categorically held that the provisions of the Geneva Convention were enforceable in the Federal Courts and that any Military Tribunal was bound to comply not only with ordinary municipal laws but also the laws of war. He declared that the trial of Hamdan was illegal. In this 5-to-3 decision, Justices Stevens, Kennedy, Souter, Ginsburg and Breyer were in the majority while Justices Scalia, Thomas, and Alito dissented.
Above all, history will always remember Justice Stevens for his stunning dissent in the controversial Bush v Gore 531 U.S. 98. The majority, by 7-to-2, held that the ruling of the Supreme Court of Florida that directed recounting of certain votes was unconstitutional and that, because of procedural difficulties, no constitutional recount was permissible. Few rulings have been more bitterly criticized than this majority verdict. The following passage in his dissenting opinion must serve as a constant reminder that, in the end, it is the judiciary that has to earn and command the respect of the people.
“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
May his soul rest in peace.
The author is a Senior Advocate of the Madras High Court and Supreme Court of India