[JURIST] The final results from the referendum on the draft Iraqi constitution [JURIST news archive] will be postponed until Friday at the earliest due to transportation delays and audits being performed because of voting inconsistencies in some provinces, according to officials from the Independent Electoral Commission of Iraq (IECI) [official website]. The audits were announced Monday in response to an unusually high number of “yes” votes [JURIST report] in certain regions. IECI officers must oversee the complicated audit processes, potentially causing further delay. Sunni Arab leaders, who opposed the draft constitution, have alleged that the vote was fixed in Ninevah and Diyala, two provinces with slight Sunni Arab majorities that only received about 20 percent “no” ballots. Since defeat of the charter in three of Iraq’s 18 provinces would veto it, the Sunnis needed either Ninevah or Diyala to join Salahuddin and Anbar, where preliminary results indicated defeat. AP has more.

[JURIST] Members of the Independent Inquiry Committee [official website] created to investigate the United Nations Oil-for-Food Programme [official website; JURIST news archive] discussed their findings and recommendations [official report] with the US Senate Foreign Relations Committee [official website] in testimony on Tuesday. The committee, formed in April 2004, investigated the program for more than a year before presenting its final report [JURIST report] in early September. Committee chairman Paul Volcker [Wikipedia profile] criticized the “culture of inaction” of UN leadership and recommending the creation of a chief operating officer at the UN. Some Senators and the US House of Representatives, which recently voted to decrease US funding of the UN if reforms are not enacted [JURIST report], are clamoring to withhold dues from the world body. Volcker said, however, that such action could create the perception that the US is “bulldozing the organization by very crude and difficult measures.” US UN Ambassador John Bolton, making his first appearance before the Foreign Relations Committee since his abortive confirmation hearings [JURIST report], took the same position in his own testimony to the senators, repeating views he articulated before a House committee {JURIST report] late last month. VOA has more.

[JURIST] A Chilean judge Tuesday asked that former president Augusto Pinochet [JURIST news archive; Wikipedia profile] be stripped of his immunity from prosecution on embezzlement charges. In his last action before joining the Chilean Supreme Court, Judge Sergio Munoz, who extensively investigated Pinochet for tax evasion and embezzlement, petitioned the Santiago Court of Appeals to force Pinochet to face charges related to approximately $27 million he held in offshore accounts; his defense insists the money derived from legitimate sources. The move would not be unprecedented as the Court of Appeals has already stripped Pinochet of immunity [JURIST report] from prosecution in several human rights cases, notwithstanding the tradition of according the to all former Chilean presidents. Pinochet, 89, who has so far avoided conviction due to mild dementia, underwent medical examinations [UPI report] on Tuesday to determine if he is fit to stand trial in the Operation Condor [Wikipedia backgrounder] human rights case. Reuters has more.

[JURIST] Khalil Dulaimi, defense lawyer for Saddam Hussein [JURIST news archive], announced Tuesday that he plans to ask the Iraqi Special Tribunal [official website; JURIST news archive] for an immediate three-month adjournment in the first trial against Hussein so the defense has an opportunity to fully prepare its case. Dulaimi said he was optimistic the court would grant his request. In the proceeding, scheduled to begin Wednesday, Hussein faces charges that he ordered the killing of nearly 150 Shia in the town of Dujail in 1982. This request for delay comes despite Iraqi Prime Minister Ibrahim Al-Jaafari on Monday lamenting any prospect of further delays in Hussein's trial [JURIST report]. AP has more.

[JURIST] UN Special Rapporteur on the Independence of Judges and Lawyers Leandro Despouy Tuesday expressed doubts about the fairness of Uzbekistan's ongoing trial of 15 alleged rebels [JURIST report] accused of precipitating the violent May uprising in the town of Andijan [JURIST news archive] that allegedly led to hundreds of casualties when government troops opened fire on protestors. Despouy has requested access to the defendants and to the courtroom, and noted that Uzbekistan has a history of torturing and mistreating detainees. The 15 men facing trial are among a group of 100 Uzbek citizens accused of participating in the alleged rebellion. If convicted, they will face the death penalty. Just last week in a report to the UN General Assembly, Despouy disparaged the fairness of the Iraqi Special Tribunal [JURIST report] trying former Iraqi leader Saddam Hussein. Reuters has more.

[JURIST] New York Times reporter Judith Miller [JURIST news archive], recently released from an 85-day prison term for contempt after refusing to testify about her sources to a grand jury investigating the Valerie Plame [JURIST news archive] leak, announced Tuesday that she would press for federal shield legislation. Speaking at a conference of the Society of Professional Journalists [profession website], Miller defended her decision to go to jail, arguing that that protecting sources is integral to effective journalism and the healthy operation of government. Miller plans to testify [official announcement] to this effect Wednesday before the US Senate Judiciary Committee. Sen. Richard Lugar [official website] has already introduced a Free Flow of Information Act, intended to clarify the law on the conditions under which individuals connected with the news media must disclose information provided to them by public officials. The Washington Post has more.

[JURIST] Geoffrey Nice, the lawyer prosecuting former Yugoslavian president Slobodan Milosevic [ICTY fact sheet] at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], on Tuesday voiced his concern that the trial against the deposed leader [JURIST news archive] will take another four to five years if the court continues to provide Milosevic with further extensions to present his case. Milosevic, who is leading his own defense, wishes to call nearly 200 witnesses for his defense case, and has requested an extension of 150 days to present his full defense. Milosevic's witness list includes many of the world leaders [JURIST report] who led the 1999 military action that knocked Milosevic out of power. Reuters has more.

[JURIST] A judge for the US District Court in Northern Georgia granted a temporary injunction Tuesday against the enforcement of a Georgia law [PDF text] that requires voters to show photo identification before casting a ballot. Georgia officials argued the rule, which the governor signed into law in April [JURIST report] was necessary to prevent voter fraud. Based on the same reasoning, the US Department of Justice approved the law [JURIST report] in August. DOJ approval is required under the 1965 Voting Rights Act [DOJ backgrounder] for all changes in voting requirements in states with a history of suppressing minority votes. Several rights groups filed a lawsuit [PDF complaint] challenging the law last month, and in a 123-page ruling [PDF text], District Judge Harold Murphy [FJC profile] issued the injunction based on a finding of substantial likelihood that the plaintiffs will succeed on their claims that the voter ID law functions like a poll tax, and goes beyond what is necessary to prevent voter fraud. AP has more. The Atlanta Journal-Constitution has local coverage.

Previously in JURIST's Paper Chase...

• Federal lawsuit filed against Georgia voter photo ID law
• Opponents of GA voter ID law to file federal lawsuit
• ACLU, Georgia spar over voter ID card fees
• Georgia voter ID law receives DOJ approval
• Georgia governor signs voter photo ID law

[JURIST] Iranian Justice Minister Jamal Karimirad announced Tuesday that his country has sent its own indictment [JURIST report] against former dictator Saddam Hussein [JURIST news archive] to the Iraqi government, charging the former dictator with atrocities allegedly committed during the eight-year Iran-Iraq war. The new charges come one day before Hussein is due to appear in Iraqi court to face the first of what could be many trials [JURIST news archive] for alleged crimes committed while in power. According to Karimirad, Iran's indictment includes charges of genocide, murders, crimes against humanity, violations of international law, bombings, as well as "violating Islamic and ethical principles." Iran first announced its desire to charge Hussein with crimes stemming from the Iran-Iraq war in July [JURIST report], and last month announced it was preparing its own indictment [JURIST report] against the former dictator. Aljazeera has more.

[JURIST] US Homeland Security Secretary Michael Chertoff promised Senators Tuesday that he would no longer allow non-Mexican immigrants who have entered the United States illegally to be released back into the US if they are apprehended. This so-called "catch and release" policy has allowed tens of thousands of non-Mexican illegal immigrants to remain within the United States. In prepared remarks [text] to the Senate Judiciary Committee [official website], Chertoff also said that President Bush remains committed preventing to all forms of illegal immigration [DHS statistics]. Chertoff told the committee that the administration is committed to gaining control of the border and enforcing workplace laws in order to prevent immigrants from obtaining unlawful employment in border states like Texas. Chertoff also argued that the proposed temporary worker program [White House backgrounder] is critical to the Homeland Security Department's success at controlling the border. AP has more.

[JURIST] Though the US Department of Justice (DOJ) [official site] is disappointed with Monday's denial of certiorari by the US Supreme Court in the damages aspect of its suit against the tobacco industry [JURIST news archive], US Attorney General Alberto Gonzales says that the administration "continue[s] to believe very strongly in [the] case." The high court refused the government's appeal [JURIST report; cert petition; PDF] of a federal appeals court decision [PDF text; JURIST report] that the Racketeer Influenced and Corrupt Organizations Act (RICO) [text] does not permit "backward-looking" remedies of disgorging illegally obtained proceeds. Instead, the appeals court said Congress intended RICO to apply to "forward-looking" orders that would prevent continuing or future violations, thus severely limiting the amount of possible damages in the case. The case went to trial [JURIST report] earlier this year, and a verdict has not yet been issued. US District Judge Gladys Kessler has urged the government and tobacco companies to settle the lawsuit [JURIST report], but organizations supporting the DOJ say the DOJ should not take the Supreme Court's denial of certiorari as an excuse to push for a "watered-down settlement." The DOJ has background material on the litigation. Altria, Philip Morris' parent company, offers its own case backgrounder and legal filings. AP has more.

[JURIST] A tax panel commissioned by President Bush endorsed on Tuesday an income tax system that would drastically simplify the way Americans file their taxes. However, the amount taxpayers pay under the proposed system would not significantly change from the current tax system. Members of the President’s Advisory Panel on Federal Tax Reform [official website] say the plan calls for the elimination of deductions, credits, and other tax breaks in favor of fewer and simpler tax benefits. Panel member and former Internal Revenue Service [official website] Commissioner Charles O. Rossotti called the simplifications, "a huge move" toward simplifying the tax system The panel's announcement comes one day after a spokesman for the Americans for Fair Taxation [advocacy website], a tax reform interest group, said that the panel would probably not recommend any major changes [JURIST report] to the tax code. The advisory group's final report will be released November 1. AP has more.

[JURIST] A ten-day old California law barring the sale of violent video games to minors is being challenged by trade groups associated with the entertainment industry. The Entertainment Software Association [group website] and the Video Software Dealers Association [group website] filed suit Monday seeking to enjoin enforcement of the law. The state law [text; JURIST report] bans the sale and rental to minors of violent games that are deemed especially heinous, atrocious or cruel, subjecting violators to a $1,000 fine. The industry groups argue that such laws are an unconstitutional infringement on First Amendment freedoms. Last year, a federal district court struck down [JURIST new report] similar legislation in Washington that banned the sale of violent video games to minors. Reuters has more.

[JURIST] US Supreme Court nominee Harriet Miers [JURIST news archive] Tuesday submitted her responses [PDF text] to written questions posed by the Senate Judiciary Committee [official website], revealing past support for a constitutional amendment banning abortions except when necessary to save the life of the mother. Responding to a 1989 survey [PDF text, with Miers' response] of Dallas city council candidates, Miers indicated that she would actively support ratification by the Texas Legislature of a "Human Life Amendment" to the US constitution. Miers also said she would oppose the use of public money for abortions and would use her influence to keep people with "pro-abortion" views off Texas health boards and commissions.

ALSO ON JURIST  Op-ed: Two Cheers for Harriet Miers | Op-ed: In Praise of Treachery: The Relevance of Prior Judicial Experience

Addressing how she would resolve any potential conflict of interest arising from her service in the Bush administration and as Bush's personal lawyer, Miers wrote that she would fully comply with ethical guidelines and the judicial code of conduct:

I would resolve any potential conflict of interest by abiding by both the spirit and the letter of the law. I would comply with the Ethics Reform Act of 1989, 28 U. S. C. Section 455, the Code of Conduct for United States Judges, and other applicable requirements. These proscriptions would provide needed direction concerning the recusals necessary as a result of my government service or previous representations as a private lawyer.

The role of the judiciary in our system of government is limited. While its role and its independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society's ills, and the independence of the courts provides no license for them to be free-wheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course. Courts are to be arbiters of disputes, not policy makers. As has been said many times, the role of the courts is to interpret law and not to make it. ...

"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling. ...

Judicial review by the Supreme Court, including determining the meaning of the Constitution and declaring unconstitutional the actions of another branch of government, is a tremendous power exercised by judges who are not accountable to the electorate. Because their power is so great, and because it is largely unchecked, judges must be vigilant in exercising their power in a humble, prudent, and limited way. The courts must always be ready to decide cases according to the Constitution and laws of the United States, and to do so fairly and without regard to the wealth or power of the litigants before them. But it is just as important for the courts to stand ready not to decide in instances that do not call for a decision.

Criticism of courts that overstep their role is justified. We must zealously guard, however, the independence of the courts. While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case. Judges are given life tenure and independence to shield them from the potential tyranny of the majority. While life tenure and independence should not be a license to usurp the rule of law in favor of a rule of man, they provide an essential structural protection to ensure that judges are able to make decisions based only on the fundamental vision of the Founders - the rule of law.

[JURIST] The Transparency International Corruption Perceptions Index [corruption index; press release] released Tuesday shows more than two-thirds of the 159 countries surveyed scored less than 5 on a scale of zero to ten, indicating serious levels of corruption. The index is a survey of business people and analysts and is widely watched in the international community, especially in the context of awarding foreign aid. Chad and Bangladesh were deemed the most corrupt nations in the world, while Finland, New Zealand, and Denmark consistently rank among the least corrupt. Africa was deemed the most corrupt continent [Reuters report], with 31 of 44 nations scoring less than three. Canada has seen a steady decline in rankings [Globe and Mail report], ranked 5th in the 1990's, dropping this year to 14th. Bloomberg has more.

[JURIST] Federal prosecutors in Manhattan filed the largest criminal tax case ever Monday against 19 defendants formerly employed by accounting firm KPMG [corporate website]. The revised indictment [PDF text] replaces an indictment [JURIST report] filed against 9 defendants in August and accuses 17 former KPMG executives, a lawyer, and an investment advisor, with attempting to defraud the IRS through fraudulent tax shelters, filing fraudulent individual income tax returns containing the tax shelter losses, and concealing the shelters from the IRS. Prosecutors believe that the shelters helped wealthy individuals avoid paying $2.5 billion in taxes. The indictment does not name any KPMG clients who purchased the shelters. In August, KPMG itself settled with federal prosecutors [JURIST report], avoiding an indictment by agreeing to pay a $456 million fee, accepting independent monitoring of its activities, and acknowledging their wrongdoing [KPMG press release, PDF]. The New York Times has more.

[JURIST] Canadian Justice Minister Irwin Cotler [official profile] presented a nine-member advisory committee [committee profiles; CA DOJ press release] Monday with the names of six potential candidates for the Supreme Court of Canada [official website]. Unlike the US system where politicians publicly question Supreme Court nominees, the Canadian candidates' names remain confidential to all except the nine members of the panel. The panel has until November 18th to reduce the list from six names to three, from which the Justice Minister will pick the final judge. If the group feels that an important name has been left off the list, they can make suggestions to the Justice Minister to add another name. The seat of the retiring judge is typically filled from someone from the same geographic part of the country. Since retiring Justice John Major [official profile] was from Alberta, his seat will be filled by someone from the Prairies or Northern region. A final decision is expected before Major retires in December. The Canadian Department of Justice has background on the nomination process. Canada's Globe and Mail has local coverage.

[JURIST] Iraqi Prime Minister Ibrahim al-Jaafari [BBC profile; JURIST news archive] complained to reporters Monday about the delay in bringing Saddam Hussein [JURIST news archive] to trial, but denied trying to encourage the Iraqi Special Tribunal JURIST [official website; news archive] to speed up its processes. Al-Jaafari said, "Any more delay will bring Iraq, the judiciary and the government into question. It's the right of every Iraqi citizen to ask why it took so long to prepare the Dujail case." This is not the first time al-Jaafari has pressed for the trial to get under way. In June, al-Jaafari expressed exasperation with tribunal judges [JURIST report], saying they had wasted time in their investigations. Hussein's trial for the 1982 Dujail massacre [JURIST report] begins Wednesday in Iraq's war crimes tribunal, now known as the Supreme Iraqi Criminal Tribunal; the court's name has been changed from the Iraqi Special Tribunal to avoid confusion with special security tribunals used to repress opposition during Hussein's regime. Officials decided to try the Dujail case first because it was less complex and required less investigation and fewer witnesses than some of the other possible charges against Hussein. Al-Jaafari also stated he was "not interfering in the court's business" or "trying to put pressure on the court or influence it." AP has more.

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[JURIST] The UN High Commissioner for Refugees [official website] has called on the government of Burundi to recognize more than 3,000 Rwandan refugees [JURIST report] as asylum seekers, allowing them to stay in the country. Since March, nearly 8,000 Rwandans, primarily Hutus, have fled their homes in fear of prosecution by grassroots gacaca courts [official website; Wikipedia backgrounder] which are trying suspects for their roles in Rwanda's 1994 genocide [JURIST news archive; BBC backgrounder]. The UNHCR's spokesperson in Burundi, Catherine-Lune Grayson, made the appeal before a Monday meeting between Burundi's Interior Minister Savator Ntacobamaze and Rwanda's local administration minister Protais Musoni. Grayson said, "They've been waiting months in precarious conditions ... a positive decision needs to be taken quickly." AFP has more.

[JURIST] The Israeli Supreme Court [official website] has authorized the construction of the West Bank security fence [official IDF website; Wikipedia backgrounder] across Palestinian land. Last month, the Court ruled that Israel had a right to construct the barrier to protect itself from potential terrorist attacks, but urged the rerouting of sections of the barrier [JURIST report] in those areas which do not pose heightened security concerns, to not impose undue hardship or violate the human rights of the Palestinians. The latest ruling honors the government's request to cancel a temporary injunction issued in June which blocked the construction of the barrier through Dahiyat al-Barid, an upscale Palestinian neighborhood, saying that the barrier would destroy several houses and yards. The Court's decision said that the Dahiyat al-Barid section was needed to close a "crucial security need." However, this ruling only refers to the temporary injunction and is therefore not necessarily the last word on the subject. The construction of the 425-mile barrier, scheduled to be finished in 2006 though 10 percent of the remainder is currently subject to legal challenges, is in opposition to an advisory opinion [text; JURIST report] from the International Court of Justice, which deemed the barrier to be illegal. AP has more.

[JURIST] Mississippi Governor Haley Barbour [official profile] Monday signed legislation to let the 13 hotel-casinos destroyed by Hurricane Katrina [JURIST report] to be rebuilt 800 feet inland, despite opposition from religious conservatives. The law was approved in a special legislative session [JURIST report] where the Mississippi Legislature [official website] convened to specifically work on the aftermath of the hurricane's devastation. The legislation was passed to provide safety for the casinos and provide jobs for displaced Mississippi workers, 14,000 of whom worked for the coast casinos prior to the hurricane. Mississippi legalized casinos in 1990, but under the Mississippi Gaming Control Act [text] the casinos were only allowed to be built on either the Mississippi River of the Gulf of Mexico. The new law, which will allow the casinos to be rebuilt as mega-resorts, will not affect river casinos. Some casino companies such as Harrah's Entertainment Inc. [corporate website] the world's largest gambling company, have already announced their plans to build a new hotel-casino. AP has more.

[JURIST] Officials from the Independent Electoral Commission of Iraq [official website] resumed counting ballots Tuesday as part of an effort to recheck an unusually high number of votes [JURIST report] in this weekend's referendum on the Iraqi constitution [JURIST news archive]. The recount had been disrupted by a sandstorm, but ballot boxes from 12 Shiite and Kurdish provinces are now back on their way to Baghdad. Early reports suggest that as many as 99 percent of Iraqi voters have approved the draft constitution and IECI head Adil al-Lami said Tuesday that the IECI was auditing the vote count where the numbers turned out to be higher or lower than expected. Rumors that the overwhelming majority have voted "yes" to the Constitution have led Sunni Arabs to make accusations of voter fraud, suggesting that the police took ballot boxes from heavily "no" districts and that "yes" districts had more votes than registered voters. AP has more.

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[JURIST] US Supreme Court nominee Harriet Miers [JURIST news archive; Washington Post profile] Tuesday will turn in her responses to a Senate Judiciary Committee [official website] questionnaire devised to reveal how she might rule on cases brought before the Supreme Court. In meetings with Senators following her nomination [JURIST report] to replace retiring Justice Sandra Day O'Connor, Miers has revealed that she believes the Constitution contains a right to privacy, but she stopped short of divulging her personal views on the 1973 ruling that established abortion rights, Roe v. Wade [text]. Many conservatives view the case as the prime example of the Supreme Court creating a constitutional right that does not otherwise exist. AP has more.

10:53 AM ET - Materials submitted to the Senate Judiciary Committee Tuesday indicate that Miers supported a 1989 push for a constitutional amendment that would ban abortions except when necessary to save the life of the mother. Miers' responses to Senate questions included a 1989 survey by Texans United for Life [advocacy website]. On that survey, Miers indicated that she would actively support ratification by the Texas Legislature of a "Human Life Amendment" to the US constitution. Miers also said she would oppose the use of public money for abortions and would use her influence to keep people with "pro-abortion" views off Texas health boards and commissions. AP has more.

ALSO ON JURIST  Op-ed: Two Cheers for Harriet Miers | Op-ed: In Praise of Treachery: The Relevance of Prior Judicial Experience