[Deathpenalty] death penalty news----worldwide
rhalperi at mail.smu.edu
Thu Oct 19 15:13:28 UTC 2006
Scheduled Hanging of Muslim Puts India in No-Win Situation----Whether it
executes or spares the life of a man convicted in the 2001 attack on
parliament, New Delhi will face negative consequences.
If the courts prevail, a hangman will loop a noose around the neck of one
of India's most notorious convicts at dawn Friday, and the saga of an
audacious crime involving acts of terrorism and threats of war will end at
But the scheduled execution of Mohammed Afzal is no simple affair. The
case has forced the Indian government to wrestle with competing demands
for justice, the specter of increased sectarian violence and the potential
for more upheaval at a delicate moment in India's adversarial relationship
The bearded, bespectacled Afzal was sentenced to die for his role in a
brazen attack on India's parliament in 2001, a shootout that killed 14
people, including five Kashmiri militants, here in the capital. India
blamed Pakistan for inciting and aiding the assailants, and the
nuclear-armed neighbors nearly went to war.
Since then, the archrivals have stepped back from the brink, engaging in a
fitful peace process that has led to small progress toward rapprochement.
At the same time, Afzal's case has wound its way to the top of India's
judicial system. Last year, the Supreme Court upheld his conviction as a
conspirator in the attack. The panel pronounced him deserving of the
ultimate punishment, despite acknowledging that his role was limited to
providing shelter, cellphones and transportation for the gunmen.
Since the court last month set his execution for Friday, protests have
flared both in support of and against the sentence. Critics say that
hanging Afzal will create an instant martyr for militants in the
Indian-controlled portion of Kashmir who want to unite that predominantly
Muslim area with Pakistan or create an independent homeland.
On the other side are those who say commuting the sentence to life
imprisonment would subvert the rule of law, thwarting the court's ruling
that society's "collective conscience . will only be satisfied" by the
death penalty in such a heinous case.
Afzal's wife has filed a clemency plea with Indian President A.P.J. Abdul
Kalam. But since his is a ceremonial post, the real decision lies with
Prime Minister Manmohan Singh's government, which finds itself with few
choices, none of them palatable.
"It is kind of a dilemma right now because every move is wrong," said Ajai
Sahni, executive director of the Institute for Conflict Management in New
"If you hang the man, the terrorists and their front organizations and
their supporters are going to whip up a frenzy, saying, 'Look at what has
been done - a Kashmiri Muslim has been hanged,' and they're going to try
to use it to exploit or mobilize more troops for their cause," Sahni said.
"If you don't hang the man, they're again going out in the streets in
celebration of the victory they have secured over the Indian state . and
so they'll use that as a recruiting tool."
Many analysts doubt Afzal will face the hangman's rope as scheduled.
Rather, the president's office may prolong consideration of the petition
for mercy, which would delay the execution until a decision was announced.
But that would merely postpone the debate, not resolve it.
The controversy comes at a sensitive juncture in relations between India
and Pakistan and in the dispute over Kashmir, the main bone of contention
between the countries, both of which claim the divided Himalayan region as
The two sides are due to resume talks in November after months of delay
brought on by the July bombings of commuter trains in Mumbai, which killed
about 200 people. Indian investigators accuse Pakistan's intelligence
agency of helping Kashmiri militants carry out the attacks.
Further unrest in Kashmir caused by Afzal's execution could complicate the
Also, Indian officials probably are loath to aggravate tensions in the
mountainous territory just when military commanders say that violence
there is waning somewhat - an assertion that some experts question.
"Violence levels have come down by 20%. There may be an odd incident of a
grenade thrown at one place or the other, but that can happen anywhere in
the world," Gen. J.J. Singh, chief of staff of the Indian army, told
reporters this week.
Farooq Abdullah, the former chief minister of India's Jammu and Kashmir
state, where Afzal is from, warned of an eruption of religious strife if
Afzal were to go to the gallows.
"You want to hang him? Go ahead and hang him.. This nation will go up in
flames, because the terrorists will do things which will destroy the
relationship of the Hindus and Muslims here," Abdullah told an Indian news
channel over the weekend.
In Srinagar, the summer capital of Jammu and Kashmir state, police
scuffled Monday with dozens of demonstrators protesting the execution
order and demanding freedom for Afzal.
Some human-rights organizations and legal activists say the death sentence
ought to be overturned on legal grounds, alleging that Afzal's trial was
marred by inadequate legal representation and that the evidence against
him was purely circumstantial.
The condemned man's wife, with their 7-year-old son in tow, also made
numerous public appeals in her husband's behalf.
But most agree that any reversal would be motivated by political concerns
- valid ones, according to columnist Karan Thapar of the Hindustan Times,
one of several newspapers that have argued for clemency for Afzal, though
for different reasons.
"Remember, we're not talking of a pardon but simply remission of a death
sentence into imprisonment for life," Thapar wrote in Sunday's edition.
"And, arguably, it's for the greater good of India."
(source: Los Angeles Times)
Death penalty has no place in a fallible system
In January 1989 Kehar Singh was hanged for his role in the assassination
of then prime minister Indira Gandhi. A number of questions were raised
about the inadequate evidence against him. One retired judge went as far
as to say that the evidence wasn't sufficient even to hang a dog. Many
other judges squirm when they remember that case. Unfortunately, with the
finality of the execution, dead men can't tell tales. But if we're willing
to listen, there's a lot their stories will tell us.
Over the last few months thousands of families in Britain were tendered
apologies by the government for the execution of their family members
during the two World Wars. Most were executed for mutiny; treason or
cowardice. But recent investigations found that they were unfairly
executed. In the US, 123 prisoners on death row were released in the last
two decades after evidence emerged of their innocence.
Back home, in well over a hundred cases, people sentenced to death by the
trial court and high court have either been acquitted or had their
sentence commuted by the Supreme Court which did not accept the lower
courts' appreciation of the evidence, found that the courts were negligent
or had wrongly ignored certain lapses in investigation and even unfairly
rejected defence arguments.
It's tempting to argue that such figures prove that the system works by
correcting the mistakes made. But such an argument overlooks the many
cases that were missed. Only a few mistakes come to light, especially in
India given the shoddy investigation, and rare use of DNA and other
forensic evidence. Rare review of the Supreme Court's decisions also means
that the mistakes made there rarely come to light. If our esteemed high
court judges can be wrong, how can we assume that the same judges, when
promoted to the Supreme Court, become infallible?
The case of Jeeta Singh in 1981 is one that did come to light and should
haunt our judges for a long time. Three persons were sentenced to death on
identical evidence. Jeeta Singh's appeal to the Supreme Court was rejected
and he was executed while co-accused Kashmira Singh's sentence was
commuted by another bench. Harbans Singh's appeal, review and even mercy
petition were rejected but he filed a last minute writ petition bringing
the inconsistencies to light.
The court noted that the case of Jeeta Singh had "a posthumous moral to
tell" - a moral that seems to have been forgotten thereafter. This case is
also not an exception. Based on a study of Supreme Court judgements in the
1970s, an Australian jurist, Anthony Blackshield, concluded that whether
or not the accused was sentenced to death depended largely on which
particular judges sat on the bench hearing the case.
To make matters worse, in Devinder Pal Bhullar's case in 2001, two judges
of the Supreme Court, taken in by the scourge of terrorism, sentenced him
to death, completely rejecting the senior-most judge's position that there
was no evidence to even convict, let alone hang Bhullar. This is only one
of a number of cases where judges on the bench have differed on the
quality of the evidence and yet the death penalty has been awarded.
Clearly someone in the Supreme Court is wrong - hardly an advertisement
for an infallible court.
Mohammad Afzal is yet alive. While his innocence or guilt may now be a
moot point, there are many unanswered questions about the attack on the
Indian parliament including the role of the Special Task Force. Doubts
also remain as to whether he had adequate opportunity to prove his
innocence during the trial.
One thread that runs through the cases discussed above is the 'special
circumstances' or the political context within which these trials were
conducted. The British executions took place in wartime; Kehar Singh's
execution emerged from the Indira Gandhi assassination; Maqbool Butt was
an "enemy agent" in Jammu and Kashmir; the 'judicial massacre' by a TADA
court sentencing 26 people to death was in the backdrop of the Rajiv
Gandhi assassination; Bhullar was a Khalistani.
The impossibility of a fair trial in such contexts and under special
legislation cannot be overstated. It is also at such times that a
frightened and angry public swings in favour of death sentences.
Prosecutors and courts often respond accordingly. Despite what they say,
judges do watch television and read newspapers and do get affected by
public opinion. Sounds far-fetched? Examine the impact the recent media
campaigns on the Jessica Lall and Mattoo cases have had on the hearings of
the appeals in the Delhi High Court.
Now remember the crowd chanting "Hang them, Hang them" outside the POTA
court hearing the parliament attack case. Try also to remember the
hostility and fear that accompanied the military build-up at the border
following the attack on parliament. Add to that an outrageous "confession"
made by Afzal to the media. This was the climate within which the trial
was conducted, a trial that, unsurprisingly, sentenced three people to
death including S.A.R. Geelani, a professor. Geelani was later exonerated
by the high court, which observed that the evidence "does not even
remotely ... point to the guilt of the accused".
It is also in the context of such a politically charged, high stakes case
that the issue of legal representation must be seen. It doesn't help by
saying that the quality of legal aid representation in our lower courts is
poor. That is well known. But this was no ordinary case. The attack on the
Indian parliament was historic in its sheer audacity and the government
was baying for blood. The prosecutors didn't rely on their regular staff
but instead appointed a Special Public Prosecutor, as is the wont in
Yet when it came to providing a defence lawyer, as the state is legally
bound to provide, only a junior lawyer could be found for Afzal because
none of the top lawyers he asked for were willing to represent him. When
legal aid becomes a mere formality to be observed, the fairness of the
trial too becomes doubtful. In Afzal's case it appears that the damage
done was irreparable, despite best efforts in the higher courts. That is
no surprise. Most criminal lawyers will wax eloquent on the difficulties
of remedying the damage in the trial court, relegating the quality of
legal representation in the higher courts to the margins.
None of this is an argument for providing prolonging the legal process.
Instead the argument is simple - the death sentence has no place in a
fallible system. Like every other human institution, our courts are
fallible and make mistakes. Investigation is often shoddy and corrupt,
scientific evidence is rare, witnesses are tutored, and threatened if
required. Courts too get carried away and play to the gallery.
The Supreme Court is no exception. While these are long-term problems that
need to be dealt with, there needs to be a moratorium on death sentences
to ensure that mistakes can be rectified. As for Afzal, the United
Progressive Alliance (UPA) government has the final say on the punishment.
The choice is clear: either listen and learn from the tales of the dead,
or respond to the shouts of the lynch mob.
(source: Telugu Portal; Bikram Jeet Batra is a New Delhi-based lawyer and
researcher on legal issues)
Singapore's judges sparing the rod
Singapore's legal system is renowned for harsh penalties such as caning
and the death penalty for some drug crimes, but judges are trying to
inject a dose of compassion into some rulings.
One beneficiary of the new trend is Ridzuan Mohamad Hanafi, a 20-year-old
Singaporean who faced at least five years in jail and five strokes of the
cane for trafficking in the synthetic drug Ecstasy. Instead, to his shock,
he was sentenced this month to two years' probation and 150 hours of
"The courts are ever more so willing to look at the spectrum of options
available to them to find what is best for each individual young
offender," said Wendell Wong, Ridzuan's defense counsel. He speculated
that the judge acted on a probation officer's report that said the
1st-time offender showed potential for rehabilitation. Prosecutors have
appealed the ruling.
The case reflects Singapore's efforts to tinker with strict policies and
rules that its leaders say are a hallmark of its success as one of the
most secure, modern places in Asia. They acknowledge the need for change,
though not at the pace that some international critics would like.
The new chief justice, Chan Sek Keong, wants to give judges more room to
use alternatives to harsh punishments, with the goal of rehabilitation in
mind. The government supports the changes.
"The current guidelines that have been put forward are outdated," said
Subhas Anandan, president of Singapore's Association of Criminal Lawyers.
"They do not give the judge alternatives," he said. "Everything is jail,
or jail plus caning. There must be alternative sentencing options like
community service, or probation, or probation with a lot of strings
attached to it."
Singapore's tough laws have sometimes triggered international anger, most
recently when a 25-year-old Vietnam-born Australian was executed for
heroin trafficking last year. The death penalty is mandatory for armed
robbery and some drug trafficking offences.
In 1994, an American teenager found guilty of vandalizing cars with
spray-paint, and was caned despite appeals for leniency by U.S. President
Singapore threatened to cane any violent protesters when it hosted the
annual meetings of the International Monetary Fund and the World Bank in
September. The gathering was peaceful.
Singapore was once an unruly place, particularly in the years leading up
to independence in 1965 and the early years of nationhood, when gang
violence was common and the Malay and Chinese communities sometimes
clashed. Authorities have kept crime low in the past few decades, and many
Singaporeans support tough justice.
The legal system is derived from British law, but Singapore has introduced
its own traditions. Trial by jury was abolished in the 1970s. Offenders
appealing for leniency have sometimes had their sentences increased.
The country still uses the colonial-era Internal Security Act, which
allows for arrest without charge and indefinite detention without trial.
However, some members of the al Qaeda-linked militant group Jemaah
Islamiyah were released after it was determined that they were responding
well to rehabilitation. Restrictions on free speech and assembly are among
the toughest in Asia.
Chan, the chief justice, says courts should place more emphasis on
rehabilitating criminals, as well as deterring them, and is reviewing
sentencing guidelines for serious crimes.
He has set up a special "community court" for certain offenses for which
judges may decide to impose probation, counseling and community service,
either in combination with or in place of jail, caning and fines.
The "community court" hears cases such as those involving 16- to
18-year-olds, people with mental disabilities, disputes among neighbors,
suicide attempts, family violence and animal cruelty.
"Concern has been expressed on our sentencing practices with respect to
consistency and proportionality," Chan said in April after he was
appointed to the post. "It is essential to maintain public confidence that
while the courts will continue with the policy of dealing firmly with
criminals, the punishments imposed should fit the crimes."
The Supreme Court said the chief justice did not speak to the media as a
matter of policy.
There is no sign that Singapore is going soft on crime, but judges already
appear to have deemed some offenders fit for rehabilitation.
In recent months, an 18-year-old girl was sentenced to 2 years' probation
instead of jail for multiple charges of counterfeiting currency, and a
woman's 33-month jail term for seven counts of credit card fraud was
reduced to probation.
(source: The Associated Press)
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