[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Aug. 26



IRAQ:

UN denounces death penalty in Iraqi Kurdistan----Recent executions break 7-year 
'informal moratorium' in autonomous Kurdish region


UN rights officials are denouncing the execution of a man and his 2 wives in 
Iraq's Kurdish region over the kidnapping and murder of 2 girls, saying they 
fear the self-ruled region may slide back toward use of the death penalty.

The Office of the High Commissioner for Human Rights said Tuesday that Farhad 
Jaafar Mahmood and wives Khuncha Hassan Ismaeil and Berivan Haider Karim were 
hanged Aug. 12 following convictions in April last year. Local officials said, 
however, the hangings took place Saturday. Rupert Colville, a spokesman for the 
OHCHR, said he could not immediately explain the discrepancy.

The UN opposes the death penalty. The human rights office said the 3 executions 
are the 1st under the Kurdish regional government since an "informal 
moratorium" was set up there in 2008. It said Iraq overall has executed more 
than 600 people since it reinstituted the death penalty in 2004 after the fall 
of dictator Saddam Hussein. Soran Omar, a Kurdish lawmaker, said the 3 executed 
had been arrested for kidnapping the two girls on separate occasions in 
November 2011 and October 2012 in the town of Zakho. The wives allegedly helped 
the man kidnapping the 2 girls and brought them to the city of Irbil. There the 
man raped the girls and killed them.

Under suspected pressure from local tribes and political leaders, Kurdish 
regional president Massoud Barzani signed the execution order despite 
previously refusing to do so. Omar said 205 people in the Kurdistan region are 
on a list to be executed, but Barzani has not given the final order in those 
cases.

(source: Associated Press)






INDIA:

A matter of penalty and death


It is desirable that the constitutional validity of death penalty be reviewed 
by a larger bench of the SC.

Controversy characterises the execution of death sentence in the Yakub Memon 
case considering the legal community was divided over the penalty. The Supreme 
Court has acknowledged that its earlier decisions in 13 cases to award the 
death sentence were a grave error of judgment.

The absence of legal procedure to determine whether the death sentence or life 
imprisonment is appropriate affords judicial decision makers discretionary 
power over people's lives. Therefore the lack of legal clarity gives scope for 
debate over death penalty.

In 2014, the Supreme Court commuted 15 convicts on death row into life 
imprisonment in the Shatrughan Chauhan case. It was held that the undue delay 
by the President to reject the mercy petition of a death row convict amounts to 
torture.

Further, it was lamented that such inordinate and unexplained delay by the 
President is sufficient in itself to entitle the convict to a commutation of 
death sentence. Here, the Apex Court had untenably stepped into the shoes of 
executive.

Similarly, in other cases, most death sentences have been pardoned either by 
the President or Governors/ Lt Governors of the states. Former president 
Pratibha Patil had granted a record 30 pardons in 28 months, of which 22 
related to brutal crimes. In 13 cases, the Supreme Court has held the death 
sentence to criminals have been awarded wrongly.

Invariably, terrorists and brutal killers are awarded the death penalty in the 
country. Other th-an the 1860 Indian Penal Code, there are 25 offences across 
different statutes like the 1950 Army Act/ Air Force Act/ 1956 Navy Act, 1987 
Commission of Sati (Prevention) Act; besides the 1985 Narcotic and Psychotropic 
Substances Act which are punishable by death sentence.

The Apex Court states that if a murder is "diabolically conceived and cruelly 
executed", it would justify the imposition of the death penalty on the 
murderer. The tools and manner of their use, horrendous nature of the crime, 
helpless victim, steal the heart of law for a stern sentence.

If the murder was pre-meditated and involves extreme brutality or exceptional 
depravity, it merits death penalty. Therefore, punishment by death ought not to 
be given - except in the rarest of rare cases when an alternative option is 
unquestionably foreclosed.

Invariably, terrorists and brutal killers have been awarded the death penalty 
in the country. While the SC has formulated guidelines to commute death 
sentence into life imprisonment, it may or may not be done on political 
compulsions.

When the President or the Governor commute death sentence on the advice of the 
Central or state government, there is no transparency underlying the decision 
to do so. Interestingly, the Supreme Court itself has the power to revoke death 
penalty which is based on criterion like age of the accused, the possibility of 
repentance, compulsion of circumstances and lack of adequate evidence.

>From 2001 to 2011, only 4 death convicts out of 1, 400 were hanged to death. 
Those were Auto Shankar [1995], Dhananjoy Chatterjee [2004], Ajmal Kasab [2012] 
and Afzal Guru [2013]. Even the Rajiv Gandhi assassins who were on death row 
got their sentences commuted to life imprisonment. Both Priyanka and Rahul 
Gandhi advocated the need to pardon their father's killers.

UN Resolution

The UN General Assembly adopted a Resolution in December, 2007 to prohibit 
death penalty to promote humanism which speaks volumes about this barbaric 
practice. Similarly, Justice P N Bhagwati has opined against the award of death 
penalty in 1980 in the Bachan Singh case.

After the Bachan Singh case, the constitutional validity of the death sentence 
itself was never reviewed by a larger bench of SC judges. It is desirable that 
the constitutional validity of death penalty must be reviewed by a larger bench 
of the SC.

However, the Indian Penal Code retains death penalty because gruesome capital 
offences must be treated seriously and only execution deters potential 
offenders. The 1967 Law Commission of India report and the Apex Court 
judgements acknowledged that death penalty serves as a deterrent.

However, sometimes, offenders are able wriggle out of capital punishment 
through legal presumptions of innocence owing to the benefit of doubt in their 
favour. To that extent, there is no certainty of capital punishment given the 
ambiguity in procedural law.

Today District & Sessions judges decide whether death penalty should be awarded 
or not which is thereafter reviewed by High Court and may be contested at the 
SC. To that extent, the superior courts only interp-ret the law, while the 
critical job to obtain evidence related to the case is undertaken at the 
district level where the highest standards of professionalism may not 
necessarily be prevalent.

Therefore, the need to establish special courts headed by experienced High 
Court and Supreme Court judges post-retirement to decide on capital offences.

(source: Mohan Bolla; The writer is Professor, School of Law, Christ 
University, Bengaluru----Deccan Herald)

******************

Why we need to abolish the death penalty----More than 160 nations, Member 
States of the UN, have either abolished capital punishment or do not practise 
it. The death penalty has no place in the 21st century, especially in a 
civilised democracy. Why does India still insist on depriving its citizens of 
the fundamental right to life?


What says the law? You will not kill. How does it say it? By killing!" As 
Albert Camus says, capital punishment is perhaps the "most premeditated of 
murders." Victor Hugo, in his condemnation of capital punishment, has perhaps 
best illustrated this fundamental dichotomy, underlying the imposition of death 
penalty in a civilised democracy. Taking of life, even when backed by legal 
process, is too absolute, too irreversible, for 1 human being to inflict on 
another. Echoing Hugo???s sentiments, the United Nations Secretary-General Ban 
Ki-Moon categorically stated that "the death penalty has no place in the 21st 
century."

The UN Special Rapporteurs on judicial executions and torture, Christof Heyns 
and Juan Mendez, asserted that there is "no proof" that the death penalty has a 
deterrent effect, and many executions have resulted in "degrading spectacles." 
Therefore, wisdom prevailed with the global community where more than 160 
Members States of the UN, with a variety of legal systems, traditions, cultures 
and religious backgrounds, have either abolished the death penalty or do not 
practise it. Why does India, an admittedly democratic republic, still insist in 
depriving its citizens of their fundamental right to life, as exemplified by 
the execution of Yakub Memon?

Yakub was convicted of "criminal conspiracy to carry out terrorist act" in the 
devastating Mumbai blasts, where thousands of families lost their loved ones.

The Indian judicial response to Mumbai blasts culminated in the Supreme Court's 
unprecedented early morning hearing on July 30. The Court in this hearing 
rejected Yakub's application seeking suspension of his execution and reaffirmed 
his death sentence. Yakub's execution compels India as people to revisit the 
issue whether death penalty is sustainable in a modern democracy. In 1980, the 
Supreme Court of India, in Bachan Singh vs. Union of India, observed that, "the 
normal rule is that the offence of murder shall be punished with the sentence 
of life imprisonment. The court can depart from that rule and impose the 
sentence of death only if there are special reasons for doing so. Such reasons 
must be recorded in writing before imposing the death sentence."

The Supreme Court further also acknowledged that this requirement of "special 
reasons" was very loose and would allow courts to impose the death penalty in 
an arbitrary and whimsical manner. The Court, however, declined to list crimes 
that may fall in this category.

Paradoxically, however, this doctrine has enabled judges to impose death 
sentences in an arbitrary manner, reinforcing the deeply flawed character of 
capital punishment in India today. Perturbed by the numerous flawed, judicially 
sanctioned, executions, 14 eminent retired judges wrote to the President in 
2012, pointing out that the Supreme Court had erroneously given the death 
penalty to 15 people since 1996, of whom 2 were hanged. The judges called this 
"the gravest known miscarriage of justice in the history of crime and 
punishment in independent India."

Former President late Abdul Kalam, acknowledged that one of his most difficult 
tasks during his tenure, was deciding who deserved mercy or capital punishment. 
According to a study conducted during his tenure at Rashtrapati Bhavan, all 
pending cases of capital punishment had a socio-economic bias; the death 
penalty was mostly given to the poor.

India's argument for death penalty is based on an assumption that its 
continuance prevents crimes of similar or serious nature, by instilling fear. 
There is no credible empirical evidence to show that death penalty acts as a 
deterrence, as noted in a UN resolution, adopted by the UN General Assembly in 
2012. The lack of such deterrence is further demonstrated by the fact that the 
UN International Criminal Tribunals for former Yugoslavia (a region where more 
than 150,000 people died and about 4 million were displaced) and Rwanda (a 
country where about 1 million people died and 2 million were displaced), 
followed by the International Criminal Court, have not included death penalty 
as a mode of punishment. Even though these judicial institutions adjudicate on 
the most devastating and brutal crimes such as genocide, crimes against 
humanity, rape, and war crimes. India's legislative and judicial framework 
still resorts to this brutal punishment.

Insistence on retaining death penalty will cloud India's emerging clout in the 
global context - in which India harbours lofty global aspirations. It is way 
behind other countries in key current legal and moral trends on justice-related 
issues.

For example, the UN Moratorium on Death Penalty (last affirmed in 2012) notes 
that in a country like India, where trials are lengthy and decades may pass 
before actual execution of the verdict, those who await execution have died a 
thousand times already because of their anticipation of the final horror.

Similarly, in its 2012 Universal Periodic Review of India, the UN Human Rights 
Council recommended that India establish an official moratorium on executions 
and move towards abolishing the death penalty. The Council also recommended 
that India commute all death sentences into life imprisonment terms. However, 
India did not accept any recommendations regarding the death penalty, or abide 
by any international moratorium or resolution that requires it to eradicate 
death penalty from its legal order.

An outdated argument by India is that each nation has a "sovereign right" to 
determine its legal system, and to punish criminals according to its laws. This 
is grounded in a false assumption that such a right is absolute. By 
participating in a global legal system, ratifying treaties and submitting 
itself for global monitoring, India's "sovereign right" is fundamentally 
tempered. While this argument may sound politically impeccable in a national 
context for populist reasons; it displays blatant ignorance of a growing 
globaltrend towards the abolition of the death penalty. Unsurprisingly enough, 
in 2014, India, along with 37 other countries, voted against a UN General 
Assembly resolution calling for moratorium on death penalty. India aligned with 
Afghanistan, China, Iran, Iraq, North Korea, Pakistan, Saudi Arabia, Sudan, 
Syria, the USA. and Zimbabwe. An overwhelming majority of 117 countries 
supported the moratorium. Despite facing internal volatility, Algeria, Bahrain, 
Bosnia, Croatia, Israel, Myanmar, Rwanda, Serbia, Somalia, Tonga and Uganda 
joined the European Union in supporting the moratorium on death penalty. Some 
of these countries, that have undergone incessant war, genocide, mass rapes, 
sexual violence, and other forms of brutal crimes, at a much larger scale than 
India, have rejected the use death penalty. This display of solidarity for 
humanity, irrespective of geopolitical considerations, sends a powerful moral 
message to countries like India, which are still clinging to capital 
punishment. It is time to turn away from vengeance disguised as deterring 
punishment.

India's stance should not be defined by the actions or beliefs of the accused, 
but by the resilience of the human spirit, and diversity of civilisations of 
this land, where compassion for all is the foundation of the edifice of 
progress. A Private Member's Bill for the abolition of death penalty by MP 
Kanimozhi is on the anvil. Under its objectives, capital punishment has been 
termed as "irreversible in a justice system susceptible to human failure", 
"unjust" and "inhuman". At the essence of all deliberations on death penalty, 
lies a fundamental question, as asked by Helen Prejean: "The important question 
is not, 'Do they deserve to die?' but 'Do we deserve to kill them?'"

(source: Commentary; Gurdhyan Singh, former UN investigator in Yugoslavia & 
Rwanda, is Founder Executive Director of Global Justice Academy. Aratrika 
Choudhuri, is a IInd-year law student at West Bengal National University of 
Juridicial Sciences & Director Projects, Global Justice Academy. Views are 
personal----tribuneindia.com)