[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

May 26



EGYPT:

Arab Sharkas executions in Egypt: Justice or revenge?



On May 19, the Egyptian Court of Administrative Judiciary was scheduled to look 
into a lawsuit that demands annulling the death sentence handed to 6 young men 
on charges of carrying out terrorist attacks in the case known as Arab Sharkas. 
On May 17, the same 6 were executed by the Military Court, which issued the 
initial sentence.

The heated debates following the executions were different from others commonly 
associated with this type of trial, such as how politicized the verdict might 
be, the culpability of the defendants, or the referral of civilians to military 
courts. The controversy revolved around what was specifically unique about this 
case: the speed with which the executions were carried out, and the reasons for 
not waiting for the result of the lawsuit contesting the verdict.

Lawyer Fatma Serag sees the lawsuit filed with the administrative judiciary as 
"the only available window for appealing the Military Court's verdict and 
putting the death sentence on hold." Serag said the decision to execute the 
defendants broke all the rules that have always been observed in such cases.

"There's always a long time, usually years, separating the issuance and 
implementation of a death sentence, even when the verdict is final," she said. 
"The Prisons' Authority does that in order to give the chance for new evidence 
to emerge, and which may lead to postponing or annulling the verdict. Why was 
this verdict in particular carried out that quickly?"

Mohamed Adel, head of the Litigation Unit at the Egyptian Center for Economic 
and Political Rights, said he had the answer to Serag's question. "The 
execution was carried out 2 days before the hearing of the other lawsuit to 
close any door to a verdict that might postpone the execution," Adel said. He 
added that even when a death sentence becomes final, it has to take a turn on 
death row, which means it waits until earlier death sentences are carried out.

"This usually takes at least 6 months. In this case, only two months had passed 
since the verdict became final," he said, referring to the Military Court's 
rejection of the appeal in March. Adel said the defendants were deprived of 
their legal rights when they were executed that fast. "According to the law, 
families of the defendants have to be notified of the time of the execution, 
and defendants should be allowed final visits."

Mahmoud Salmani, a member of the movement "No to the Military Trial of 
Civilians," saw the execution as an indication of the main problem inherent in 
the idea of military judiciary, since its very presence violates the principle 
of the separation of powers.

"Judges in the Military Court are appointed by the head of the Military 
Judiciary Authority. This authority reports to the minister of defense who, in 
turn, is affiliated to the executive power," he said. "This means that the 
military judiciary isn't independent."

A Human Rights Watch report voiced the same concern and demanded, weeks before 
the execution, that the defendants be retried before a civilian court. "Egypt's 
military courts, whose judges are serving military officers, are neither 
independent nor impartial, but in October 2014 President Abdel Fattah al-Sisi 
increased their powers to try civilians by expanding their jurisdiction over 
any crimes that occur on state or public property," said the report.

Criminal sciences expert General Refaat Abdel Hamid said in the case of 
defendants facing trial before two courts, the court that issues the 1st 
sentence has the right to carry it out. "This applies to the death penalty and 
to cases where one court is civilian and the other military," he said. "In case 
of execution, the 2nd pending trial is automatically dropped."

Ahmed Helmi, a member of the defendants' defense team, agreed with Abdel Hamid. 
"Filing a lawsuit against the verdict doesn't oblige the Prisons Authority to 
postpone carrying out this verdict," he said. "When the Military Court rejected 
the appeal, the verdict became enforceable and filing a lawsuit with an 
administrative court wouldn't stop it. The only exception would be if the 
administrative court accepts the case."

Professor of criminal law Mahmoud Kobeish blamed the administrative judiciary 
for not treating the matter with more urgency. "The administrative court 
should've set an earlier date for looking into the case to guarantee that the 
execution could be put on hold," he said.

Analysts who supported the execution of the verdict expressed their concern 
over the reaction of the militant group to which the defendants reportedly 
belong, namely Ansar Beit al-Maqdes. "The group will do its best to prove its 
existence, and to convince Egyptians and the international community that the 
verdict was politicized," said political writer Gamal Asaad.

"That's why the Ministry of Interior declared a state of emergency right after 
the executions were carried out." Asaad also expected that several countries 
and human rights organizations that have opposed the ouster of the Muslim 
Brotherhood would condemn the executions.

Revenge

Professor of political science Tarek Fahmy said the revenge of militants has 
become more immediate than expected. "This was made very clear when 3 judges 
were assassinated in Sinai on the same day [former President Mohammed] Mursi 
and several Brotherhood leaders received a death sentence."

The link between the executions and the killing of the judges took the 
controversy to a different level, as it was debated whether the decision to 
hasten the execution was aimed at avenging the judges. Hesham al-Mayani said 
what was more serious than whether the executions were fair is for the state to 
become party to a feud with militants and to allow this to impact its 
decisions.

"It is obvious that members of the Arab Sharkas cell were not scheduled to be 
executed on that day, especially that the state had enough on its plate with 
the strong reactions the latest death sentences against Mursi and Brotherhood 
members brought about on both the domestic and international levels," he wrote. 
"This changed when the judges were killed."

Mayani said he did not object to the verdict but rather to the timing, since it 
demonstrated that militants have succeeded in dragging the state into a cycle 
of revenge. "We will be fooling ourselves if we believe that the judges are now 
avenged because all what the state did was punishing terrorists it already had 
under its control for a crime committed by other terrorists," he said. 
"Punishment for each crime should target those who committed this crime. We 
cannot assume that punishing another criminal would stop the criminals who are 
still at large."

Security experts, however, see fast executions as the way to speed up the 
elimination of terrorist cells. "It's important to get rid of members of those 
cells as fast as possible so that Egypt can regain its security," said 
strategic expert General Hamdi Bekheet. "Executions should be accompanied by a 
series of clampdowns on those terrorists in their strongholds."

Military expert General Talaat Mussallam disagreed with speculation about an 
increase in terrorist operations following the execution: "Militants strike 
whenever they get the chance, regardless of death sentences their 
fellow-militants receive."

For Mussallam, the assassination of the judges illustrates the growing danger 
of militant groups, and which necessitates their immediate elimination. 
"Militants were targeting army and police officers; now they've added judges."

(source: Al Arabiya)

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

Egypt summons Pakistani ambassador over statement on Morsi's penalty



Egyptian Foreign ministry summoned the Pakistani ambassador to Cairo Tuesday to 
inform him that Cairo rejects a Pakistani statement over Former President 
Mohamed Morsi's death sentence.

The Pakistani statement included unacceptable comments against the Egyptian 
regime, Egypt's Foreign Ministry said.

"Further, our embassy in Islamabad conveyed the same message to the Pakistani 
side to express complete rejection of the latest statement by the Pakistani 
Foreign [Ministry,]" Egypt's statement added.

On May 19, the Pakistani Foreign Ministry issued a statement expressing its 
concerns over Morsi's death sentence, along with more than 100 others.

"Therefore, Pakistan underscores the fact, highlighted by many other countries, 
that the dispensation of justice must be based on the principles of equity and 
fairness," Pakistan's Foreign Ministry said.

"This is all the more important when political prisoners especially a former 
elected President, who was ousted from office, is brought before the court of 
law, Pakistan hopes that the Government of Egypt would take steps to meet the 
requirements of justice under law and would show compassion in case of 
political prisoners" the statement added.

On May 16, Cairo Criminal Court sentenced Morsi and 105, including Muslim 
Brotherhood senior figures, to death for escaping from jail in 2011.

On Jan. 29, 2011, assailants raided Wadi al-Natroun prison, freeing a large 
number of prisoners, including members of Egyptian, Palestinian and Lebanese 
Islamist groups. Morsi, who was jailed on remand, was among those who fled the 
prison.

(source: The Cairo Post)








KUWAIT:

Kuwaiti student escapes death penalty



A Kuwaiti student has escaped the death penalty after his victim's family 
pardoned him on Tuesday morning.

The ruling was announced by the Sharjah Appeal Court on Tuesday.

Another Kuwaiti student was also sentenced to death in the case but he did not 
receive a pardon from the family of the victim.

A 3rd student involved in the beating of the dead victim was fined Dh1,000 
earlier in absentia.

The 2 Kuwaiti students have already spent more than 2 years in jail for their 
part in the death of Mubarak Mesha'al Mubarak, 19, a unversity student in 
Sharjah who died at University City Hospital on February 24, 2013, following 
several days of physical abuse, said police.

The verdict is expected to be final as the victim's family's signed a paper 
pardoning the suspect, a prosecutor told Gulf News.

The parents of the victim as well as the family members of the pardoned Kuwaiti 
attended the session.

The decision is a reversal of earlier circumstances when the Kuwaiti victim's 
family asked the judge to give the duo the death sentence. They told Gulf News 
earlier they would never pardon the killers.

The verdict was issued by Judge Hussain Al Assofi on Tuesday morning.

(source: Gulf News)








PAKISTAN:

Pakistan SC dismisses plea seeking abolition of death penalty



Pakistan's Supreme Court on Tuesday dismissed a petition seeking abolition of 
the death penalty in the country.

Pakistan resumed imposing the death penalty in December after a Taliban attack 
on an army school in Peshawar killed 150 people, mostly children.

Various rights groups have criticised the government for resuming the 
executions.

Barrister Zafarullah had filed a petition seeking the abolition of the death 
penalty arguing that capital punishment was contrary to the fundamental rights.

A three-member bench of the court headed by Justice Saqib Nisar dismissed the 
petition.

The judge said that right to life and liberty are not absolute in the 
Constitution of Pakistan.

He said that the death penalty was provided in the law and in accordance with 
the law, a person can be deprived of life.

The court asked the petitioner to approach the parliament for change of laws to 
abolish death penalty in the country.

There are more than 8,000 death-row prisoners in Pakistan and more than 110 
have been executed since resumption of the death penalty.

(source: firstpost.com)




IRAN:

Negotiating with the Executors of Children



5Despite pressure from global community and human rights organizations, a young 
man, Hamid Ahmadi, is at imminent risk of execution, according to Amnesty 
international.

A few months ago, a Kurdish Juvenile "offender" was executed for charges such 
as "enmity against God" and "corruption on Earth." Iranian authorities carried 
out the execution despite international pressure. His family members were asked 
to collect his body the next day.

In addition, although the increasing number of executions for minor crimes is 
appalling in itself in the Islamic Republic, the execution of children adds 
more evidence of the egregious human rights abuses committed by the ruling 
clerics of the Islamic Republic.

In 2014 alone, 14 executions of people, who were less than 18 years old at the 
time of their "crime," were reported to Amnesty International. Possibly many 
other executions went unreported.

Speaking on Ahmadi???s case, Said Boumedouha, Deputy Director of Amnesty 
International's Middle East and North Africa Programme, pointed out, "The death 
penalty is the ultimate cruel, inhuman and degrading punishment, but it is 
particularly troubling that in this case Iran is again set to violate the clear 
prohibition in international law of executing those who were children at the 
time of the alleged crime. If the execution goes ahead while the case is under 
review at Iran???s highest court, it would also be an appalling miscarriage of 
justice." He added, "The Iranian authorities should halt all plans to carry out 
this execution immediately. They must allow justice to run its course without 
resorting to the death penalty."

Even under the new Islamic Penal Code of Iran, which is now in place, the 
Islamic Republic of Iran continues to executes children or those who commit 
adultery, sodomy, or drink alcohol repeatedly.M

The ruling clerics consider the age of puberty as the legal age for considering 
someone an adult. In addition they consider a lunar year, which is shorter than 
the solar year at roughly 354 days, as a basis for calculating someone's age.

According to the Shari???s Penal Code of Iran "A child is a person who has not 
reached the age of puberty as stipulated in Islamic Shari'a."

As a result, a girl who is 9 years old can be legally executed for committing a 
crime based on the Islamic Penal Code of the Islamic Republic.

Hypocritically, the Islamic Republic is a signatory member of the Convention on 
the Rights of the Child and the International Covenant on Civil and Political 
Rights. Yet the ruling mullahs of the Islamic Republic blatantly continue to 
violate the Convention on the Rights of the Child.

Iranian leaders point out that the new Islamic Penal Code has abolished child 
execution. Nevertheless, even under the new Islamic Penal Code the allowance of 
child execution is clear, according to article 146 and 147 of the Penal Code. 
Article 146 states that "Non-mature children have no criminal responsibility." 
And Article 147 indicates that "The age of maturity for girls and boys are, 
respectively, a full 9 and 15 lunar years."

If a juvenile execution case draws international pressure, the mullahs utilize 
another tactic. They usually keep the child in the prison until he/she is 18 
years old, then the government executes them, arguing the offender is executed 
as an adult.

Iranian authorities continuously violate the following 4 crucial articles of 
the Convention on the Rights of the Child

(a) No child shall be subjected to torture or other cruel, inhuman or degrading 
treatment or punishment. Neither capital punishment nor life imprisonment 
without possibility of release shall be imposed for offences committed by 
persons below 18 years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. 
The arrest, detention or imprisonment of a child shall be in conformity with 
the law and shall be used only as a measure of last resort and for the shortest 
appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect 
for the inherent dignity of the human person, and in a manner which takes into 
account the needs of persons of his or her age. In particular, every child 
deprived of liberty shall be separated from adults unless it is considered in 
the child's best interest not to do so and shall have the right to maintain 
contact with his or her family through correspondence and visits, save in 
exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt 
access to legal and other appropriate assistance, as well as the right to 
challenge the legality of the deprivation of his or her liberty before a court 
or other competent, independent and impartial authority, and to a prompt 
decision on any such action.

The case to execute Ahmadi is only one example among many. He was forced into 
giving a "confession," as many other prisoners have been. And his trial, as 
many other trials, was unfair, and flawed, with no adequate legal 
representation. Based on the Iranian Islamic principle of "knowledge of the 
judge," the judge subjectively decided to sentence Ahmadi to death. As 
Boumedouha pointed out, "Instead of sending another young man to the gallows 
after a flawed judicial process, the Iranian authorities should be launching an 
independent investigation into the allegation that Hamid Ahmadi was forced to 
'confess' and incriminate himself."

According to an annual report on the death penalty in 2014, 1193 people had 
been executed in the Islamic Republic since President Hassan Rouhani came to 
power; that means that approximately 2 executions occur every day.

It is worth noting that we are negotiating and sitting on the same table with 
those Iranian leaders who are not only notorious for their anti-American and 
anti-Semitic sentiments, but also well known for egregious human rights 
violations against children. What kind of message are we sending to many 
Iranian people who are oppressed under the Ayatollah regime?

(source: frontpagemag.com)








SRI LANKA:

Sri Lankan President pledges maximum punishment for culprits of Jaffna rape and 
murder



May 26, Jaffna: Sri Lankan President Maithripala Sirisena today pledged maximum 
possible punishment to the perpetrators of the brutal gang-rape and murder of a 
17-year-old schoolgirl in Jaffna.

President Sirisena, who paid a sudden visit to Jaffna Tuesday, assured to take 
all measures to impose maximum punishment to the suspects of the crime through 
a special court. He stressed not to leave any room in the future for such 
crimes to happen in the country.

The President met with the mother and the brother of the murder victim, 
Sivayoganathan Vithya today (26) at the Jaffna Governors Official Residence.

Chief Minister of the Northern Province C.V. Vigneswaran, Deputy Minister 
Vijayakala Maheshwaran and Member of Parliament Mavai Senathirajah joined the 
President at this meeting.

The 18 year old student of the Pungudutivu Maha Vidyalayam was gang raped and 
strangled to death. Her body was found with her hands and legs tied to a log 
inside a run-down house in Pungudutivu. The police have arrested nine suspects 
in connection with the crime.

The gang rape and the killing shook the island nation sparking violent protests 
in Jaffna seeking justice for the young victim. The police arrested scores of 
protesters who demanded the police to hand over the suspects to them to meet 
justice. The protesters demanded a swift trial and death penalty for the 
suspects.

Meanwhile, the Inspector General of Police has ordered to deploy 3 police teams 
to carryout expeditious investigations into the crime. The investigations have 
been expedited on the instructions of the President.

(source: colombohomepage.com)








INDIA:

2 persons get death in triple murder



A Basti court on Tuesday awarded death sentence to 2 persons after finding them 
guilty of committing triple murders in 2011. The murders were a result of a 
dispute related to then panchayat elections, police said.

3 persons -- Pankaj Pandey, Shiv Prakash and Ratnakar -- were at a tea stall in 
Keswapur village under Paikulia police station of Basti on September 26, 2011, 
when 4 miscreants came on 2 motorbikes and opened fire on them. Pankaj died on 
the spot, while Shiv Prakash and Ratnakar died later in the hospital.

A named FIR was lodged against 4 persons. 2 accused, Dharmendra and Surya 
Prakash, were convicted in the case, while other 2 were acquitted by the court 
lack of evidence. On Tuesday, the court awarded death penalty to Dharmendra and 
Surya Prakash.

(source: The Times of India)








INDONESIA:

Wife planned Aussie businessman's Bali murder: prosecutor



An Indonesian woman on trial for ordering her Australian husband's Bali murder 
did not act spontaneously out of anger, but planned the hit and stuck with the 
plan despite having time to change her mind, the prosecution has argued.

Noor Ellis could receive the death penalty for pre-meditated murder, but the 
prosecution has recommended a maximum 15 years for arranging the ambush of her 
husband of 25 years, Robert Ellis.

The 60-year-old businessman's throat was slashed in the kitchen of his Bali 
villa in October last year, and his body wrapped in plastic and dumped in a 
ditch.

The crime has torn the family apart, with their sons Peter and John distressed 
by what they believe is too light a sentence.

Ellis has asked for a sentence lighter than 15 years so she can support her 
sons.

But Peter Ellis last week made it clear they don't want her support, walking 
away when his mother approached him at court.

The son of murdered businessman Robert Ellis has snubbed his mother in court 
who is accused of plotting his father's death.

Before Tuesday's hearing she told reporters she hoped her sons would one day 
forgive her.

"I will keep on loving my children even though they hate me," she said.

Prosecutor Ida Ayu Sulasmi said Ellis' defence had been inconsistent, selective 
and dishonest.

It was clear from the evidence of 7 witnesses - the 5 men involved in the 
killing and 2 maids who abetted them - that Ellis planned it and played a role, 
she said.

Ellis had picked up the men, given them a signal when Mr Ellis arrived home at 
the villa and later helped dump his body.

Rather than ordering the hit in a fit of rage, as the defence had argued, Ellis 
had made a deal on the price and requested that it not be done "sadistically".

"There was quite a time gap between the 1st time the defendant contacted Aril 
until the implementation of murder that proves that the defendant had the 
intention to kill the victim or there was no intention to abort (the plan)," 
she said.

Aril, or Andreanus Ngongo, is 1 of 5 men on trial over an alleged involvement 
in the killing.

Ellis has claimed she resorted to violence after suffering neglect at the hands 
of her wealthy husband for years.

Her defence chose not to respond, meaning she will be sentenced next Wednesday.

(source: 9news.com.au)








PHILIPPINES:

Shades of Sarah



As of last month, per the records of the Department of Foreign Affairs, 88 
overseas Filipino workers are on death row in a number of countries for various 
crimes, mostly murder and illegal drugs. Saudi Arabia has 28, Malaysia 34, 
China 21, the United States 2, Vietnam 2, Kuwait 1, Indonesia 1 (the celebrated 
case of Mary Jane Veloso, whose execution was stayed at the last minute by the 
Indonesian government), and Thailand 1.

That number now goes up to 89 with another Filipino having been sentenced to 
death, this time in the United Arab Emirates, for allegedly killing her 
employer. Jennifer Dalquez, 28, reportedly stabbed her employer last Dec. 7 
after the latter attempted to rape her at knifepoint. She was arrested 5 days 
later, and was meted the death penalty by a trial court last May 20.

Dalquez, according to her family based in General Santos City, had been working 
in the UAE since 2011, and was scheduled to return home in January. The DFA 
says it has extended all help to her, and will continue to do so as she appeals 
her sentence.

Another day, another OFW in peril. The DFA should ensure that, this time, 
Dalquez gets the best legal and professional help every step of the way to be 
able to present a thorough defense of her case. It's been only weeks since 
Veloso's reprieve in Indonesia, and the DFA should now have learned its lesson 
from the belated revelation of deficiencies, even instances of neglect, in its 
handling of her case.

Notably, Veloso's parents have claimed that no DFA representative was present 
at the beginning of her trial for drug smuggling; she was represented by a pro 
bono Indonesian lawyer appointed by the court, and the interpreter tasked to 
help her was only a student at a local foreign language school. Veloso was 
apprehended in Yogyakarta airport in April 2010; the prosecutors had only asked 
for life imprisonment, but the court sentenced her to death. The Aquino 
administration, based on the timeline it has provided, claims to have 
unceasingly if quietly worked on her case by filing several appeals with the 
Indonesian government, all the way to its Supreme Court, which also upheld the 
verdict. But cause-oriented groups say the government was remiss in many 
instances, from neglecting to arrest Veloso's illegal recruiter immediately to 
buttress the case of human trafficking that could have been used to defend her 
(and that became, indeed, Indonesia's rationale for staying her execution), to 
the years-long runaround that her parents claim they were subjected to at the 
DFA as they repeatedly sought help for their incarcerated daughter.

It's worth noting that before Veloso was arrested in Indonesia for alleged drug 
smuggling, she had first worked in Dubai as a domestic helper, until she had to 
flee and return to Manila when her employer reportedly tried to rape her. In 
this, Veloso and Dalquez, and Sarah Balabagan before them, share the common 
ordeal of often barely educated Filipino women forced by poverty to seek work 
abroad, where they are preyed upon, if not by illegal recruiters, then by 
employers who take advantage of their helplessness in a foreign land.

Dalquez's case, in fact, bears uncanny similarities to Balabagan's. A Muslim 
from Maguindanao, Balabagan was a minor who lied about her age to obtain 
employment as a maid in the UAE. In July 1994, she stabbed her employer 34 
times because, she said, the man wanted to rape her. She was first convicted of 
manslaughter and sentenced to 7 years' imprisonment plus the payment of blood 
money to the slain man's family. But a higher court convicted her of murder and 
sentenced her to die by firing squad. As in Veloso's case, her then-impending 
execution prompted frantic last-minute negotiations by the Philippine 
government, helped along by international outrage at perceived oppressive 
conditions of foreign workers, especially women, in the Middle East.

Balabagan' s sentence was eventually commuted. Incidentally, Al Ain, the UAE 
town where she worked, is where Dalquez also ended up; it was the Al Ain trial 
court that meted her the death penalty. If the parallels between these two 
cases hold true some more, then perhaps Dalquez can hope for some form of 
relief. But that hope rests squarely on how the DFA and the Philippine 
government will handle her case. Balabagan's is a precedent case; her 
employer's family agreed to waive execution in exchange for blood money and 20 
lashes. The DFA should exhaust all options to save Dalquez from death.

source: Editorial, Philippine Daily Inquirer)








PAPUA NEW GUINEA:

PNG police to hear complaint over sorcery axe murder



A group of Papua New Guinea highlanders are on their way to the police station 
in Enga province to lodge a formal complaint over an alleged brutal axe murder.

A woman named Misila was reportedly killed after locals accused her of sorcery.

Local men who believe in ancestral spirits had blamed 3 women following a 
measles epidemic that killed several people in Enga last year.

The women were saved by a Lutheran missionary, Anton Lutz, and policemen in 
January, after they persuaded the men to give up the superstitious beliefs.

However, Mr Lutz says on Monday 10 men came to Misila's home and killed her 
with an axe.

He says a plane has been arranged to take a group from the village today so 
they can make a police complaint, which they hope will lead to a formal 
investigation.

PNG passed a law bringing back the death penalty in 2013, and repealed its 
archaic Sorcery Law, after a spate of killings.

However the death penalty has not been implemented and the Government says it 
will be debated again in Parliament this year.

(source: Radio New Zealand International)








BANGLADESH:

Revisiting mandatory death penalty case



Recently, the Appellate Division of the Supreme Court has been reported to 
declare section 6(2) (3) (4) of the Nari O Shishu Nirjaton (Bisesh Bidhan) Ain, 
1995 (the Ain of 1995) and section 34(2) of the Nari o Shishu Nirjaton (Bisesh 
Bidhan) Ain, 2000 unconstitutional. According to news reports, the aforesaid 
provisions have been held unconstitutional because they provide for mandatory 
death penalty as punishment for the offence of causing death after rape.

It may be recalled that section 6(2) of the Ain of 1995 was first held 
unconstitutional by the High Court Division in Bangladesh Legal Aid and 
Services Trust (BLAST) and Another v Bangladesh represented by the Secretary, 
Ministry of Home Affairs and Others [2011] 63 DLR 10. Pending availability of 
the judgment of the Appellate Division, it will be worth taking a fresh look at 
the judgment of the High Court Division.

The material facts of the case is Md. Shukur Ali was convicted of rape and 
murder and was eventually sentenced to death under section 6(2) of the Ain of 
1995. At the time of trial, Md. Shukur Ali was a minor. The petitioners filed a 
writ petition impugning, inter alia, section 6(2) of the Ain of 1995 primarily 
on the grounds that it provides for mandatory death penalty which is repugnant 
to the Constitution.

In this case, the petitioners' first submission (which actually comprises 3 
propositions) was that any laws providing for capital punishment if enacted 
before the Constitution's coming into force would be valid. And, if the laws 
which have been enacted after the Constitution's coming into force provide for 
capital punishment would be unconstitutional.

However, in any of the aforesaid cases, the provision of mandatory death 
penalty would be unconstitutional. The aforesaid submission was mainly built on 
a combined reading of Articles 26, 32 and 35 of the Constitution. Relying on 
Article 35(5) of the Constitution - which provides that no person should be 
subjected to torture or to cruel, inhuman, or degrading punishment or treatment 
- the petitioners construed death penalty as a cruel and inhuman punishment. 
The petitioners' argument about validity of the pre-constitutional laws 
providing for death penalty derived from Article 35(6) which provides that the 
operation of any existing law which prescribed any punishment or procedure for 
trial should not be affected. In addition, referring to Article 26(1) & (2), 
the petitioners sought to vindicate the arguments that all lex lata and lex 
ferenda providing for mandatory death penalty would be repugnant to the 
Constitution and therefore, section 6(2) of the Ain of 1995 would be void.

The petitioners, furthermore, submitted that any provision of mandatory death 
penalty was arbitrary for the reason that it curtailed the discretionary power 
of the court in adjudicating cases and therefore, would be repugnant to Part VI 
of the Constitution. The petitioners quoted from the Universal Declaration of 
Human Right (UDHR), 1948 and the International Covenant on Civil and Political 
Rights (ICCPR), 1966 as well as cited foreign case laws in support of both of 
the submissions.

The High Court Division dismissed the first two propositions of the first 
submission on the grounds that if death penalty is not allowed to be 
incorporated in the post-constitution laws, there would be discrimination in 
regard to treatment of offenders under the new laws as compared to those dealt 
with under the earlier laws. However, the High Court Division appreciated the 
second submission by noting that the provision of mandatory punishment would 
render the court into a simple rubberstamp of the legislature. The High Court 
Division observed that any provision of mandatory punishment would result in 
prejudicing the court's power of adjudication since the court would be 
prevented from considering the attenuating factors and compulsorily impose the 
mandatory punishment upon finding the accused guilty.

Accordingly, the High Court Division concluded that the court should not be 
bereft of its discretionary power to determine appropriate punishment for any 
given crime. The High Court Division decided that any provision of law which 
provided for a mandatory death penalty would be unconstitutional and 
accordingly held section 6(2) of the Ain of 1995 repugnant (paragraphs 38, 42 & 
45). The reasoning that mandatory death penalty is unconstitutional because it 
curtails the discretion is clearly the ratio decidendi of this case.

The High Court Division's decision in this case deserves some discussion. For 
example, it appears from the reasoning of this case that section 6(2) of the 
Ain of 1995 (provision of mandatory death penalty) was held inconsistent with 
Part VI of the Constitution ('Judiciary'), and not with Part III ('Fundamental 
Rights'). Had the opposite been done, alternative sentencing would have been 
recognised as a fundamental right of the convicted persons.

The High Court Division did not specifically point out which particular 
provision of the Constitution invests her with 'mandatory power of judicial 
discretion' in determining the degree and amount of sentence and how it is in 
conflict with a mandatory sentencing provision of law. If mandatory death 
penalty is unconstitutional because it limits the court's judicial discretion, 
all other mandatory penalties should accordingly be unconstitutional for 
similar reason although the court did not elaborate on this aspect anywhere in 
its judgment. Although in the final sense, the ratio of this case strictly 
involves aspects relating to functions of the judiciary or judicial 
independence, the decision, nevertheless, carries a strong human rights message 
which we are eagerly waiting to see to be capitalised.

(source: Kawser Ahmed; The writer is an Advocate, Supreme Court of 
Bangladesh----The Daily Star)








SAUDI ARABIA----execution

Saudi executes 88th person this year, topping 2014 total



Saudi Arabia on Tuesday carried out its 88th execution so far this year, 
surpassing the total for all of 2014 despite activists' concerns that trials 
are not conducted fairly.

The interior ministry identified the latest to be put to death as Saudis Awad 
al-Rowaili and Lafi al-Shammary, who were convicted of smuggling amphetamines.

They were executed in the northern region of Jawf, the ministry said in 
statements carried by the official Saudi Press Agency.

Another Saudi, Mohammed al-Shihri, was separately put to death in the 
southwestern region of Asir for murder.

The conservative Islamic kingdom executed 87 people in 2014, according to an 
AFP tally.

Those beheaded this year include Siti Zainab, an Indonesian domestic worker 
convicted of murder despite concerns about her mental health, according to the 
Indonesian newspaper Kompas.

Jakarta summoned Riyadh's ambassador over her case, a rare diplomatic incident 
linked to Saudi Arabia's executions, around half of which involve foreigners.

Also among this year's dead are at least 8 Yemenis, 10 Pakistanis, Syrians, 
Jordanians, and individuals from Myanmar, the Philippines, India, Chad, Eritrea 
and Sudan.

Saudi Arabia ranked among the world's top 5 executioners in 2014, according to 
rights group Amnesty International.

Under the Gulf nation's strict version of Islamic sharia law, drug trafficking, 
rape, murder, apostasy and armed robbery are all punishable by death.

Executions are carried out in public, mostly by beheading with a sword.

A surge in executions began towards the end of the reign of King Abdullah, who 
died on January 23.

It accelerated this year under his successor King Salman, in what Amnesty has 
called an unprecedented "macabre spike".

Activists are unable to explain specific reasons for the surge, and officials 
have not commented.

One activist said the death penalty is carried out only with the king's final 
approval.

"So if the king is strict he will sign this paper," said the activist, asking 
for anonymity.

- 'Secret' trials -

Salman has adopted a more assertive foreign policy, and in April promoted his 
powerful Interior Minister Mohammed bin Nayef to be crown prince and heir to 
the throne.

The Berlin-based European Saudi Organisation for Human Rights said in a report 
that the death penalty in the kingdom is "often applied to powerless 
individuals with no government connection".

Ali Adubisi, the group's director, told AFP that economic factors could be 
leading to a rise in drug crimes. Many are turning to the illegal business 
"because they are poor", he said.

Drug and murder convictions account for the bulk of executions in Saudi Arabia.

But according to London-based Amnesty, only crimes of "intentional killings" 
meet the threshold for use of the death penalty under international human 
rights standards.

It said court proceedings in the country "fall far short" of global norms of 
fairness.

"Trials in death penalty cases are often held in secret. Defendants are rarely 
allowed formal representation by lawyers" and may be convicted solely on the 
basis of "confessions", Amnesty said in a report.

With the number of beheadings soaring, the civil service this month advertised 
for eight new "executors of retribution".

In a country where government officials are not known for their openness, all 
executions are publicised by the official press agency, and the interior 
ministry has cited deterrence as a reason for the punishment.

The number of executions will rise even higher if death sentences are carried 
out against nine people who activists say were convicted after demonstrations 
that began in 2011 by the minority Shiite community.

Among them is Shiite cleric Nimr al-Nimr, a driving force behind those 
protests. Adubisi said three teenagers, aged 15-17 at the time of their 
arrests, are also among the condemned.

Although death sentences can be appealed to higher courts, he said there is "no 
transparency at all" about which stage the cases have reached, in what can be a 
lengthy process.

"It's a type of torture for these people and their families," he said.

(source: Yahoo News)