[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

February 18




INDIA:

In 2:1 verdict, SC upholds constitutional validity of death penalty----Has 
death penalty in the statute served as a deterrent for heinous crime?



A 3-judge bench of the Supreme Court in a verdict on Wednesday expressed 
different opinions on this with one saying that the provision of capital 
punishment has failed to become a deterrent and the other 2 holding that a 
larger bench had already decided its continuance in the rarest of rare cases.

A 3-judge bench comprising justices Kurian Joseph, Deepak Gupta and Hemant 
Gupta commuted the death sentence of a man and awarded him life term for 
murdering 3 persons including 2 women.

Though the 3 judges differed on the applicability of death penalty, they were 
unanimous in commuting the death sentence of Chhannu Lal Verma.

Justice Joseph, who is to superannuate on Thursday, while pronouncing the 
verdict, read his views on the applicability of death sentence.

Referring to the 262nd report of the Law Commission, Justice Joseph said, “The 
constitutional regulation of capital punishment attempted in Bachan Singh 
versus State of Punjab in 1980 has failed to prevent death sentences from being 
‘arbitrarily and freakishly imposed‘ and that capital punishment has failed to 
achieve any constitutionally valid penological goals, we are of the view that a 
time has come where we view the need for death penalty as a punishment, 
especially its purpose and practice.”

He also said that till the time death penalty exists in the statute books, the 
burden to be satisfied by the judge in awarding this punishment must be high.

According to Justice Joseph, the irrevocable nature of the sentence and the 
fact that the death row convicts are, for that period, hanging between life and 
death are to be duly considered.

“Every death penalty case before the court deals with a human life that enjoys 
certain constitutional protection and if life is to be taken away, then the 
process must adhere to the strictest and highest constitutional standards. Our 
conscience as judges, which is guided by constitutional principles, cannot 
allow anything less than that,” Justice Joseph, who wrote judgement for the 
bench, said.

Justices Deepak Gupta and Hemant Gupta gave divergent opinion on the views 
expressed by Justice Joseph on applicability of death sentence and said a 
5-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had 
already held the constitutional validity of death penalty provided in Indian 
Penal Code.

“In our view, since the Constitution Bench in Bachan Singh vs. State of Punjab, 
has upheld capital punishment, there is no need to re-­examine the same at this 
stage,” justices Deepak Gupta and Hemant Gupta said.

Justice Joseph, who wrote the verdict for the bench, also voiced his 
“anguishing concern” with regard to public discourse on crimes which have an 
impact on the trial, conviction and sentence in a case.

“The court‘s duty to be constitutionally correct even when its view is 
counter-majoritarian is also a factor which should weigh with the court when it 
deals with the collective conscience of the people or public opinion. After 
all, the society‘s perspective is generally formed by the emotionally charged 
narratives. Such narratives need not necessarily be legally correct, properly 
informed or procedurally proper,” he said.

Justice Joseph, while referring to the law commission report said that the 
court plays a counter-majoritarian role in protecting individual rights against 
majoritarian impulses.

“In this context, we may also express our concern on the legality and propriety 
of the people engaging in a ‘trial‘ prior to the process of trial by the 
court,” he said.

Justice Joseph said that it has almost become a “trend” for the investigating 
agency to present their version and create a cloud in the collective conscience 
of the society regarding the crime and the criminal.

“This undoubtedly puts mounting pressure on the courts at all the stages of the 
trial and certainly they have a tendency to interfere with the due course of 
justice,” he said.

The three judges were unanimous on their view that the Chhattisgarh high court 
in the case at hand has erroneously confirmed death penalty on the man without 
correctly applying the law laid down in Bachan Singh and other cases.

“The decision to impose the highest punishment of death sentence in this case 
does not fulfil the test of rarest of rare case where the alternative option is 
unquestionably foreclosed,” the bench said.

It said that no evidence as to the uncommon nature of the offence or the 
improbability of reformation or rehabilitation of the appellant has been 
adduced.

It noted that the superintendent of the jail has given a certificate that his 
conduct in jail has been good during the pendency of his appeal in apex court 
for past 4 years.

“Thus, there is a clear indication that despite having lost all hope, yet no 
frustration has set on the appellant. On the contrary, there was a conscious 
effort on his part to lead a good life for the remaining period. A convict is 
sent to jail with the hope and expectation that he would make amends and get 
reformed,” it said.

(source: herdongazette.com)








MYANMAR:

Lawyer seeks sentence revision in U Ko Ni slaying conviction



A prosecution lawyer in the 2017 murder of prominent National League for 
Democracy lawyer U Ko Ni says he will file an appeal against the sentence of 
one of the four people convicted of the crime.

U Nay La said on Friday that the sentence of U Zeya Phyo was not in line with 
the law, and called for its revision. U Zeya Phyo was sentenced to five years 
in prison with hard labour for falsifying evidence.

Yangon Northern District Court on Friday sentenced to death U Kyi Lin and his 
accomplice U Aung Win Zaw for killing U Ko Ni.

The court also sentenced U Kyi Lin to 20 years in prison for killing a taxi 
driver who tried to stop U Ko Ni’s assassination and to 3 years for possession 
of illegal arms.

U Aung Win Tun received 3 years in prison for harbouring a criminal.

“We will appeal for a revision because Zeya Phyo was not sentenced for the 
crime he was charged with but instead for falsifying evidence,” said U Nay La.

U Kyi Lin and U Aung Win Zaw can appeal their death sentences within seven days 
of the verdict. They can appeal their death sentences to the Regional High 
Court and apply for a revision from the Union Supreme Court. If they are 
unsuccessful, they can appeal to the president.

U Zeya Phyo and U Aung Win Tun will have their time served in jail deducted 
from their prison terms.

U Robert San Aung, another lawyer for the prosecution, said police are 
continuing their search for U Aung Win Khaing, who is believed to have 
orchestrated the assassination.

The trial in the case, which began March 12, 2017, questioned some 200 
witnesses in 104 hearings at the North District Court.

Many people believe that U Ko Ni was murdered for spotting loopholes in the 
2008 Constitution and creating the position of state counsellor for Daw Aung 
San Suu Kyi.

Although the death penalty has not been withdrawn in Myanmar, it has not been 
used since March 1988. Criminals on death row in Myanmar typically have their 
sentences commuted to an indefinite prison term.

(source: Myanmar Times)