[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Dec. 6




INDIA:

Can stay execution of Chhattisgarh-based convict: Delhi HC


The Delhi High Court today said it can hear and grant stay on the execution of 
a man held guilty for murder of 5 persons, including 2 children, in 2004 in 
Chhattisgarh, as the decision rejecting his mercy plea was taken here by the 
President of India.

A bench of Justices G S Sistani and Vinod Goel said this while dismissing the 
plea of the Chhattisgarh government that the Delhi High Court did not have 
jurisdiction to hear the matter.

The state government had contended that rejection of mercy plea by the 
President and the Governor of Chhattisgarh does not give rise to any cause of 
action. The high court, however, refused to accept the contention, saying mercy 
petition was the "last thread" between convict and the gallows and its 
rejection, which leads to issuance of warrants of execution, "closes the last 
hope upon which his very life is reliant".

"Therefore, in our view, the rejection of mercy petition does give rise to a 
cause of action at Delhi," it said.

The bench also said, "The material to be examined is the advice tendered by the 
cabinet and all the documents and records pertaining to the same are in Delhi 
and the decision has also been taken in Delhi.

"Further the location of the convict also makes no difference, as the convict 
being the dominus litis (the main litigant) is free to invoke the jurisdiction 
of this court."

The court also rejected the state government's argument that cause of action 
was linked with crime, saying that "concept of cause of action in respect of 
criminal proceedings cannot apply sensu stricto (strict sense) to the present 
proceedings as the same are not a continuation of the judicial proceedings but 
premised upon executive orders".

It said that the act of the President of India under the constitutional power 
is entirely different from the judicial power and cannot be regarded as an 
extension of it.

"Accordingly, it cannot be said that the power exercised by the President of 
India (rejecting the mercy plea) is in continuation of the judicial 
proceedings," it said.

The state government's application was filed in the main petition of the 
convict, Sonu Sardar, who has sought that his death penalty be commuted to life 
imprisonment on account of delay in deciding his mercy plea as well as for 
allegedly keeping him in "solitary confinement illegally".

The Delhi High Court had on March 2, 2015 stayed the execution of Sardar after 
which the state government had approached the Supreme Court challenging the 
Delhi High Court's jurisdiction to hear the matter. The apex court had asked 
the high court to decide the state's application in 4 weeks.

Sardar, along with his brother and accomplices, had killed 5 persons of a 
family, including a woman and 2 children, during a dacoity bid in 
Chhattisgarh's Cher village on November 26, 2004. The trial court had slapped 
death penalty on him and the Chhattisgarh High Court had upheld it.

The Supreme Court in February 2012 had concurred with the findings of 2 courts 
below and affirmed the punishment. His mercy petition was also dismissed by 
both the state Governor and the President of India. In February 2015, the apex 
court had also rejected his review plea.

(source: Business Standard)






UNITED ARAB EMIRATES:

Dubai Sentences 10 Punjabi Citizens To Death In Murder Case


A civil court in Dubai in the province of United Arab Emirates has issued the 
death penalty to 10 Punjabis who had gone there to earn a living.

The men have been found guilty in a case pertaining to the murder of a 
Pakistani citizen in a clash over alcohol drinking. The 10 men were originally 
from Malerkotla, Tarn Taran, Samrala, Ludhiana, Moga, Patiala and Gurdaspurs 
districts.

The court's verdict has distressed the families of the young men and they have 
started approaching the Indian authorities to make efforts to save them. It is 
learnt that efforts were being made to lodge an appeal against the court's 
verdict.

(source: sikh24.com)






MIDDLE EAST:

Theresa May should condemn Saudi death penalties at GCC meeting


The British PM should use her meeting with the King of Saudi Arabia to condemn 
the country's sentencing to death today of 15 Shia Muslims for alleged 
espionage.

Theresa May is visiting Bahrain to meet with leaders of Persian Gulf states, 
who are in the country for a meeting of the Gulf Cooperation Council.

She will attend a dinner with the leaders of Saudi Arabia, Kuwait, the United 
Arab Emirates, Qatar, Bahrain and Oman on Tuesday, before addressing the 
plenary session of the summit on Wednesday.

IHRC believes the meeting is an opportune moment for the PM to raise concerns 
about Saudi Arabia's liberal use of the death penalty against the country's 
minority Shia under the pretexts of terrorism and spying.

In January, Saudi Arabia executed prominent Shia cleric Nimr Baqir al-Nimr, a 
prominent religious and political opponent, after finding him guilty of 
involvement in the killing of policemen. Shias in the kingdom's Eastern 
Province say they face persistent discrimination affecting their ability to 
work, study and worship freely.

IHRC's own research from 2011 (the beginning of the demonstrations in the Shi'a 
majority Eastern Province) indicates that there are an estimated 30,000 
political prisoners in Saudi Arabia out of a population of approximately 18 
million Saudi nationals. Whilst the 30,000 political prisoners are drawn from 
different sections of Saudi society, the government targets Shia Muslims to 
sectarianize legitimate opposition to the regime.

Theresa May should also raise with Saudi Arabia its ongoing war in Yemen which 
has seen countless atrocities against Yemeni civilians and the Middle East's 
poorest country bombed back to the dark ages.

IHRC chairman Massoud Shadjareh said: "Since the PM is so fond of extolling the 
importance of so-called British values to a domestic audience it would only be 
right and proper for her to do the same in front of a leader whose country has 
not only shown scant regard for these values but whose human rights record get 
worse by the day."

(soruce: MEHR News Agency)






SINGAPORE:

The Right to Legal Representation in Death Penalty Cases: A Resolve Not to be 
Stifled


Since May 2016 and the filing of the media statements by the Attorney-General's 
Chambers and the Ministry of Home Affairs, a community of lawyers have observed 
a steady increase in the number of discouraging comments by the judiciary 
towards lawyers who chose to defend their clients in certain types of cases. 
This is especially apparent in death penalty cases where lawyers represent 
highly sensitive and emotionally strung defendants, often raising 
constitutional law points.

No doubt it is important that applicants are disallowed from prolonging matters 
or filing multiple applications simply to waste judicial time. However, where 
such cases involve the ultimate punishment, namely, the irreversibility of 
death, the courts should surely not label any counsel's attempt to argue as 
"drip-feeding" or "squandering judicial time". In the latest case of Prabagaran 
(and 3 others) 1 who were before the Apex court on their joint constitutional 
challenge, the court went a step even further to suggest that "when an 
application is made after the appeal process has been completed, we expect 
counsel for the applicant to swear or affirm an affidavit setting out the 
reasons why the points or matters raised in the application could not have been 
raised earlier in the appeal proper". This, I argue would seriously stifle 
lawyers from accepting last minute instructions from death row inmates or their 
families and from advancing issues of public importance or matters relating to 
the particular legal issues in their cases. Should this go ahead, the move 
would be unprecedented and one which would be difficult to fathom in any legal 
circles.

This article highlights recent cases and the remarks that have been made by 
judges. It comments on the impact these negative comments have on the core role 
a lawyer to defend and represent his client to the best of his ability. It 
comments on how the courts ought to be mindful of an applicant's need to the 
right to legal representation (more so in end of life cases) and urges 
Singapore lawyers to forge ahead no matter how "hopeless" a brief seems 
especially involving the poor and the defenceless.

Prabagaran's Case

Prabagaran was arrested in April 2012 after 22.24 grams of diamorphine was 
found inside a car, though not owned by him, was driven by him into Singapore 
through the Malaysian-Singapore Causeway. Under the law, if any unlicensed 
controlled drug is found in a vehicle, it is presumed to be in possession of 
the owner of the car, or of the person who was driving the vehicle. If the 
person is unable to give a satisfactory and convincing account that he was not 
aware that the drugs were in his car, he is presumed to be guilty of drug 
trafficking. Unable to convince the court as to why he borrowed the car or to 
explain the facts logically, Prabagaran was found guilty by the High Court and 
then again at the Court of Appeal. Prabagaran's conviction was based entirely 
on his testimony and the accounts of government officials involved in the case. 
All the other parties and witnesses mentioned by Prabagaran were not produced 
in court, nor were their statements taken by the authorities. According to 
Prabagaran's lawyers, testimonies made by critical witnesses would have made a 
material difference his defense. Their testimonies would have helped 
corroborate Prabagaran's side of the story. This meant that the courts 
proceeded to sentence Prabagaran to death based on circumstantial evidence 
only.

Why was the Latest Appeal Made?

Section 33B of the Misuse of Drugs Act (MDA) confers upon the court the 
discretion to sentence a person, who is convicted of offences punishable by 
death, to suffer the lesser punishment of life imprisonment where certain 
statutorily prescribed requirements are met. Section 33B(2) of the MDA sets out 
2 requirements. The 1st is that the person convicted must prove on a balance of 
probabilities, that his involvement in the offence was restricted to the acts 
prescribed in s 33B(2)(a) of the MDA, i.e. that he was simply a drug courier 
("the Courier Requirement"). The 2nd, set out in s 33B(2)(b) of the MDA is that 
the Public Prosecutor (PP) certifies that the person has substantively assisted 
in "disrupting drug trafficking activities".

At the trial level, the PP did not issue a certificate of substantive 
assistance under s 33B(2)(b) of the MDA, and the High Court judge accordingly 
imposed the mandatory sentence of death. No finding was also made as to whether 
the applicant satisfied the Courier Requirement. His appeal against his 
conviction, premised solely on the issue as to whether he had rebutted the 
presumptions of knowledge and possession under sections 18(2) and 21 of the MDA 
respectively, was dismissed in October 2015.

The Prabagaran (and 3 others) latest appeal questioned the constitutionality of 
s 33B(2)(b) and s 33B(4), as well as the Second Schedule of the MDA. There 
were, broadly speaking, 2 main points of challenge. First, it was argued that 
the 2 sections were in breach of the constitutional principle of separation of 
powers embodied in the Constitution of the Republic of Singapore. Second, that 
the provisions are not "law" capable of depriving the applicant's life and 
liberty under Art 9(1) of the Constitution. The primary relief sought was an 
order setting aside his death sentence and substituting it with a sentence of 
imprisonment for life, or an order to stay the execution of the death sentence 
pending his resentencing under a constitutionally valid provision. A Blatant 
Attempt at Re-opening Past Cases?

In the Prabagaran (and three others) judgment, the court remarked whether the 
applicant's case was even worthy of hearing since the PP had submitted that it 
was a "blatant attempt at re-opening previous decisions of this court".

Following Kho Jabing v PP2, the court commented on the "burgeoning number of 
applications seeking to reopen concluded criminal appeals" and while the court 
acknowledged that that it had the power to do so, the power should only be 
exercised where there is "sufficient (new) material on which the court can say 
there has been a miscarriage of justice." The court warned that a "seeming 
legal point which is dressed up as a constitutional issue may not be given much 
consideration." The court reiterated that there should be sufficient material 
that is new in the sense that it has not been canvassed at any stage of the 
proceedings prior to the Motions and could not have been adduced in court 
earlier even with reasonable diligence. This criterion of "non-availability" as 
regards new legal arguments will ordinarily be satisfied only if they concern a 
change in the law - as determined in the Kho Jabing case.

More Stifling Remarks?

Below are a few more dissuading quotes from judgments:

"Strong reasons must be advanced to explain why a point taken later could not 
have been made earlier. The courts will not allow themselves to be used by 
either ingenious counsel or a determined applicant as a means for delaying the 
conclusion of a case." - Prabagaran at para 19

"It would be impossible to have a functioning legal system if all legal 
decisions were open to constant and unceasing challenge ... The concern here is 
not just with the saving of valuable judicial resources (vital though that is), 
but also with the integrity of the judicial process itself. Nothing can be as 
corrosive of general confidence in the criminal process as an entrenched 
culture of self-doubt engendered by abusive and repetitive attempts to 
re-litigate matters which have already been decided." - Kho Jabing at para 47

"But, once the processes of appeal and/or review have run their course, the 
legal process must recede into the background, and attention must then shift 
from the legal contest to the search for repose. We do not think it benefits 
anyone - not accused persons, not their families nor society at large - for 
there to be an endless inquiry into the same facts and the same law with the 
same raised hopes and dashed expectations that accompany each such fruitless 
endeavour." Kho Jabing at para 50

"In our judgment, the filing of the present application at the 11th hour before 
the applicant's scheduled execution in order to prevent the carrying out of a 
sentence which has been properly imposed by law amounts to an abuse of the 
court's processes for collateral motives and amounts to a calculated and 
contumelious abuse of the process of the court." - Chijioke Stephen Obioha at 
para 8 Oath Not be Deterred

All lawyers have a duty not to mislead the court, to be professional, 
well-prepared and competent to represent their clients. They have a duty not to 
waste the court's time and be prudent and efficient. Sadly, we have seen some 
cases (not just Singaporean cases), where lawyers have brought unmeritorious 
and frivolous claims to court. Often, these are done by ill-prepared or errant 
lawyers wanting to line their own pockets.

But this article is not referring to such cases. There is nothing unmeritorious 
nor frivolous about doing one's professional best to save a condemned man 
facing death penalty, even when the margin of success is non-existent. To many, 
Yong Vui Kong's case4 was seen as a hopeless case too but we strive on and he 
is alive today. The judiciary and estalishment must also not forget that unlike 
in other commonwealth countries, which have alternative avenues of addressing 
miscarriage of justices through institutions such as National or Regional Human 
Rights Commissions, Parliamentary Ombudsman and other bodies, we have none in 
Singapore except for the Courts.

Hence, it is not abuse of process by any definition. For lawyers who lose sleep 
and sacrifice their billable hours, "legal opportunism" is the last thing on 
their minds. The courts should understand the magnitude and significance of the 
challenge that these brave lawyers bring, often on a pro bono basis, sometimes 
even risking their professional reputation with threats of cost orders and 
disciplinary actions which may ruin their careers. At times, they even bear 
expenses from their own pockets for filing court documents and depositing the 
guarantee amount for the appeal costs of the Attorney-General. Perhaps the Law 
Society as a representative body should take a stand that legal representation 
in last ditch attempts to save lives in death penalty cases should not be 
discouraged and be fettered by disparaging judicial remarks.

Till then, forge forward and a salute to the lawyers who continue to fight 
tirelessly to save the lives of their clients.

(source: M. Ravi; theonlinecitizen.com)






INDONESIA:

Attorney General says next round of executions being planned, will prioritize 
drug criminals


President Joko Widodo brought back the regular use of the death penalty under 
his administration and his time in office has seen 3 rounds of executions and 
the state-sanctioned killings of 18 people, all convicted of drug-related 
crimes. The last round of executions in July ended with 4 convicts killed by 
firing squad while another 10 who were scheduled to die were given last minute 
reprieves, although whether they will still be executed in the future remains 
unclear.

Jokowi gave death penalty opponents some hope last month when he said in an 
interview that the government wanted to move in the direction of abolishing the 
death penalty. But if any such movement is being made, it is evidently not 
stopping Indonesia's attorney general, HM Prasetyo, from preparing for the next 
round of executions.

After a meeting with House Commission III today, Prasetyo confirmed to the 
media that plans were being made and that drug criminals were still being 
prioritized for the firing squad.

"As for [the next round of executions] we are still prioritizing drug 
[criminals], yes, that is our first priority," Prasetyo said as quoted by 
Detik.

Prasetyo would not give any sort of timeframe for when the next round of 
executions would take place but said that they would take place at the right 
time when "everything is ok".

When pressed on whether the executions would take place before the end of the 
year, the attorney general only said that the executions were not a pleasant 
thing but it had to be done to move the country forward.

Prasetyo's vagueness in discussing the next round of executions is in line the 
government's approach to the previous round in which they attempted to keep 
details of the executions quiet until close to the actual date in order to 
prevent a large international outcry. But it may also mean that the next 
executions are still largely theoretical at this point and the president is 
actually rethinking his approach to capital punishment.

There is reason to believe that President Joko Widodo has reconsidered his 
stance on the death penalty. Former president Bacharuddin Jusuf Habibie, a 
strong opponent of the death penalty, personally appealed to Jokowi to spare 
the life of Pakistani citizen Zulfiqar Ali, who Habibie said is likely innocent 
of the crimes he was charged with. Many believe Habibie's appeal to have been 
effective in getting Jokowi to call off the executions that day.

(source: coconuts.co)