[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Dec. 8




INDIA:

Nithari Killings: Death sentence to Pandher and Koli



Special Central Bureau of Investigation Judge PK Tiwari had held them guilty on 
Thursday, saying that they both deserved to be punished since both were 
involved in the crime.

A CBI court in Ghaziabad has awarded death penalty to businessman Maninder 
Singh Pandher and his aide Surinder Koli guilty in the rape and murder of 
housemaid Anjali in 2006.

Special Central Bureau of Investigation Judge PK Tiwari had held them guilty on 
Thursday, saying that they both deserved to be punished since both were 
involved in the crime.

Maninder Singh Pandher has been found guilty in 3 cases - he has been sentenced 
to death in 2.

His aide, Surinder, has also been also awarded death sentence in the 8 cases he 
has been guilty in. Chargesheets were filed against the 2 accused in 16 of the 
19 cases, out of which 9 cases have been decided to date.

(source: ddinews.gov.in)

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New study: Former top judges acknowledge crisis in criminal justice system, yet 
back death penalty----A fascinating new study involving 60 former Supreme Court 
judges brings out the problem of arbitrariness in awarding capital punishment.

Judges, especially those from the Supreme Court, have an aura of infallibility 
around them. They are expected to be objective enforcers of the spirit of the 
law, keeping aside their prejudices. Ideally, they are to be guided by the law 
alone. But there are areas in criminal jurisprudence where objectivity slips 
away and discretion takes over. This can have serious implications, especially 
if the matter involves the question of life and death.

A fascinating new study undertaken by the Centre for Death Penalty and 
published by the National Law University, Delhi, brings out the many 
contradictions that plague the process of awarding the death penalty in India. 
As the debate on whether capital punishment should be abolished rages on, the 
study, which involved interviews with 60 former judges of the Supreme Court, 
has exposed serious flaws in the system and presents a solid argument in favour 
of getting rid of the death sentence.

Many of the judges interviewed agreed to the fact that the criminal justice 
system is broken. That the police resort to all sorts of illegal means to 
ensure a conviction - they torture the accused, plant evidence and abuse laid 
down procedures. A weak legal aid infrastructure means that the accused, 
especially those from weaker sections of society, have no meaningful help to 
challenge these abuses.

More disturbing, however, is the undermining of guidelines the Supreme Court 
put together in determining a fit case for death penalty. This is often 
referred to as the "rarest of rare" doctrine. Responses from the judges in the 
study suggest there was hardly any consistency in how they determined if the 
case was among the "rarest of rare", with socio-economic background, individual 
predilections and how the judges as individuals perceive the brutality of the 
crime often determining the end sentence. Worse, despite the Supreme Court 
itself having rejected public opinion as a guiding principle in awarding 
capital punishment, several judges pointed to the effect the crime committed on 
the public psyche as an important factor in sending the accused person to the 
gallows.

The picture the study paints is this: despite attempts to regulate the award of 
death sentences, arbitrariness in determination is rampant. This leads to the 
next obvious question: if discretion drives decision-making, has the "rarest of 
rare doctrine" failed?

The study

The study, conducted over the last 18 months, interviewed 60 former judges of 
the Supreme Court. In India, any death penalty imposed by the trial court has 
to be confirmed by the High Court. The convict can then approach the Supreme 
Court in appeal. The decision of the apex court is final, keeping aside the 
Constitutional power of the President and Governors to commute the sentence or 
pardon the convict.

The interviews are a fascinating window into the workings of the judges' minds 
when they deal with cases of capital punishment. The 1st part of the study 
involved eliciting the views of the judges about the current state of the 
criminal justice system.

A criminal case typically involves 3 stages: filing of the case and 
investigation, judicial trial, and sentencing, which is essentially the 
awarding of punishment for the crime committed.

The 1st stage depends heavily on the quality of the investigation agencies and 
the law that guides the process. The judges' responses clearly show that the 
police rampantly abuse procedures established by law to successfully prosecute 
those it believes have committed that particular crime.

In the study, 38 of the 39 judges who discussed the use of torture in 
investigations believed that it was rampant. Only one judge, a former chief 
justice of India, said torture did not happen.

12 judges, in some way, justified torture. Of these, 5 said that the police 
resorted to torture because investigation agencies work under strenuous 
conditions, without being given adequate time and independence to do their 
work. 17 judges believed that torture undermined the criminal justice system.

Questions were also posed on the misuse of Section 27 of the Evidence Act. This 
provision allows the admission of a statement the accused person made to the 
police if such a statement led to a fact or evidence. Across the country, the 
police are known to plant evidence to fix accused persons. There have been many 
instances where signatures of the accused have been taken on blank sheets of 
paper and later filled up with concocted stories, which show that the statement 
led to the recovery of evidence such as a murder weapon. 38 judges were of the 
view that investigating agencies abuse this provision. One judge said he was 
not sure if there were any genuine cases under the provision.

These responses clearly show how broken the investigation apparatus is. It is 
startling that the same flawed investigation, which abuses procedures and uses 
brutal methods like torture, is relied upon to confirm a death sentence.

Neetika Vishwanath, who was part of the study, said while there was widespread 
acknowledgement of the problems in the investigation system, this did not have 
much effect on the final sentencing.

"Somehow, when the judges spoke about death penalty, problems with the system 
were not concerns," she said.

There was also an almost unanimous opinion that legal aid in India was 
substandard. The quality of legal representation facilitated through legal aid 
networks was mostly unsatisfactory, these judges pointed out. Some of them had 
headed the legal services authority in their respective states.

This means that a combination of illegal investigation techniques and poor 
legal representation is affecting the system - a fatal flaw especially for 
those from poorer sections of society who do not have the power to challenge 
the might of the prosecuting state effectively.

43 judges acknowledged the existence of wrongful convictions in India. This was 
attributed to improper investigation and substandard legal representation. Some 
judges said the justice system was susceptible to money, power and political 
influence.

Rarest of rare doctrine

But perhaps the most disturbing part of the report are the views of the judges 
on the "rarest of rare" doctrine - the very foundation on which capital 
punishment is determined in India.

The doctrine was developed by the Supreme Court in the 1980 Bachan Singh vs 
State of Punjab case to restrict the number of death penalties. The court put 
in place guidelines for determining whether a particular criminal act deserved 
capital punishment.

The court awarding the sentence is expected to analyse aggravating and 
mitigating circumstances, balance them, preferably in a tabulated form, and 
then make the final decision. The judges have to be sure that the possibility 
of a life sentence is completely foreclosed.

There are several mitigating circumstances. The socio-economic background of 
the convict, age and possibility of reformation are some mitigating factors, 
according to the Supreme Court.

There was also the question of predetermination in the crime committed.

However, the responses from many of the judges in the study showed that the 
brutality of the crime was almost a determining factor in awarding the death 
sentence. Rarest, in that sense, has been construed as the rare nature of the 
crime itself.

13 of the 22 judges who provided detailed responses on this subject recognised 
that the "rarest of rare" doctrine "was subjective to such an extent that it 
has no real standard at all". This meant that it was applied differently by 
different judges.

For example, some judges felt the doctrine was too "offender-centric" and did 
not focus sufficiently on the victims and their families. Crime against women, 
minors, persons with mental instability and national leaders were considered 
some of the aggravating factors. Some forms of crime like terrorism received 
special attention.

Quite stunningly, at least 6 judges said the very concept of "mitigating 
factors" was irrelevant, something that runs contradictory to the Bacchan Singh 
guidelines. Mitigation was seen as an excuse for crime. "Circumstances of the 
criminal can never be an 'excuse' for the crime committed, and that there was 
no real reason to explore such circumstances," the judges said. One judge said 
that trying to determine if a criminal would reform was like "astrology".

There was also a recognition that discretion played a key role in whether 
capital penalty was awarded or not. This discretion was guided by the judges' 
class, cultural and religious background, though the judges were cautious in 
terming this discretion as arbitrariness.

Further, a sizeable number of judges said public opinion mattered. A crime 
became graver depending on the effect it had on the collective conscience. This 
again is in direct violation of the 1980 guidelines, which exhorted courts to 
neglect public opinion and go by the law. There was an acknowledgment that 
media and public pressure played a part in sentencing.

The judges had heard 208 death penalty cases between them in the Supreme Court 
and confirmed 92 death sentences in 63 cases.

(source: scroll.in)








MALAWI:

Malawi Judge calls for scrapping of death penalty



A Supreme Court of Appeal Judge has urged the Community of Saint Egidio in the 
country to continue advocating for the abolition of death penalty in Malawi.

Speaking at the commemoration of day of abolition of death penalty in Blantyre, 
Justice Dunstan Mwaungulu said the Community of Saint Egidio should push for 
abolition of death penalty in Malawi.

"It is therefore my call that Saint Egidio should lobby for the change of this 
law at Parliament, for they are the ones to revoke the law," said Mwaungulu.

He added that the community has lived to stand for the prisoners who are taken 
as sinners.

Mwaungulu cited the Biblical story of an adulterous woman whom people wanted to 
stone to death as per the law but later was saved by Jesus Christ.

Concurring with Mwaungulu, lawyer Alexious Kamangila who is also a member of 
Community of Saint Egidio said the country needs to abolish capital punishment 
that is still in Malawi's penal code.

"Capital punishment has no deterrence as its proponents suggest, acts as a 
legitimization of violence, irreversible yet the system has room for error as 
well as discriminatory as it is more likely to be imposed on the poor," said 
Kamangira.

He further faulted the courts for capital punishment sayings it was "violation 
of the right to human dignity".

The Commitment of the Community of Saint Egidio in the fight against capital 
punishment dates back to 1995 when it began to write prisoners. It is from this 
commitment that Saint Egidio commits itself to advocate for the abolition of 
death penalty.

Later, the community launched a movement for global moratorium in 1998 that was 
endorsed by United Nations (UN).

(source: malawi24.com)