Oct. 18
INDIA:
Same old question: Shall we abolish death penalty? -- Not so much legal or
constitutional, its sociological
The hangmans noose is again in the news - thanks to the front-page of The
Indian Express (October 17). But it has long been on the conscience of
legislators, of judges, and of the thinking public, and also (it would
appear) on the conscience of President Kalam: his humane stand has a
stirred up a controversy. It needs stirring up. The truth is that the
death penalty is not so much a legal or a constitutional issue, as a
sociological one. It evokes divergent responses in different peopleand
judges, being human, are no exception: nor are Presidents. There are the
abolitionists, and the anti-abolitionists.
In India there has always been a cleavage of opinion. For some (as with
our President), it is a matter of conscience. I remember my senior, (Sir
Jamshedji Kanga) telling us in the 1950s about a senior District Judge,
Mr. Khareghat, who was due to be elevated to the Bombay High Court. In
those days the capital sentence could only be imposed by a High Court
Judge. Khareghat declined the honour on the ground that he would never be
a party to the death sentence: he would rather not be a High Court Judge.
(That is why we remember the name of that District Judge!)
The abolitionists have a strong lobby. Recent events in various countries
(especially in the developing world) have driven many to the conclusion
that murder will never cease to be an instrument of politics until the
execution even of proved murderers is regarded as immoral and wrong. In
the world of today there are fewer and fewer men condemned to death for
murder, and more and more executed for political views.
As long as death remains a permissible instrument of Government, those in
power will always justify its use. Besides, (and this is a particularly
pertinent point) the hangmans noose ends the search for truth - what if
the judge is wrong? The question plagues our consciences. Judgments of
Courts can always be recalled and reviewed; execution of sentences of
death, never.
I recall what Niall Mardermott, distinguished Secretary General of the
International Commission of Jurists, said whilst conveying to the then
President of India, ICJs plea for mercy for Kehar Singh (one of Mrs.
Gandhi's assassins) in the country of my birth (the Republic of Ireland)
there is a saying that the grass never grows under the gallows. But
President Venkatraman had already made up his mind - and Kehar Singh was
hanged.
The main plank of the anti-abolitionists is that the death sentence has a
deterrent effect - not by the fear of death, but exciting in the community
a deep feeling of abhorrence for the crime of murder. I remember in 1973
when Jagmohan Singhs case was being argued, (where the constitutionality
of the death penalty was first upheld) Chief Justice Sikri said, in the
course of arguments, that he was certain that if the death penalty were
abolished, entire villages in the Punjab would be wiped out in a wave of
reprisals! He had been the Advocate-General of that State for many years.
Other Justices from this State and other border States have expressed
similar views. How can a deep feeling of abhorrence of the death penalty
be sustained, (say the anti-abolitionists), when known and hardened
criminals sentenced to imprisonment for life, are set free through paroles
and remissions after only a few years of incarceration? They have a point.
What then of the future? In the Oliver Wendell Holmes Lectures delivered
in September 1981, Justice Brennan said: I believe that a majority of the
Supreme Court will one day accept that when the State punishes with death,
it denies the humanity and dignity of the victim... That will be a great
day for our country and our Court. He was speaking about the United States
and its Supreme Court of which he was a distinguished member.
There are many in this country who would like to see the Supreme Court of
India utter similar sentiments. Perhaps, hopefully, one day, it will - but
I venture to predict it will only be when the system of criminal justice
effectively ensures that persons who would have hanged but for the
constitutional outlawing of capital punishment (like persons guilty of
horrendous murders) would not return to society until reformed. Till then,
the great question will continue to haunt us all (as it haunts our
President): is it really necessary to hang people in order to convince
people that killing people is wrong?
(source: India Express)
IRAQ:
SPIEGEL INTERVIEW WITH SADDAM HUSSEIN'S ATTORNEY----"No Iraqi Judge Will
Impose the Death Penalty"
Saddam Hussein's defense attorney, Khalil al-Dulaimi, discusses the trial
of the former dictator, which is slated to begin on Wednesday in Baghdad.
SPIEGEL: The trial of Saddam Hussein opens on Wednesday. Do you expect it
to last long?
SPIEGEL: You intend to argue for an adjournment to gain more time?
Dulaimi: Yes. The entire proceeding is a farce. Nothing is occurring
according to procedure. We did not receive any official documents until
September 25. This is a dramatic violation of Iraqi laws. There is still a
great deal to be done. Witnesses must be heard and valid charges must be
brought. Most importantly, the security of everyone involved must be
guaranteed. The problem is: Who can guarantee security in Iraq today?
SPIEGEL: What will you do if the trial begins despite your objections?
Dulaimi: Although I am aware that this is not as much a criminal trial as
a political process, I cannot imagine that the Iraqi judges will give in
to pressure by the US occupiers.
SPIEGEL: When was the last time you saw Saddam?
Duleimi: A few days ago. He seems very composed, and he's in full
possession of his intellectual capacity. He continues to consider himself
the president of Iraq.
Khalil al-Dulaimi, 40, is a Sunni from troubled Anbar province in western
Iraq. Before the American invasion, he was a member of the Baath Party and
a legal advisor in the Iraqi Ministry of Health.
SPIEGEL: Even though the people have turned away from him and elected a
different president?
Dulaimi: By law, Saddam is still the head of state. The American invaders
and occupiers deposed him and took him prisoner after having destroyed
Iraq. Now they are using the law of the strong to impose their will and
walk all over Iraqi laws.
SPIEGEL: But his judges are Iraqis, not Americans.
Dulaimi: Neither the so-called governing council, which the former
American governor appointed, nor the current Iraqi government are
legitimate.
SPIEGEL: But the new government was the result of free elections.
Dulaimi: As far as I am concerned, the current government also lacks all
legitimacy. Only when all the occupiers have left Iraq will Iraq be able
to truly govern itself.
SPIEGEL: Even if the trial were postponed, Saddam Hussein will likely face
the death penalty sooner or later. What do you plan to do to save the
former dictator's life?
Dulaimi: We will insist that the laws be upheld and we will appeal to the
conscience of the judges.
SPIEGEL: The judges are unlikely to be impressed by such appeals.
Dulaimi: No Iraqi judge will impose a death sentence.
INTERVIEW: VOLKHARD WINDFUHR
Translated from the German by Christopher Sultan
(source: Spiegel)
