April 2
EUROPEAN UNION/EGYPT:
EU criticizes Egypt's mass death sentences
Egypt's Foreign Minister Nabil Fahmy faced criticism against his country for
the death sentences issued to 528 people by the Egyptian Court.
Fahmy spoke at the European Parliament Foreign Affairs Commission on Tuesday
during his visit to Brussels.
Mario David, Portuguese member of the European Parliament, asked how a
presidential candidate could act as such while hundreds of people have been
given a death sentence.
Spanish lawmaker Jose Ignacio Salafranca said human rights should be a focus in
Egypt's transition to democratic stability.
However, Fahmy said the 528 people sentenced to death have not yet received
their final verdict adding "the death penalty is part of our law."
A parliament has to be formed in order for the law to be amended, according to
Fahmy, who said his country is working on creating an open society.
(source: Anadolu Agency)
KENYA:
TI Kenya Opposes Death Penalty Against The Corrupt
Transparency International Kenya says it is opposed to plans by Kiharu Mp
Irungu Kang'ata to amend the Anti Corruption and Economic Crimes Act to impose
death penalty on those found guilty of corruption.
TI Kenya Executive Director Samuel Kimeu has instead proposed the strengthening
of justice system to ensure there are no gaps that the corrupt can use to
escape justice.
Kimeu has also urged the MP to drop his plans and engage the institution on how
the fight against corruption should be strengthened.
Kiharu MP Irungu Kang'ata had earlier on written to National Assembly Speaker
Justin Muturi seeking to amend section 48 of the Anti Corruption and Economic
Crimes Act to have those found guilty of corruption handed the death sentence.
Kiharu also indicated that the sentence should be handed to persons who are
convicted of corrupt acts where the loss of public funds exceeds Sh1 billion.
(source: Citizen News)
INDIA:
When the courts legislate and execute
Our fundamental rights are the conscience of the Constitution. Every legal
right stems from our ability to retain the integrity and the structure of our
Constitution
In 1973, a Bench comprising 13 Supreme Court judges ruled by a majority that
Article 368 of the Constitution "does not enable Parliament to alter the basic
structure or framework of the Constitution." The Court ruled what has come to
be known as "the basic structure" doctrine - a judicial principle that the
Indian Constitution has certain "basic features" that cannot be altered or
destroyed through amendments by Parliament. Paramount among these are the
fundamental rights guarenteed by the Constitution.
Only 2 years later, the Allahabad High Court found the then Prime Minister
Indira Gandhi guilty of electoral malpractices. Justice Jagmohan Lal Sinha
invalidated Mrs. Gandhi's win and barred her from holding elected office for 6
years. The decision caused a political crisis in India that led to the
imposition of the Emergency by Mrs. Gandhi's government from 1975 to 1977.
The best of times
During the Emergency, Mrs. Gandhi altered the election law retroactively by the
39th amendment to the Constitution. Article 329A was inserted to void the
Allahabad judgment. The retroactive, undemocratic, and politically motivated
legislative enactment validated an election. The amendment secured her position
and prevented her removal from Indian politics. Later the enactment was
successfully challenged in the light of the 1973 ruling and Article 329A was
struck down. The Judiciary curtailed autocratic politics - a stitch in time
saved 9.
Our fundamental rights are the conscience of the Constitution. This right, and
every other legal right, stems from our ability to retain the integrity and the
structure of our Constitution.
There is a hard learnt, intellectual history to this legal inheritance. The
principal of the basic structure of the Constitution is enshrined in Article 79
(3) of the Basic Law for the Federal Republic of Germany. The German
constitution was drafted between 1948-49, in the immediate shadow of its Nazi
past. During the drafting sessions, the Weimar constitution came under immense
scrutiny by German jurists and scholars, who investigated the document at great
length. The Constitution's broad powers to suspend civil liberties, coupled
with an insufficient system of checks and balances, presented a structural
opportunity for Adolf Hitler to seize power and preside upon an authoritarian
democracy.
In the 19th century, there were many who mocked Montesquieu for his fear of
political power and for his cautiously articulated theory of separation of
powers. The doctrine of separation of powers took a particular view of men and
power. It assumed that power corrupts. In the Constitutional Assembly Debates,
while discussing the fundamental rights, Dr. Ambedkar expressed similar
sentiments. "I myself cannot altogether omit the possibility of a Legislature
packed by party men making laws which may abrogate or violate what we regard as
certain fundamental principles affecting life and liberties of an individual.
At the same time, I do not see how 5 or 6 gentlemen sitting in the Federal or
Supreme Court could examine the laws made by the Legislature and by dint of
their own individual conscience or their bias or their prejudices can be
trusted to determine which law is good and which law is bad." Separation of
powers is indispensable because under the Constitution, power divides itself so
that reason can rule.
And the worst of times
In January this year, in the matter of Judicial review of Pardon power, the
Supreme court in Shatrughan Chauhan & Anr. vs Union Of India & Ors. overstepped
its constitutional power and duty and exercised the sovereign power of
clemency, which it never possessed. The three-judge Bench, in its unprecedented
authority, commuted a sentence of death to life for 15 persons on the singular
ground of delay. The decision egregiously disregarded previous judgments laid
down by the 5-judge Bench of the Supreme Court. The Supreme Court has the
appellate power to reduce a death penalty in regular appeals. However, it has
never possessed such powers to exercise the remission or commutation while
exercising the judicial review of clemency power.
Protection of our fundamental rights remains paramount and the Judiciary can
and must curb acts of excess, and ensure checks and balances. However, the
protection of our fundamental rights itself never empowered the Supreme Court
to either legislate or to execute. The decision in the Shatrughan Chauhan case
has been widely and wrongly heralded as a decision in support of human rights,
while squarely forgetting the Judiciary's infringement of the cardinal
principles of separation of powers. The Judiciary cannot revolt against the
Constitution, but only on its behalf.
The errors in the Shatrughan Chauhan decision brought forward the case of 3
convicts - Murugan, Perarivalan and Santhan - in the Rajiv Gandhi assassination
case before the consideration of the Supreme Court. These commutations were
ordered on the same grounds as Shatrughan Chauhan & Anr. vs Union Of India &
Ors. After commuting the death sentence to life imprisonment for these
convicts, the court rendered an unsolicited legal opinion that was neither
pleaded nor argued by the petitioners (para 31 of the judgment).
The judgment erroneously declared the power of the State government under the
Criminal Procedure Code, to exercise remission of "life sentence" to "no
sentence," and enabled the release of the convicts. In Krishta Goud & Bhoomaiah
vs State of Andhra, the Supreme Court Bench presided over by Justice V.R.
Krishna Iyer stated with clarity: "As Judges, we cannot rewrite the law
whatever our views of urgent reforms, as citizens, may be." When the State
government's decision was challenged by the Union of India in the Rajiv Gandhi
assassination case, P. Sathasivam, Chief Justice of India stated: "We are
responsible for this problem. We will solve it."
The Tamil Nadu government taking political advantage of the "Tamil sentiments"
in view of the coming election, exercised the remission power purely for
political consideration, and demanded that the Centre act within 72 hours.
Electoral politicking that appeals directly to mass sentiments, ethnonational
affinities and sympathies, without institutional and social checks and
balances, erodes the very foundation of our rights. The Tamil Nadu government's
decision to release the prisoners might create short term electoral victory,
but it will further entrench a culture that places politics and emotional
appeasement above governance and the rule of law.
In a country governed by a written Constitution, the democratic right flows
from the attribute of constitutional sovereignty. We cannot claim our
fundamental right or any other legal rights, unless we retain the structure of
our sovereignty. In the 1970s, when faced with gross violations of the
country's democratic structures, the Supreme Court stepped in, limiting the
power of both the Legislature and Executive. Our Constitution is our act of
revolution and the Judiciary its protector. Today when the same Judiciary
oversteps its limits, it is indispensable that the decision is corrected,
reviewed and reversed by a larger Bench.
(source: Opinion...Suchitra Vijayan was trained as a Bar-at-Law; The Hindu)
*****************
Govt Seeks Death Penalty for TP Murder Case Accused
The state government on Tuesday approached the Kerala High Court seeking to
award death sentence to 11 accused persons, including CPM local leaders, in the
murder of RMP leader T P Chandrasekharan.
The Kozhikode Special Additional Sessions Court had awarded life imprisonment
to all 11 accused persons.
In the appeal, Special Public Prosecutor C K Sreedharan submitted that the
lower court ought to have awarded death sentence for the offences proved
against the accused, holding that the case is one falling in the rarest of rare
category.
The court had sentenced M C Anoop, Manoj Kumar alias Kirmani Manoj, N K Sunil
Kumar alias Kodi Suni, T K Rajeesh, K K Mohammed Shafi, Annan Shijith and K
Shinoj to life imprisonment.
They were found guilty under IPC sections 302 (murder), 143 (unlawful
assembly), 148 (rioting, armed with deadly weapons) and 149 (unlawful
assembly). K C Ramachandran, the 8th accused and CPM Kunnummakkara local
committee member, Manojan alias Trouser Manojan, the 11th accused and former
CPM Kadungapoyil branch secretary, and P K Kunhananthan, the 13th accused and
CPM Panur area committee member, who were found guilty under IPC section 120B
(criminal conspiracy) and 302 (murder), were awarded life imprisonment and a
fine of `1 lakh each. The state sought to enhance the life sentence awarded to
them. The state also sought maximum punishment for 31st accused Lambu Pradeep.
The special court had awarded a 3-year jail term to Lambu Pradeep for causing
disappearance of evidence.
The state submitted that the lower court failed to appreciate the evidence in
its true perspective while awarding punishment to those accused found guilty of
the offences charged against them.
The court failed to appreciate the fact that the gruesome murder was a
pre-planned, cold-blooded and dastardly act. It was proved through the evidence
that elaborate preparations had been made to commit the murder by the culprits
due to political animosity.
(source: New Indian Express)
IRAN:
At least 25 women executed in 1 year
The Iranian regime has executed at least 25 women in the past Persian year that
ended on March 20. The true figure of execution carried out in Iran is much
higher than those announced in state-run media.
The highest number of women were executed in the main prison in north western
city of Orumiyah.
Most of the women have been executed for drug related charges, however, the
charges of some of the women remain unknown.
Presently, over ten women, mostly under 30 years old are on death row in a
prison in Varamin (southwestern Tehran).
The prisoners in Varamin include Rayhaneh Jabbari, 26. She has been imprisoned
for the past 7 years.
Jabbari, a decorator was forced to defend herself against the MOIS agent who
attempted to assault her. The scuffle led to the death of the MOIS agent.
(source: NCR-Iran)
TANZANIA:
CA urged to remove capital punishment
Legal and Human Rights Commission (LHRC)Anti-Death penalty campaigners are
urging members of the Constituent Assembly not to incorporate Article 72 (1) K
that empowers the President to endorse Death Penalties which they say
suppresses the fundamental human right, the Right to Life.
Johson Mbwambo, a lawyer with the Legal and Human Rights Commission (LHRC) made
the call yesterday in Kahama during a session of the ongoing LHRC Big Bang
Campaign meant to educate the public on details of the Second Constitution
Draft.
Voicing the anti-death penalty campaigners' suggestion, Mbwambo said that death
sentences should be overturned to life imprisonment with hard labour and
revenue so generated is to be handed over to the victim's family.
Commenting, a resident of Kagongwa in Kahama, Ibrahimu Gosia said instituting
capital punishment is a manifestation of a broken legal system because it
assumes perfection of the judiciary system yet reality is that mistakes are
made cases are manipulated and innocent people are sentenced to die.
"I suggest that there be alternative stern punishments but not the capital
punishment," suggested Gosia who however did not offer what punishment would
equate to a death penalty.
Another concerned individual is Valerian Paulo Kessy, a businessman also in
Kagongwa, Kahama seconded the previous speaker saying capital punishment is to
be abolished with immediate effect and now that the constitution is under
review, it is the optimal time to take decisive action against it.
"Convicting one to die amounts to condemnation yet the legal system is flawed
so we may very well be killing innocent people with no chance of revoking the
sentences," Kessy lamented.
Tanzania still retains the capital punishment even though the last time the
death penalty was carried out was a decade ago in 1994. Anti-death penalty
campaigners have raised concerns over both the 1st and 2nd Constitution draft
which both retain the penalty.
The content in the Constitution Draft comes as a case to challenge the legality
of the capital punishment lags at the High Court of Tanzania.
At the moment, there is a case with the High Court of Tanzania challenging the
law and was filed by the LHRC in collaboration with the Tanganyika Law Society
and the Southern Africa Human Rights (SAHRINGON) Tanzania Chapter.
Also, corruption running rampant in the country, the Constituent Assembly has
been faulted for its failure to incorporate an anti corruption section in the
first and also in the second draft constitution.
LHRC is conducting a country wide campaign to educate the public on the second
constitution draft in what has been dubbed, the Big Bang campaign through which
media publications including CDs and DVDs for the deaf as well as flash disks
and memory cards recorded with the details of the draft are distributed free of
charge.
(source: The Guardian)
INDONESIA:
Support moratorium on Islamic death penalty
Is the application of qisas, the death penalty in Islamic law, still relevant
today? The issue has been raised once again, as dozens of Indonesian migrant
workers, including Satinah, face the threat of execution in Saudi Arabia.
Like Satinah, they may be saved if they pay compensation (diyat) as demanded by
the families of their victims. But this compensation mechanism is not always
effective in saving someone from the death penalty.
The qisas is explicitly referred to in the Koran. This lex talionis (an eye for
an eye legal code) is not unique to Islam, as it had existed in Jewish law and,
well before that, in the code of Hammurabi the king of Babylon.
The Koran states that a qisas does not function as a death penalty per se;
rather it should "give life" (walakum fi al-qisas hayah). Therefore, the qisas
is intended as a deterrent effect and, therefore, a "life given" to others,
though so far it hasn't seemed to be every effective in Saudi Arabia.
The main problem is whether the workers who are convicted of killing their
employers meet the requirements of being punished by the qisas.
A number of scholars in the kingdom have said the qisas verdict for many
migrant workers charged with such crimes is unfair, as it seems many of the
killings took place under tremendous pressure on the defendants and were,
therefore, more akin to self-defense.
Nevertheless, the criticism does not invalidate the existence of the qisas
itself.
In conservative Islamic jurisprudence or fiqh, not every claim of self-defense
is accepted as eliminating the qisas punishment.
If someone is driven to kill another because the latter has threatened his
life, such as a terrorist, a rebel, robber and so on, then the killer is not
exposed to the qisas penalty.
Such self-defense in a life-threatening situation, or daf al-sha'il, is made on
the grounds that, among other things, (1) there is no other alternative to
protect oneself except by killing the other, and (2) that the killing was
commensurate with the level threat.
But the above definition of self-defense still depends on whether the facts and
evidence presented in court meet the principle of fairness, which is the spirit
of qisas. Thus, the qisas can still be imposed in the event that, say, a
migrant worker's act of murder is judged to have exceeded the level of threat
from her employer.
Here lies the problem of conservative fiqh, which contains fewer discussions
about the limits of justice. Justice is the universal substance of all Islamic
legal dictums. The Koran mentions in many verses the commands of justice ('adl,
qisth, qisthas). Thus, the execution of qisas should not injure the sense of
justice.
What is lacking in conservative fiqh is the philosophical study of the limits
of justice, especially since the meaning of justice changes through different
eras. Nowadays, the wish for an end to the death penalty is loudly voiced by
human rights activists.
Within the spirit of justice, the qisas should therefore be replaced with other
forms of punishment. In fact, there are many Muslim-majority countries that do
not apply qisas. Saudi Arabia, however, prefers a literal interpretation of
Koranic text, and so it is hard for human rights discourse to penetrate
clerical authority there.
Another criticism of qisas is proposed by Tariq Ramadan, a renowned professor
at Oxford University, with his call for a "moratorium of the death penalty".
He says most scholars in the Islamic world today have concluded that the death
penalty (either qisas for murder or stoning for adulterers) is "almost never
applicable". Criminal sanctions (hudud) in the form of the death penalty,
according to Ramadan, should function as a deterrent.
That is, if the purpose of the prevention of murder by qisas has not been
effective, then it should not be applied.
Ramadan's study revealed that qisas was more often applied to those who were
weak, members of minorities, and those who were marginalized - and rarely
imposed upon the economically strong or those close to the ruling elite.
Inequality and the frequent abuse in the application of qisas today, according
to Ramadan, had become the social context that could annul, or suspend, the
application of qisas; hence, his call for the moratorium.
This desire for a moratorium of qisas should be continuously voiced toward
Saudi Arabia - especially given the widespread reports of abuse against our
workers and the unfair application of justice in the kingdom.
(source: Opinion, Azis Anwar Fachrudin ---- The writer teaches at the Nurul
Ummah Islamic boarding school in Yogyakarta)
GHANA:
AI Ghana Launches 2013 Global Death Penalty Report
The Global Death Penalty Report 2013 was, yesterday, launched in Accra with a
call on governments who still killed in the name of justice to impose a
moratorium on the death penalty with a view to abolishing it.
In a statement issued by Amnesty International, Salil Shetty, Secretary-General
of Amnesty International, noted that despite the setbacks in 2013, there had
been a steady decline in the number of countries using the death penalty over
the last 20 years and that there was progress in all regions last year.
Ms Shetty said 27 years ago, 37 countries actively implemented the death
penalty, but that the number had fallen to 25 by 2004 and was at 22 in 2013,
with only nine of the world's countries applying the death penalty year-on-year
for the past 5 years.
Presenting an overview of the report, Mr Lawrence Amesu, Director of Amnesty
International Ghana, disclosed that at least 778 people were executed in 22
countries worldwide in 2013 as against 682 in 21 countries in 2012, with China
continuing to execute more people than the rest of the world put together.
Mr Amesu said the report classified China, Iran, Iraq, Saudi Arabia and the
United States of America (USA) as the top-five highest executing countries in
2013, with China leading the group with more than 1,000 (unconfirmed
executions).
He said the report also classified China, Iran, Iraq, Saudi Arabia, USA, Yemen,
Sudan, Bangladesh and North Korea as the nine persistent executioners or 'The 9
Worst Offenders' as they were known to execute every year since 2007 to 2013.
He said, according to the report, no executions were reported in Singapore,
while several death-row prisoners had their sentences commuted in that country
in 2013.
The report, he said, indicated that the Pacific sub-region continued to be a
virtually death penalty-free zone, despite threats from Papua New Guinea to
resume executions.
According to the report, he said, for the 1st time since 2009, Europe and
Central Asia was an execution-free zone, with the only country still clinging
to the death penalty being Belarus, although that country did not put anyone to
death in 2013.
The report, he said, condemned the execution of 3 people in Saudi Arabia for
crimes they committed when they were less than 18 years of age as a violation
of international law.
In a statement, the European Union (EU) Ambassador and Head of the EU
Delegation in Ghana, Mr Claude Maerten, said the EU had a strong and principled
position against the death penalty and that the abolition of the death penalty
worldwide represented one of the main objectives of the EU's human rights
policy.
Mr Maerten said the EU was opposed to capital punishment under all
circumstances and had, therefore, called for the death penalty, where it
existed, to be progressively restricted and carried out according to
international minimum standards.
The EU, he said, was, therefore, a leading institutional actor and lead donor
to the efforts by Civil Society Organisations (CSOs) across the globe in the
abolition of the death penalty.
He disclosed that the EU, through the European Instrument for Democracy and
Human Rights (EIDHR), had, since 2007, allocated 20 million Euros to over 25
projects worldwide.
Mr Maerten said in the framework of the 2011-2013 EIDHR, 7 million Euros had
been allocated to 9 new abolitionist projects.
He described as encouraging the fact that no individual had suffered the death
penalty in Ghana since 1993, even though the death penalty still remained on
the country's statutes.
He expressed the hope that well-meaning Ghanaians and CSOs would contribute to
the creation of awareness about the demerits of the death penalty as a form of
punishment in order for the people to vote to abolish it in the referendum
recommended by the Constitution Review Commission.
Mr Maerten also commended Amnesty International for the front line role it had
played in the campaign against the death penalty.
(source: spyghana.com)
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