Aug. 12
INDIA:
RAJIV GANDHI ASSASSINATION CASE----SC reserves verdict on states' power to
remit jail terms
A 5-bench Constitution Bench of the Supreme Court on Wednesday reserved its
verdict on state government's power to remit sentences - a question that arose
after the Central Government challenged Tamil Nadu's act of remitting sentences
of 7 people convicted in the assassination of former Prime Minister Rajiv
Gandhi to set them free.
The question of the state's power to remit sentences, one of crucial questions
pertaining authority of the state while dealing with sentences, will lay to
rest constitutional questions that have long gone unanswered.
The bench, which is composed of Chief Justice HL Dattu, Justices FMI Kalifulla,
Pinaki Chandra Ghosh, Abhay Manohar Sapre and UU Lalit, has been listening to
arguments over the case for the past 11 days.
In February 2014, the Supreme Court had stayed the state government's decision
to release three convicts for their role in Gandhi's assassination on May 21,
1991, in Sriperumbudur - Murugan, Santhan and Arivu - whose death sentences
were commuted to life terms. All 3 are currently lodged in the Central Prison,
Vellore.
It had also stayed the release of the other convicts - Nalini, Robert Pious,
Jayakumar and Ravichandran, all of whom are undergoing life terms for their
part in the assassination - citing procedural lapses on part of the state
government.
Of the 7 convicts, V Sriharan alias Murugan, Santhan, Robert Pious and Jaya
Kumar were Sri Lankan nationals while Ravichandran, Arivu, and the female
convict, Nalini, are Indians.
The Central Government, then under the UPA regime, had opposed Tamil Nadu
government's decision on the ground that the state government was not
authorised to take such decisions.
"An issue of such a nature has been raised for the 1st time in this Court,
which has wide ramification in determining the scope of application of power of
remission by the executives, both the Centre and the State. Accordingly, we
refer this matter to the Constitution Bench to decide the issue pertaining to
whether once power of remission under Article 72(by the President) or 161 (by
Governor) or by this Court exercising Constitutional power under Article 32 is
exercised, is there any scope for further consideration for remission by the
executive," the apex court had said while referring the matter to the
Constitution bench.
For one thing, the Bench will also decide whether life imprisonment would mean
jail for life or if a convict has a right to claim remission and whether there
should be a special category of sentences for cases in which death penalty
could be substituted with life imprisonment or imprisonment for a term for more
than 14 years and could be beyond the power of remission.
For another, it will also settle the question of who, between the central and
the state government, has authority over remission - a power enlisted in
concurrent list of Seventh Schedule of the Constitution.
It had said the Constitution bench would decide whether the sentence of a
prisoner, whose death penalty has been commuted to life, could be remitted by
the government.
The bench would also decide whether life imprisonment meant jail term for rest
of the life or a convict has a right to claim remission, it had said.
Last month, the Supreme Court had dismissed a curative petition file by the
Central Government against commutation of death penalty into life imprisonment
of 3 convicts in the case, granting a fresh lease of life to them.
(source: tribuneindia.com)
INDONESIA/AUSTRALIA:
Schapelle Corby made it harder to save Andrew Chan and Myuran Sukumaran
Schapelle Corby's attitude towards Indonesia had made it very difficult for
Andrew Chan and Myuran Sukumaran to win support at the highest levels of the
Indonesian government in their bid to avoid the firing squad.
Former Indonesian constitutional court chief justice Jimly Asshiddiqie, who was
a key player in the anti-death penalty lobby in Jakarta in the lead-up to the
executions on April 29, said the push for Chan and Sukumaran to die had come
from Indonesian President Joko Widodo personally.
In an unprecedented insight into the inner workings of the Indonesian
government, Professor Jimly also confirmed to Fairfax Media that Indonesian
Vice-President Jusuf Kalla had been part of a small group pushing back,
ultimately unsuccessfully, against the executions.
But he said several issues, including the Corby family's reaction to her
clemency, granted in 2012, and her release on parole in 2014, were among the
key negatives in the campaign.
"[Former president] SBY [Susilo Bambang Yudhoyono] once gave clemency to Corby,
and ... she still spoke very badly about Indonesia. She never showed her
thanks, or expressed any thanks to Indonesia," Professor Jimly said. "This
created a very bad impression among the Indonesian public."
After Ms Corby was release on parole in February 2014, her sister, Mercedes,
did an exclusive interview on the Seven Network in which she speculated that
the drugs found in the infamous boogie board bag "could have been from
Indonesia" - suggesting Schapelle was set up.
This gave fuel to an already massive media campaign against Corby's release on
parole.
Another factor weighing against clemency for Chan and Sukumaran was a poll
conducted by Roy Morgan Research for youth radio station Triple J.
Professor Asshiddiqie, one of Indonesia's most senior jurists and respected
human rights lawyers, said this poll was seized upon by Mr Joko to conclude
that "the majority of the people in Australia don't care about the executions -
only the minority gets angry with Indonesia".
"So they think this is only about Abbott's politics, not Australia as a whole
... the [Indonesian] government thinks this is not hurting the people of
Australia, it's only elites, who claim to be popular by misusing public anger,"
Mr Jimly said.
That conclusion had "made the Indonesian government become more strong in their
position".
The poll - based on an SMS sent to Roy Morgan's database of users for the
Triple J Hack program - asked: "In your opinion if an Australian is convicted
of drug trafficking in another country & sentenced to death, should the penalty
be carried out?"
Of 2123 respondents, 52 % tapped "Y" on their phones in response.
Professor Asshiddiqie - whose advocacy on behalf of the condemned men prompted
one Indonesian government minister to suggest he was an Australian spy - also
agreed that Mr Abbott's comment reminding Indonesia of Australia's $1 billion
in tsunami aid was a blunder.
It prompted a sarcastic social media-led campaign in Indonesia to collect
"Coins for Abbott" to return the aid money.
Mr Abbott's comment was "very bad. Better Julie [Bishop]," Professor
Asshiddiqie said. "Julie was more diplomatic".
Professor Asshiddiqie has said lobbying had helped bring about 2 pauses in the
rush to execution - the 1st in March, the 2nd in April - but could not stop it
entirely because Mr Joko was determined.
He also said that despite Australia's blunders, by the beginning of 2015 it was
unlikely that Mr Abbott's government or civil society could have done anything
to change the president's mind.
Mr Joko was under pressure from the anti-narcotics agency and from a popular
push against drug traffickers in general, and pressure from other countries
only increased his determination.
"He would like to show that he is independent," Professor Asshiddiqie said.
"The more he is negatively responded by other countries, the more he stuck to
his point. He is Javanese."
Professor Asshiddiqie has suggested a number of ways in which Indonesian law
could move away from the death penalty, including the use of provisions in
Islamic tradition.
(source: Sydney Morning Herald)
BANGLADESH:
Death sentence for a Razakar in Bangladesh
A commander of the Razakars, an armed auxiliary force of Pakistani troops
during Bangladesh's 1971 liberation war, was handed down the death penalty on
Tuesday while another from the notorious militia group was sentenced to life by
a court in Dhaka for genocide and war crimes.
Sheikh Sirajul Haque alias "Siraj Master" was given the death penalty with the
chairman of the 3-member International Crimes Tribunal 1 Justice Enayetur Rahim
pronouncing the verdict.
Haque would be hanged to death or shot down as he was found guilty on 2 charges
of genocide and 3 of crimes against humanity, the judge ruled.
Lawyers and legal experts said according to Bangladesh's penal code, convicts
sentenced to death are hanged by the neck but the special tribunals could also
order war crimes convicts to be executed by firing squads since they are being
tried under a special law. Justice Rahim said 5 of the 6 charges brought
against Haque was proved beyond doubt and he deserved no punishment other than
the death penalty for the gravity of crimes he had committed.
The tribunal also sentenced fellow convict Khan Akram Hossain, a member of the
Razakar force under Haque's command, to imprisonment until death for his role
in the killing of about 50 people in south-western Bagerhat district in 1971.
Haque and Hossain, both in their 70s, faced the trial in person, and were
present in the dock as the judgement was read out.
A 3rd accused was also being tried along with the duo, but charges against him
were dropped as he died a natural death midway into the trial.
Since Bangladesh launched the war crimes trial, the 2 special tribunals, set up
by Prime Minister Sheikh Hasina's secular government in 2010, have handed down
death penalties to over 15 people.
About 3 million people were killed by the Pakistani Army and their
Bengali-speaking collaborators during the country's liberation war.
(source: The Asian Age)
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