Nov. 25
INDIA:
Do the December 2012 gangrape convicts really deserve the death
penalty?----Supreme Court's amicus curiae points out the pitfalls of a
collective punishment for murder in the absence of any evidence of
premeditation.
If the December 2012 Delhi gang-rape roiled the nation like no other case and
even led to legal reforms, it was surely due to the brutality of the violence
suffered by the victim, who has widely come to be known as Nirbhaya. What has
not however been judicially established is the identity of the 1 out of the 6
accused persons on the bus who had actually inflicted the fatal injuries with
an iron rod.
This gap in the narrative has been flagged by the Supreme Court's amicus
curiae, senior advocate Raju Ramachandran, while providing an independent
appraisal of the death sentence pronounced by the lower courts on the 4
convicted persons in the 2012 Delhi rape case.
In his written submissions earlier this month, Ramachandran raised a host of
procedural and substantive issues questioning the order of sentencing by the
trial court in 2013 and the confirmation of the death penalty by the Delhi high
court in 2014.
One of the substantive issues is that in the sentencing process, those 2 courts
did not take into account this mitigating circumstance in favour of all the
convicted persons: "that there was no attribution of individual role with
respect to the use of the iron rod".
Objecting to the idea of sentencing the convicted persons in a "collective"
manner, Ramachandran said: "It may be pertinent to note that the use of the
iron rod was a crucial consideration in convicting the accused under section
302 (for murder) and also in determining the brutality of the crime." He even
cited Supreme Court precedents rejecting the death penalty "for lack of
attribution of specific roles".
Exception - not the norm
Significantly, this is the 3rd high-profile case in which Ramachandran came out
in the apex court against the death penalty. The earlier ones were about the
hanging of Ajmal Kasab for 26/11 and Yakub Memon for Bombay blasts.
Ramachandran's stand in the latest case is also in tune with the reservations
to the death penalty expressed by scholars and women's groups before the
Justice JS Verma Committee, which had been set up in the aftermath of the 2012
Delhi rape case to tighten the provisions relating to sexual crimes.
The most telling precedent cited by Ramachandran to buttress his arguments
against the death penalty in the case is the 1953 Supreme Court verdict in
Dalip Singh vs State of Punjab. This belongs to the era when the courts,
governed by the criminal law of colonial vintage, were justified in awarding
death penalties as a matter of course. For the 1898 Code of Criminal Procedure
required that if the court refrained from awarding death for an offence
punishable with death, it would have to give reasons why the death sentence was
not passed. It was only subsequent to the 1953 Dalip Singh verdict that
Parliament reversed the law to stipulate that for offences punishable with
death, the court shall give special reasons for awarding the death penalty.
Yet, while deciding the Dalip Singh case prior to the liberalisation of the
criminal law, the Supreme Court held that the failure of the lower courts to
ascribe an individual role to the accused was a reason for setting aside the
death penalty. This, the amicus curiae in the 2012 Delhi rape case, has
interpreted to mean that "surely, under the new code when life imprisonment is
the norm and death the exception - the lack of individual role must be a major
mitigating circumstance".
Planned and premeditated?
On another substantive issue, Ramachandran said that there was no evidence on
record "to demonstrate that the rape and murder of the victim was planned and
premeditated." According to him, the testimonies of neither her male friend who
was with the young woman on the fateful bus journey nor the previous male
victim who had been robbed and thrown out by the same accused persons suggest
any premeditation. "The accused never knew the victim or had any occasion to
believe that she would be present at the relevant spot on the fateful day,"
Ramachandran added.
In the written submissions that otherwise steered clear of the merits of the
conviction of the four accused persons, this was as close as Ramachandran could
get to challenging the finding of conspiracy in the case. So does his critique
of the death sentence in the 2012 Delhi case necessarily mean that the 4
convicted persons should have instead been awarded a life sentence, subject to
the usual remission after a term of 14 years? For all his opposition to the
death penalty, Ramachandran conceded that the prospect of a 14-year
incarceration for the guilty in the 2012 Delhi rape case might be inadequate.
He pointed therefore to the 3rd option for sentencing created by the Supreme
Court in 2008, to bridge the gap between the death penalty and a 14-year
imprisonment. It's the option under which the Supreme Court or the high court
fixes a term greater than 14 years or even specifies that the imprisonment
would be for the remainder of the life of the convicted person.
Some of the insiders connected with the prosecution side admitted that although
two consecutive courts had upheld the conspiracy charge, there was no evidence
that the crime was premeditated. Since the victim's friend had been pinned down
in the front portion of the bus, he could not see who exactly had assaulted her
with the iron rod in the rear portion. If the conspiracy provision was still
invoked, it was because in the absence of any eyewitness account attributing
specific roles, that was the strategy adopted by the prosecution to establish
liability for the murder. As a corollary, all the conspirators were rendered
liable for the actions of each other, thereby relieving the prosecution of the
burden of attributing specific roles. It remains to be seen whether the Supreme
Court will uphold this odd proposition of a conspiracy having been executed
without any evidence being adduced of premeditation.
On the other hand, even if the Supreme Court does not accept its amicus
curiae's submissions, the questions raised by them may serve as an opportunity
to sensitise people to the exacting standards that a death sentence has to
meet. For even in a case as egregious as the 2012 Delhi gang-rape, there could
well be, from an independent perspective, mitigating circumstances which
require the convicted persons to be spared the noose.
(source: Manoj Mitta; scroll.in)
PAKISTAN:
2 murder convicts handed death penalty
Anti-Terrorism Court here on Thursday sentenced 2 persons to death for killing
a person in 2015, who had refused to pay them 'bhatta'.
The court found both Shoaib Qadri and Syed Imran Ali guilty in the murder of
Hassan Khoso, who had sustained critical gunshot wounds after the assault and
died in the hospital.
In another case of possession of illegal weapons, the court sentenced Qadri and
Ali to 7 years in jail.
The 2 were also ordered to pay Rs200,000 fine each in a murder case and
Rs50,000 fine each in the case of possessing unlicenced weapons.
According to A-Section police station, 5 persons had been nominated in the FIR,
but 3 of them, Noman, Sadiq and Babul were absconders.
(source: The Nation)
IRAN----executions
Northern Iran: 7 Prisoners Executed
According a report by the Iranian state-run news agency Jame Jam,2 prisoners
were hanged in the Gilan province (northern Iran) on murder charges. The report
does not mention the identities of the prisoners or the exact location or date
of the executions.
The human rights news agency HRANA has reported on the execution of four
prisoners at Karaj Central Prison (Alborz province, northern Iran) on drug
related charges. According to the report, the executions were carried out on
Thursday November 24. The names of the prisoners have been reported as Mohsen
Jamali, Yasser Kavyani, Davoud Totalzehi and Asef Mohammad Saeedpour. Mr.
Totalzehi and Mr. Saeedpour were reportedly Baluch citizens.
The Kurdistan Human Rights Network has reported on the execution of a prisoner
at Mahabad Prison (West Azerbaijan province, northwestern Iran) on drug related
charges. According to the report, the prisoners name is Jamshid Tahami and he
was executed by Iranian authorities on Thursday November 24. Mr. Tahami was
reportedly detained in prison for three years prior to his execution.
Iranian official sources, including the media and Judiciary, have been silent
about the executions in Karaj Cenral and Mahabad prisons.
(source: Iran Human Rights)
JAPAN:
Man sentenced to death over 2 murders in Shizuoka
The Shizuoka District Court on Thursday sentenced a 64-year-old man to death
over the 2012 murders of a dried fish store owner and one of her employees
before robbing the store of money.
In a case without solid evidence such as a murder weapon, Kimiaki Hida, a
former employee of the store, had maintained his innocence from the time of his
arrest. His lawyers said they will appeal the decision.
In handing down the ruling, Presiding Judge Chie Saito said, "Circumstantial
evidence strongly suggests the defendant was the murderer."
The death penalty for Hida is "unavoidable," the ruling said, calling his crime
"an inhumane and cruel act."
The court ruled that Hida stabbed store owner Takako Shimizu, 59, and
71-year-old employee Keigoro Obuchi, and trapped them inside a freezer in the
store setting the temperature at minus 40 C on Dec. 18, 2012, before leaving
them to bleed to death.
Hida stole around 320,000 yen ($2,833) from the store, according to the ruling.
Hida told the court that he did visit the shop on the day of the incident to
"ask to be rehired." But he said that "once I saw the 2 in a pool of blood
inside the store, I ran away because I thought I would be the suspect."
The ruling said according to circumstantial evidence presented by public
prosecutors, Hida stayed in the store at least 40 minutes and it was difficult
to think he was not involved in the murders.
Demanding the death penalty before a panel of 3 professional judges and 6
citizen judges, public prosecutors argued that Hida committed the crime after
getting in financial trouble with the store owner over his unemployment
insurance.
(source: Japan Today)
BAHAMAS:
The Gallows Or A 2nd Chance - Bahamians Must Decide
last week, Archbishop Patrick Pinder urged the government to abolish the death
penalty. Instead, in a pastoral letter from the Bishops of the Antilles
Episcopal Conference, it was recommended that government should concentrate on
the rehabilitation of the offender.
It said that while a "climate of lawlessness" is prevalent in The Bahamas and
the region, capital punishment does not "assist the criminal to reform," nor
does it "assist the victim to restore his or her violated dignity".
5 days later, Bishop Walter Hanchell, chairman of the Citizens for Justice,
begged to disagree. He announced that he remained a firm supporter of
"restorative justice" for all those convicted of crimes, but not for murderers.
In his opinion murderers should "suffer the penalty of death for their crimes
as prescribed by law". In other words Bishop Hanchell belongs to the school of
"hang 'em high!"
On the other hand, Archbishop Pinder and the Bishops of the Antilles Episcopal
Conference believe that to take away a person's "basic right to immunity from
fatal harm" is to "compromise his/her sacred dignity".
As for Bishop Hanchell, he believes that capital punishment is an act, not
conceived by Man, but by God. Scripture, he said, decreed that murderers should
be "punished and removed" from society. However, he quoted no Scripture that
said that they should be killed.
And then there is psychologist Dr David Allen with a plan to save youth from
the anger that triggers violence, thus setting them on the right path before
they stumble and have to be rehabilitated.
We have often been asked what side we are on. Having grown up in the midst of 2
brothers with strong opinions on the matter we wavered for a long time, until
experience convinced us that hanging was not a deterrent.
However, Sir Etienne Dupuch believed it was a deterrent, although towards the
end he had started to have doubts. His "baby brother", the Hon Eugene Dupuch,
QC, had no doubts. He was firmly against capital punishment. This was the only
subject on which the two brothers disagreed.
Sir Etienne believed it was a deterrent because he recalled his father talking
of the public hangings on the Eastern Parade. On February 2, 1856, the Bahamas
Herald reported the hanging of Daphe Neilly on the Eastern Parade. As crowds
gathered an open coffin was put in front of the prisoner at the foot of the
scaffold. Neilly was positioned beneath the drop "and in a few moments
afterwards she was in eternity." After being "suspended for nearly half an
hour," the report continued, "the body was removed to a neighbouring burial
ground and there interred".
Such a gruesome public scene would certainly have been a deterrent. However,
statistics today show that the death penalty is no longer a STOP sign to
murder. In the US, states that do not have the death penalty show that murder
is consistently lower than in states with the death penalty.
Said Police Chief James Abbott of West Orange, New Jersey, in 2010: "I ... know
that in practice, (the death penalty) does more harm than good. So while I hang
on to my theoretical views, as I'm sure many of you will, I stand before you to
say that society is better off without capital punishment ... Life in prison
without parole in a maximum-security detention facility is a better
alternative."
Although still on the statute books, no one has been hanged in the Bahamas
since January 6, 2000. We believe that it should be officially abolished.
Too many mistakes are still being made and too many innocent persons in other
jurisdictions are still being executed - despite DNA testing - to justify its
retention.
However, even in this - although we believe that a convicted murderer should be
jailed for life with life meaning a man's full lifetime, not 25 years - even
these rules should not be so hard and fast that during the course of an
offender's lifetime, there cannot be a reprieve.
Not too long ago, we received a letter from a young Bahamian who is serving a
life sentence in a US prison for participating in an argument with a group of
boys that ended in murder. We know the family. A fine Bahamian family deeply
anchored in their religious faith. But we shall let the young man tell his own
story.
"I grew up," he writes, "in an environment that was full of love, devotion to
faith and was taught how to care, share and respect others. I can remember my
high school days where I would do the announcements in the mornings in the
dean's office and then turn around and plan events for the school with some of
my other peer councillors, a prefect, on the Key Club and participated in the
Kiwanis Club meetings, along with the school's basketball and softball teams
that I played for.
"During the summer months, I worked doing air-conditioning and refrigeration
until I finished high school. Upon completing high school I earned a partial
scholarship from the Lyford Cay Scholarship Foundation to attend. It was during
this time that I got into trouble with the law for the decision to hang with
the wrong crowd and that decision cost me my freedom."
The young man admits his mistakes, but he is not bitter. He has a positive
attitude and is preparing himself for the day that he can come home and help
others to avoid his errors.
#The prison to which he has been assigned has many positive programmes to
prepare inmates for the world outside. He has taken advantage of everyone of
them so that he can return home equipped to help young Bahamians stay out of
trouble, and show them the consequences of a wrong decision. In prison he
tutors other prisoners to prepare them for their tests. He has taken anger
management courses, a psychological course that deals with criminal thinking, a
course for ways in which to keep a family together, and a course to help a man
be a better father for his children.
"In between helping these guys, I find time to exercise and work out, write and
read. But none of these things would have been possible if not for God's grace
and my positive attitude. That is all that it takes. It's not easy dealing and
coping with what I go through - but I know deep down inside me that I'm going
to come home and some day have an impact in my country.
"This institution has a Gavel Club and I'm in the process of trying to enrol
and become a member. I do these things in order to be of service and to be able
to give back and to lead by example."
This is a young man who is needed in this country. However, his one unfortunate
decision has banished him from society for life - unless a way can be found to
have him released.
This is one of the many reasons that we are against the gallows - there are
those who can be redeemed, and are worth being given a 2nd chance.
(source: Editorial, Bahamas Tribune)
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