February 18
INDIA:
In 2:1 verdict, SC upholds constitutional validity of death penalty----Has
death penalty in the statute served as a deterrent for heinous crime?
A 3-judge bench of the Supreme Court in a verdict on Wednesday expressed
different opinions on this with one saying that the provision of capital
punishment has failed to become a deterrent and the other 2 holding that a
larger bench had already decided its continuance in the rarest of rare cases.
A 3-judge bench comprising justices Kurian Joseph, Deepak Gupta and Hemant
Gupta commuted the death sentence of a man and awarded him life term for
murdering 3 persons including 2 women.
Though the 3 judges differed on the applicability of death penalty, they were
unanimous in commuting the death sentence of Chhannu Lal Verma.
Justice Joseph, who is to superannuate on Thursday, while pronouncing the
verdict, read his views on the applicability of death sentence.
Referring to the 262nd report of the Law Commission, Justice Joseph said, “The
constitutional regulation of capital punishment attempted in Bachan Singh
versus State of Punjab in 1980 has failed to prevent death sentences from being
‘arbitrarily and freakishly imposed‘ and that capital punishment has failed to
achieve any constitutionally valid penological goals, we are of the view that a
time has come where we view the need for death penalty as a punishment,
especially its purpose and practice.”
He also said that till the time death penalty exists in the statute books, the
burden to be satisfied by the judge in awarding this punishment must be high.
According to Justice Joseph, the irrevocable nature of the sentence and the
fact that the death row convicts are, for that period, hanging between life and
death are to be duly considered.
“Every death penalty case before the court deals with a human life that enjoys
certain constitutional protection and if life is to be taken away, then the
process must adhere to the strictest and highest constitutional standards. Our
conscience as judges, which is guided by constitutional principles, cannot
allow anything less than that,” Justice Joseph, who wrote judgement for the
bench, said.
Justices Deepak Gupta and Hemant Gupta gave divergent opinion on the views
expressed by Justice Joseph on applicability of death sentence and said a
5-judge constitution bench in Bachan Singh versus State of Punjab in 1980 had
already held the constitutional validity of death penalty provided in Indian
Penal Code.
“In our view, since the Constitution Bench in Bachan Singh vs. State of Punjab,
has upheld capital punishment, there is no need to re-examine the same at this
stage,” justices Deepak Gupta and Hemant Gupta said.
Justice Joseph, who wrote the verdict for the bench, also voiced his
“anguishing concern” with regard to public discourse on crimes which have an
impact on the trial, conviction and sentence in a case.
“The court‘s duty to be constitutionally correct even when its view is
counter-majoritarian is also a factor which should weigh with the court when it
deals with the collective conscience of the people or public opinion. After
all, the society‘s perspective is generally formed by the emotionally charged
narratives. Such narratives need not necessarily be legally correct, properly
informed or procedurally proper,” he said.
Justice Joseph, while referring to the law commission report said that the
court plays a counter-majoritarian role in protecting individual rights against
majoritarian impulses.
“In this context, we may also express our concern on the legality and propriety
of the people engaging in a ‘trial‘ prior to the process of trial by the
court,” he said.
Justice Joseph said that it has almost become a “trend” for the investigating
agency to present their version and create a cloud in the collective conscience
of the society regarding the crime and the criminal.
“This undoubtedly puts mounting pressure on the courts at all the stages of the
trial and certainly they have a tendency to interfere with the due course of
justice,” he said.
The three judges were unanimous on their view that the Chhattisgarh high court
in the case at hand has erroneously confirmed death penalty on the man without
correctly applying the law laid down in Bachan Singh and other cases.
“The decision to impose the highest punishment of death sentence in this case
does not fulfil the test of rarest of rare case where the alternative option is
unquestionably foreclosed,” the bench said.
It said that no evidence as to the uncommon nature of the offence or the
improbability of reformation or rehabilitation of the appellant has been
adduced.
It noted that the superintendent of the jail has given a certificate that his
conduct in jail has been good during the pendency of his appeal in apex court
for past 4 years.
“Thus, there is a clear indication that despite having lost all hope, yet no
frustration has set on the appellant. On the contrary, there was a conscious
effort on his part to lead a good life for the remaining period. A convict is
sent to jail with the hope and expectation that he would make amends and get
reformed,” it said.
(source: herdongazette.com)
MYANMAR:
Lawyer seeks sentence revision in U Ko Ni slaying conviction
A prosecution lawyer in the 2017 murder of prominent National League for
Democracy lawyer U Ko Ni says he will file an appeal against the sentence of
one of the four people convicted of the crime.
U Nay La said on Friday that the sentence of U Zeya Phyo was not in line with
the law, and called for its revision. U Zeya Phyo was sentenced to five years
in prison with hard labour for falsifying evidence.
Yangon Northern District Court on Friday sentenced to death U Kyi Lin and his
accomplice U Aung Win Zaw for killing U Ko Ni.
The court also sentenced U Kyi Lin to 20 years in prison for killing a taxi
driver who tried to stop U Ko Ni’s assassination and to 3 years for possession
of illegal arms.
U Aung Win Tun received 3 years in prison for harbouring a criminal.
“We will appeal for a revision because Zeya Phyo was not sentenced for the
crime he was charged with but instead for falsifying evidence,” said U Nay La.
U Kyi Lin and U Aung Win Zaw can appeal their death sentences within seven days
of the verdict. They can appeal their death sentences to the Regional High
Court and apply for a revision from the Union Supreme Court. If they are
unsuccessful, they can appeal to the president.
U Zeya Phyo and U Aung Win Tun will have their time served in jail deducted
from their prison terms.
U Robert San Aung, another lawyer for the prosecution, said police are
continuing their search for U Aung Win Khaing, who is believed to have
orchestrated the assassination.
The trial in the case, which began March 12, 2017, questioned some 200
witnesses in 104 hearings at the North District Court.
Many people believe that U Ko Ni was murdered for spotting loopholes in the
2008 Constitution and creating the position of state counsellor for Daw Aung
San Suu Kyi.
Although the death penalty has not been withdrawn in Myanmar, it has not been
used since March 1988. Criminals on death row in Myanmar typically have their
sentences commuted to an indefinite prison term.
(source: Myanmar Times)
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