May 6
JAPAN:
It's time to reconsider the death penalty
While pre-World War II laws and systems were being reviewed, the Supreme Court
in 1948 delivered its verdict on whether the death penalty was compatible with
the nation's postwar Constitution.
"The life of a single person is worth more than the entire world," the court
stated, indirectly quoting from "Self-Help," a work by Scottish author Samuel
Smiles (1812-1904) that was widely read in Japan during the Meiji Era
(1868-1912).
But contrary to this unequivocal acknowledgement of the sanctity of every human
life, the highest court concluded that the death penalty, by which the state is
empowered to execute its citizens, was not in violation of the new Constitution
that bans "cruel" punishment.
This ruling of 67 years ago remains to this day the basis of the judicial
argument of the constitutionality of capital punishment.
LIFE SENTENCES WITHOUT PAROLE
That decision was reached unanimously by all 11 justices sitting on the Grand
Bench of the Supreme Court. But what is interesting is that 4 of the justices
noted in their concurring opinion that the death penalty "has not been
permanently endorsed by the Constitution."
The justices went on to note that as civilization develops and a peaceful
society ruled by justice and order becomes established to render the threat of
capital punishment redundant for crime prevention, the death penalty itself
will certainly be rejected.
After World War II, many countries abolished capital punishment or opted for
stays of execution. Today, the death sentence is a thing of the past in 70
percent of countries around the world.
We must ask anew: Has the "peaceful society" envisioned by the 4 justices yet
to be realized in Japan?
Public sentiment is the government's main reason for justifying capital
punishment.
According to opinion polls conducted by the government every 5 years, Japanese
citizens are overwhelmingly in favor of maintaining capital punishment. In the
latest survey results disclosed in January this year, 80.3 % were in favor,
with only 9.7 % against.
But there are also developments that must not be overlooked.
In the latest survey, the government for the 1st time asked the respondents
what they thought about introducing life sentences without parole.
With this possibility in view, those in favor of maintaining the death sentence
dropped to 51.5 %, while those against the death sentence rose to 37.7 %. The
traditional overwhelming support has crumbled.
Life sentences, the second stiffest penalty after capital punishment, currently
offer chances of parole. This is a big gap in leniency, as experts have pointed
out.
Being a lifer without parole is agonizing in a different way from being on
death row. There also may be difficult issues involved in dealing with convicts
who have no possibility of returning to society. Still, we believe the
introduction of life imprisonment without parole is something that should be
considered as an interim step toward abolishing capital punishment.
TOO LITTLE INFORMATION
The survey results indicate that public opinion can swing depending on
preconditions and how the questions are asked.
If getting a careful read on what the public wants was the purpose of the
surveys, shouldn't the government have started posing questions based on
different preconditions much earlier? As for members of the public, haven't
they been guilty of tacitly endorsing the death penalty without really giving
the issue any serious thought?
Mai Sato, a researcher at Oxford University who has been researching the
correlation between capital punishment and public opinion, noted: "The
government does not provide sufficient information but believes that a public
consensus exists. And the public has been persuaded to believe so."
The citizen judge system, which involves ordinary citizens in the judicial
deliberative process, represents one of the biggest changes in the nation's
postwar handling of capital cases. Since the system's introduction 6 years ago,
more than 20 death sentences have been delivered.
But we can hardly say that the system has helped provide the public at large
with a broader range of information with which to determine the punishment for
each accused individual.
And the government has certainly not taken any proactive steps to improve the
situation.
Is it not only right and proper for the government to provide citizens with
every piece of information and opportunity for them to understand how death row
convicts live and what execution by hanging is like? For example, citizens
should be given opportunities to visit execution chambers.
In this day and age when anyone could be called up to be a party to condemning
a fellow human being to death, the government must disclose every necessary bit
of information so that people can make well-reasoned decisions.
EMBRACING NEW VALUES
When considering an end to capital punishment, the feelings of bereaved
families of murder victims must never be overlooked.
But their feelings and thoughts vary greatly, and the judiciary does not
believe in punishing the perpetrators just to vindicate victims or their
families.
What is needed is a multilevel support system for the victims and their
families, such as ensuring thoroughly open court procedures and close
post-trial communications to keep them informed on how the accused are serving
their sentences.
Even in Western Europe, which has done away with the death sentence, the
momentum for abolishing it did not arise until after World War II. The sea
change occurred against the backdrop of an increased public awareness for human
rights and the sanctity of human life, which raised questions about a state's
right to order the execution of its citizens.
According to Amnesty International, Japan and the United States were the only 2
out of the 34 member nations of the Organization for Economic Cooperation and
Development that still executed their citizens as of the end of last year. But
even in the United States, recent years have seen a growing move toward ending
capital punishment, and 18 of its 50 states have already abolished it.
It is up to each country to determine its system of punishment. But Japan
certainly has much to learn from other democracies on how they eventually chose
to abolish the death sentence.
In 1965, Britain halted executions when the real perpetrator of a capital crime
owned up after someone had been falsely accused and executed. In 1998, Britain
abolished capital punishment.
In Japan, the irrevocability of the death sentence was driven home last year
when the Shizuoka District Court ordered a retrial for Iwao Hakamada, a death
row convict.
There are no reports of increased incidence of heinous crimes in countries that
abolished the death sentence. It is understood today that the argument that
capital punishment is a deterrent to crime lacks proof.
We need to address the issue of capital punishment with sincerity, drawing upon
accumulated knowledge and experience.
(source: Editorial, The Asahi Shimbun)
CARIBBEAN:
The case for abolition of the Privy Council
It was with great interest that I listened to the arguments advanced on April
26 by Ramesh Lawrence Maharaj and others on the need for a referendum to decide
on accession to the Caribbean Court of Justice (CCJ).
It is important to appreciate that while some may want the Privy Council, the
Privy Council does not want us! In a BBC report in 2009, Lord Phillips said
that the Law Lords on the Privy Council were spending a "disproportionate"
amount of time on cases from former colonies, mostly in the Caribbean. He
advocated a reduction in the caseload and suggested using some English Court of
Appeal judges on the Privy Council. Since the 2009/10 judicial year, more than
half of the Commonwealth appeals, and 40 % of all judgments, have originated
from 2 countries Mauritius and T&T. Other Commonwealth countries have long left
the jurisdiction of the JCPC - Canada (1933, 1949), India (1949), Australia
(1968, 1975) and most recently, New Zealand (2004).
It was suggested in the forum that the Privy Council has dispensed "justice" in
the Caribbean for "centuries". The Privy Council was a colonial institution
which began to receive petitions from the plantations and was originally set up
as a standing committee in 1681 to receive petitions asking for the "King's
grace as a relief from the decisions of local courts". It was given its current
form in 1833 on the eve of Emancipation. At that time we were a society of
slaves and later indentured workers. We were not citizens with right of access
to justice. We were merely subjects in a crown colony.
The laws in colonial society did not serve the interests of the mass of
'subjects'. Indeed those laws discriminated against Afro and Indo-Trinidadians
in restricting land ownership, and even freedom of movement, and protected the
interests of the white plantocracy. The magistracy was populated by "briefless
barristers", whose 'justice' was often rough and arbitrary. Up to 1871 some
members of the Privy Council itself were laymen without legal training. Voting
was based on property qualifications.
There was no adult suffrage here until 1946. To suggest then that the Privy
Council dispensed justice is ludicrous. We can only sensibly assess the role of
the Privy Council from 1962 when we gained Independence and, when as free
citizens of this country, we chose to retain the Privy Council as our final
court of appeal, as we also chose to "save" the English laws under which the
society then operated.
Secondly, as Lord Neuberger noted, while it was the final appellate court for a
quarter of the world's population, the Privy Council operated not open justice
but in virtual secrecy from #9 Downing Street. The persons whose lives were
determined by its decisions did not know where it was located, who sat on it,
and how they came to sit there. Most Trinidadians still don't know!
Some speakers at the forum gave the impression that the JCPC judgments are
always right and their decisions are bold and free of bias. This is false.
First, even the highest courts, eg, the UK Supreme Court, now give themselves
the option of overruling themselves, recognising that a previous decision may
have been wrongly decided, or that social and cultural circumstances had so
changed that a decision now would have to be different from one given earlier.
Second, the romantic notion some West Indians have of English jurists and
jurisprudence is but a reflection of our deep-seated ambivalence and a still
regnant colonial mentality. As if these English jurists are not socially
conditioned and cannot fall into error!
Why then the strong lobby in recent decades in the UK itself for the cessation
of drawing almost exclusively on men educated at Oxford and Cambridge for
appointment to the bench, and the perceived need to bring on more women and
minorities? One Australian jurist, quoted by Lord Neuberger said: "Sometimes,
their Lordships did not have a full appreciation of the local conditions that
made it difficult for them to reflect all of the factors necessary to a lawful
and just resolution of the cases."
But its decisions in several West Indian cases have not been 'right' or bold.
The Privy Council has made a dog's dinner of death penalty cases in the region
in the last 20 years. The underlying reason for its flip flopping and
inconsistent decisions is that, while claiming to apply the law of the land
whose case they are hearing, they are driven by contemporary European
jurisprudence where the death penalty is not to be applied under any
circumstances. The Pratt and Morgan 5-year limitation combined with a
"legitimate expectation" of appeals to human rights bodies, has made it
impossible to carry out the death penalty which is the law in most West Indian
territories. Lord Bingham and 3 other law lords dissented strongly in the
Charles Matthew case, which was decided 5:4, on whether the death penalty was
mandatory in this country, overruling its previous decision in Roodal.
In Suratt, the late Lord Bingham, an outstanding jurist, levied a strong
dissent suggesting that the decision on the constitutionality of the Equal
Opportunities Act should have been left to the local courts. At least 2 of our
Appeal Court judges maintain that Suratt was wrongly decided. Other JCPC
decisions have left the local courts perplexed! In Persad v Persad, Jamadar JA
has as much told local judges not to follow the Privy Council decision in
Macleod which decision had been criticised by the House of Lords in Radmacher.
The Privy Council has been useful and made important decisions which have
shaped our jurisprudence positively. But it cannot be held out as a paragon of
justice in a West Indian context in the 21st century.
(source: Trinidad Express)
NIGERIA:
Execution of 4 Nigerians in Indonesia
Global attention riveted on Nigeria last week following the execution of 4 of
our citizens for drug trafficking in Indonesia. Coming so soon after the
euphoria of the successful conclusion of the 2015 general elections, the
presence of 4 Nigerians among a total of eight persons killed for drug
trafficking in that country, is a dampener. It has also brought into sharp
focus the serious work that the incoming government of Gen. Muhammadu Buhari
has to do to re-orientate Nigerian youths from criminality and untoward
money-making activities that are fast becoming a norm in the country.
Nigerians, it must be said, need a new orientation towards responsible living
and the incoming government will need to make national re-orientation towards
good citizenship and worthy conduct a cardinal point of its assignment, if
there is to be any hope of taking our country from its present sorry state to
where we all want it to be.
With our citizens making up 50 % of the total number of executed persons, the
incident has understandably pushed the nation's image several notches lower and
the countries that have always prided themselves on singling Nigerians out for
serious searches at their international airports may have been given more
impetus to continue the practice. The impression that has unwittingly been
created is that Nigeria likely carries about 50 % of the global drug
trafficking burden.
The names of our executed compatriots as released to the global audience are:
Sylvester Obiekwe, Raheem Salami, Okwudili Oyatanze and Martin Anderson, who
was said to have used a Ghanaian passport for the trip. Seeing the pictures of
these our fellow citizens splashed all over the world is one embarrassment that
Nigerians would have loved to avoid if it were possible. For their families,
the impact of this sad development is only better imagined than experienced.
The picture of the Nigerians whose lives were literally cut short before a
global audience is touching. These were all young Nigerians who had been
caught, tried and kept on death row for about 10 years before the final
execution date, last week Tuesday. Some of them had reportedly been reformed
during their incarceration process and one had actually become a gospel singer,
and had released about 7 gospel albums and written about 70 touching songs.
Yet, the Indonesia's strict drug law which provides for death penalty had to be
respected, so, the country's authorities turned deaf ears to entreaties from
all parts of the world, including from the United Nations, European Union,
Amnesty International and the Nigerian government, to spare the lives of the
drug convicts.
The country, to all intents and purposes, told the world that its laws were
made to be implemented, to serve the purpose of keeping drug traffickers out of
their territory. But for the gruesomeness of the executions, this lesson on the
need to respect laws is actually good for certain Nigerians, who apparently
think that laws are meant to be broken by anyone who is smart enough to get
away with breaking them.
Sadly too, 2 other Nigerians, Daniel Enemuo and Solomon Chibuike Okafor, had
reportedly been executed in Indonesia on January 18, this year, while several
others have been quietly executed in China in recent months.
As saddening as these executions are, the killing of these our four compatriots
is not the end of Nigeria's drug trafficking execution woes. Apart from the
four that have now been killed, there are still 11 other Nigerians awaiting
execution in Indonesia for the same offence of drug dealing. In China, 120
Nigerians have also reportedly been sentenced to death for drug running, while
1 person is on death row in Singapore.
As crude and repulsive as the execution of these Nigerians for drug trafficking
in Indonesia sounds, it is the law of that country and the punishment of death
for the crime is said to be clearly stamped on all visas issued to anyone
travelling there.
That Nigerians have continued to be caught in this crime in Indonesia is,
therefore, symptomatic of the desperation of some our citizens to make money
from drug trafficking, even at a great risk to their lives. It is this
desperation that also pushes our citizens to undertake the perilous journey by
Libya into Europe, with many of them losing their lives in the process. The
challenge before the incoming administration is, therefore, to address the
factors that make drug trafficking attractive to Nigerians. Key, among these,
is the fact that many Nigerians are finding it difficult to make a reasonable
living in the country. Unemployment and underemployment readily lure unwary
citizens to drug trafficking. Meanwhile, there is ready adulation of persons
with sudden unexplained wealth, instead of questions being asked on the sources
of their wealth.
With the ease with which criminally-acquired wealth is flaunted without any
questions asked, and the inability of many Nigerians, especially the youths, to
make ends meet in the country, drug trafficking becomes an easy recourse, and
there is no shortage of criminal gangs to lure the unwary into the dastardly
business.
To reduce the penchant of Nigerians for drug trafficking and other untoward
activities such as armed robbery, Internet fraud and kidnapping, it is
necessary for the authorities to make it easier for Nigerians to earn a
reasonable living in the country. There is the need for a moral rebirth and
social re-orientation. The glorification of sudden wealth must be stopped while
the values of respect for work and dignity of labour must be taught, imbibed
and demonstrated in our daily living.
Incidentally, the menace of drug trafficking was one of the ills that gave the
incoming president a bad name as his exasperated regime, at the time, passed
laws that stipulated death penalty for the crime. The era of executing
Nigerians for drug trafficking has certainly passed, but the nation's laws must
be strengthened to serve as a greater deterrent to this crime. Our laws and
judicial administration system must take a stricter view of drug offences. The
era in which drug traffickers are given slaps on the wrists and let off the
hook to later disgrace the nation abroad should come to an end.
Above all, Nigerian youths have to be taught better and more honourable ways of
earning a living. The country is in sore need of a moral and ethical
re-orientation that must start from the top and percolate down to the entire
population. The agency of government to handle this assignment must be
empowered to do a good job. This is one sure way that the incoming government
can try to make a break from the present collapse of values and develop a new
charter of responsible citizenship for Nigerians.
(source: Sun News)
PAKISTAN----execution
Murder convict hanged in Lahore
A death row convict has been sent to the gallows at the Kot Lakhpat Jail
Lahore, Dunya News reported.
According to details, death row convict Zulfiqar was hanged on early Wednesday
morning. Zulfiqar was guilty of killing two people during a robbery attempt.
Prime Minister Nawaz Sharif lifted the moratorium on the death penalty on
December 17, a day after Taliban gunmen attacked a school and killed 134
students and 19 adults. The killings put pressure the government to do more to
tackle the insurgency.
(source: Dunya News)
*******************
Execution of Pakistan death row convict stayed in dispute over age
A Pakistani judge on Tuesday stayed the execution of a man whose lawyers say
was 14 when he was charged with murder, a case that has angered rights groups
and prompted mercy appeals from his family.
Shafqat Hussain was due to be executed on Wednesday. His lawyers say he was 14
in 2004 when he was burnt with cigarettes and had fingernails removed until he
confessed to the killing of a child.
It was the 2nd stay of execution for Hussain.
In March, he was dressed in a white uniform ready for hanging and told to write
his will before his execution was postponed while the Federal Investigation
Agency looked into the question of his age.
The agency, Pakistan's equivalent of the US FBI, later determined he was not a
juvenile at the time of the killing and a new execution date was set. But that
was also challenged.
"The judge has ruled that the FIA did not have the mandate to conduct the
investigation into Shafqat's age and this should be done by a competent
judicial forum," Shahab Siddiqui, of the Justice Project Pakistan, a legal aid
group representing Hussain, said.
"So, until the matter is decided, his execution is stayed."
The death sentence cannot be imposed on a defendant who was under-18 at the
time of the crime. Testimony obtained by torture is also inadmissible. Prime
Minister Nawaz Sharif lifted a moratorium on the death penalty on Dec. 17, a
day after Pakistani Taleban gunmen attacked a school and killed 134 pupils and
19 adults.
Since then, 102 people have been executed, according to the Human Rights
Commission of Pakistan.
Hussain's family has made heartrending appeals to the government, complaining
of a flawed justice system that allowed months of torture to extract a
confession.
Human rights groups say convictions in Pakistan are highly unreliable because
its antiquated criminal justice system barely functions, torture is common and
the police are mostly untrained.
(source: Arab News)
SOUTH AFRICA:
Maimane 'flip-flops' on death penalty referendum
2 days after DA leadership candidate Mmusi Maimane publicly expressed his
support for a referendum on the death penalty, he has backed down.
"I would stand up straight and say I don't support a referendum on the death
penalty. We shouldn't have a referendum," Maimane told Netwerk24 in an
interview on Wednesday.
Perhaps he did not clearly articulate his position on the death penalty and gay
marriage in a television debate with outgoing federal chair Wilmot James, said
Maimane.
In actual fact, Maimane is very opposed to the death penalty, and supports gay
marriage.
James said during the debate, broadcast on DStv's kykNET show Insig on Monday
evening, that the DA's parliamentary leader did not understand the
Constitution.
On Wednesday, Maimane clarified he meant to say he was in favour of South
Africans getting an opportunity to say how they feel, and re-evaluate their
opinions.
"People tend to assume when the Constitution provides for someone to have a
referendum, the state has to implement the outcome."
But that is not the case, said Maimane.
"A referendum is the polling of people. My view was that if people want to give
an opinion, they should be allowed to make a referendum, but that is not how
you govern the state."
"I've come to understand that people assume when you say a referendum is on the
table you are saying those rights are up for grabs. That is not what I am
saying."
He denied that he did not understand the Constitution.
"I disagree with that. I've upheld the Constitution. I spend my days in
Parliament upholding the Constitution."
During the debate, Rapport editor and Insig presenter Waldimar Pelser asked him
how he reconciled his church's stance against gay marriage with gay rights
enshrined in the Constitution.
Since then, Maimane's critics have said he was sitting with a moral dilemma he
needed to explain.
"It is not a moral dilemma," Maimane told Netwerk24.
"I have in my own church taken a stance on my support of gay marriages. I don't
go to church because I agree with everything the church says.
"I've been supportive of gay rights. Marriage is marriage, those things to me
is not even a debate. I've married a gay couple. To me the church holds a
particular view, my job is to help the church see my point of view equally so."
Constitutional law expert Pierre de Vos said Maimane understood the
Constitution correctly and that a referendum was not binding.
(source: news24.com)
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