Sept. 25
ZIMBABWE:
Death Penalty Violates Human Rights
Capital punishment has been a contentious issue in Zimbabwe for many years.
While the new Constitution must be hailed for giving reprieve to women and men
aged under 21 or over 70 years of age at the time of committing the crime, a
lot of people still believe the death sentence should be removed from our
statutes.
The debate over this controversial issue comes to the fore once again this week
when the Constitutional Court sits to hear the third case of death row inmates
who are fighting to have their death sentences commuted to life imprisonment.
Zimbabwe has not carried out any executions in more than a decade, with the
last hangings being that of Edmore Edmund Masendeke and Stephen Chidhumo way
back in 2003. The 13-year break has been lauded by human rights defenders and
calls are now for Zimbabwe to declare an official moratorium on executions and
to abolish the death sentence altogether. Amnesty International describes
capital punishment as "the ultimate cruel, inhuman and degrading punishment".
Farai Lawrence Ndlovu and Wisdom Gochera will have their fate decided by the
highest court in the land in a case where they are represented by Tendai Biti.
The two were sentenced to death shortly before the new Constitution, which
gives reprieve on murder convicts, came into force in 2013. Section 4.1 of the
constitution has the encouraging sub-title "The right to life", but this
fundamental human right is almost immediately erased when, in subsection (2),
the death penalty is announced.
"A law may permit the death penalty to be imposed only on persons convicted of
murder committed in aggravating circumstances . . ." the section reads.
We share the view that before we advocate for the death penalty, we need to
take into cognisance the old adage that two wrongs do not make a right and that
two murders do not bring back a life.
We should not pretend that capital punishment is not murder because of the
legal technicality behind it. While we do not condone criminals, including
murderers, we think the death penalty is morally wrong.
Section 4.5 of the constitution has the sub-title "Freedom from torture or
inhuman or degrading treatment and punishment" and it clearly states: "No one
may be subjected to physical or psychological torture or to cruel, inhuman or
degrading treatment or punishment."
The cruel irony is that there is no worse torture than being on death row;
living each day knowing that someone has the legal power to take away your life
any time. By allowing the death penalty, the constitution in its present form
is presupposing the infallibility of the judicial system, which is not always
the case.
Judges and juries, like any other human beings, are prone to mistakes and
globally, there are documented cases where people have been wrongly executed by
the State. In this country, we have had people wrongfully accused of murder;
Cain Nkala's case quickly comes to mind.
We are all aware of how the justice system is prone to manipulation by
politicians in this country and it might not be surprising to have innocent
people hanged for political expediency.
In a country like ours, where the police are known for lack of professional
ethics, forced and falsified confessions can easily lead innocent people to the
gallows.
It is also a shuddering thought that the State would employ a professional
murderer in the name of a hangman. By implication, the executioner is a
murderer who deserves to be executed as well.
A convicted murderer deserves severe punishment, but he or she is still a human
being who deserves the chance to be corrected and rehabilitated, which is
central to the modern-day prison system.
Research has shown that although the death sentence represents a strong
condemnation of brutal and violent crimes, it does not necessarily deter people
from perpetrating violent crimes.
Those who clamour for the death penalty do not know that they have literally
descended to ancient times where an eye for an eye was central to legislation
and this, as Mahatma Ghandi once said, will make the whole world blind.
It will only serve the purpose of advancing the murderous cycle.
Most Southern African countries have abolished the death penalty. Zimbabwe has
carried capital punishment on its statutes from a Constitution inherited from
the colonial era and has executed many people since 1980.
It is refreshing the Vice President Emmerson Mnangagwa who is also the Justice
minister, is himself a strong proponent for the abolition of the death penalty.
We rest in the hopeful comfort that Mnangagwa will prevail in his fight against
capital punishment so that we as a country can stop playing God.
(source: Opinion; Zimbabwe Standard)
TAIWAN:
Former U.N. rights head suggests death penalty moratorium
Louise Arbour, the Tang Prize winner for the rule of law, suggested Saturday
when asked how Taiwan might deal with the death penalty issue that many
countries have adopted a moratorium on capital punishment before abolishing it.
Speaking at a press conference in Taipei, Arbour said several abolitionist
countries, including Canada, have started by putting in place a moratorium on
executions so that the death penalty remains an option and to avoid the
appearance of radical change.
"Over the course of 5, 10, 20 years, it becomes evident that the crime rate
doesn't increase and I think victims' families may come to understand that
there's a larger public interest in particularly guarding against wrongful
convictions," said Arbour, a former United Nations High Commissioner for Human
Rights and a current member of the International Commission Against the Death
Penalty.
"Even the most sophisticated legal systems have, at times, convicted an
innocent person," she said. "This is a price too high to pay for any society."
Public support for the death penalty remains high in Taiwan, with multiple
media and government polls over the years consistently showing that over 70 or
80 % of Taiwanese oppose abolishing the capital punishment.
But Arbour, who is in Taiwan to accept her Tang Prize award, said scrapping the
practice has become a worldwide trend and that in most countries the trend has
not been started by public opinion.
"It comes from enlightened, progressive political leadership," she said.
Arbour added that a modern government should not base its policies on ideology,
electoral considerations or public opinion, but facts and scientific evidence,
including social science evidence.
"And on that, there is nothing to support the death penalty," she said.
(source: Focus taiwan)
EGYPT:
Egypt court sentences 7 to death for policeman killing
An Egyptian court on Saturday sentenced seven people to death for alleged links
to the 2013 killing of a senior police officer, according to a judicial source.
The court also slapped 5 people with a 10-year jail term each and acquitted
another defendant in the same case, the source said anonymously due to
restrictions on speaking to media.
The defendants were accused of killing a senior police officer during a police
raid in Kerdasa, west of Cairo, weeks after the military coup against elected
President Mohamed Morsi.
Saturday's verdicts are still subject to appeal.
"We will appeal the verdict before the Court of Cassation, Egypt's highest
appellate court," defense lawyer Abdel-Hamid Salem told Anadolu Agency.
"If the appeal is rejected, the death penalty will be implemented against the
seven," he said.
Egypt has been roiled by turmoil since the military unseated Morsi, the
country's first freely elected president, in a 2013 coup.
Since then, hundreds have been sentenced to death on charges of incitement to
violence.
(source: Anadolu Agency)
VIETNAM:
Prisoner sells sperm to convict on death row
A DNA test result released yesterday confirmed that a male prisoner sold sperm
to drug smuggler Nguyen Thi Hue awaiting execution under the death penalty in
Qu?ng Ninh Province.
Drug trafficker Nguyen Thi Hue escapes death penalty after paying a female
prisoner to bring her a plastic bag of semen and a syringe so that she could
become pregnant.
Hue, 42, of northern Lang Son Province was arrested in 2012 for drug
trafficking and sentenced to death in 2014.
In early February 2016, she was found to be some 4 or 5 months pregnant.
Investigation revealed that Hue offered a male prisoner named Nguyen Tuan Hung,
27, who was in charge of cooking, VND50 million ($2,300) to get her pregnant.
Under Vietnam's Penal Code, the death penalty can be reduced to a life sentence
for prisoners who are pregnant or have a child under 36 months.
In August 2015, Hung sought ways to give Hue his sperm in plastic bags twice.
Hue injected the sperm in her womb and became pregnant.
A birth certificate was granted by Dong Dang Town People's Committee in Cao Loc
District, Lang Son Province, once Hue's baby was born. The certificate does not
mention the name of the child's father.
Meanwhile, the DNA test result revealed that Hung is the baby's natural father.
Quang Ninh Police is also investigating superintendents in charge of Hue's
case.
10 years ago, a similar incident occurred with another prisoner on death row,
Nguyen Thi Oanh, at a prison in northern Hoa Binh Province.
Oanh was assisted by 2 jailers who opened her detention room 5 times allowing a
male prisoner to have sex with her. The 2 jailers were imprisoned for 42-60
months.
(source: vietnamnet.vn)
PAKISTAN:
Why is our criminal justice system punishing a paranoid schizophrenic?
The mere mention of a crime engages our natural thought process into gauging a
punishment for it. Some would just ask what punishment a specific crime
entails, some of us would delve into arguing what purpose a particular
punishment serves, while others would discuss whether a punishment is adequate
or not. We all have our own thought processes and ideologies about what is
acceptable as a punishment. However, what is important is to remember the basic
idea behind it is.
The purpose ranges from retributive to utilitarian to rehabilitative. All
punishments must serve some purpose otherwise it would be a futile exercise to
impose any form of sentence for a crime. After all, what would be the point of
punishing someone if it has no impact on them? Or when the person being
punished is incapable of understanding why he is being punished or what lead to
the punishment.
With that in mind, what purpose will the execution of Imdad Ali serve? For
those of you who are unaware, Imdad Ali is a 50-year-old death row inmate. He
was convicted of murder in 2001 and has been diagnosed with paranoid
schizophrenia since. His family members were aware that he was mentally unfit
and it was pointed out at the trial as well. However, this defence was rejected
because of a judicial precedent that states that if the accused flees the scene
of the crime he cannot be considered mentally unfit. He was due to be executed
on September 20, 2016. Nevertheless, a last minute stay due to the efforts of
Justice Project Pakistan has halted his execution till next week.
Before we go any further, I must say that murder is a heinous and horrible
crime and anyone who commits the crime should be punished. However, to punish
someone who cannot even understand why he is being punished, or what punishment
he is being given is a crime in itself. His wife, after her last visit to him
reported that he had no idea that he was going to die.
How will capital punishment achieve any purpose in the case of a paranoid
schizophrenic?
With regard to the judicial precedent that I mentioned above, what I fail to
understand is how fleeing from the scene of the crime can have any bearing on
whether a person is lucid or not. I'm sure that sometimes even innocent people
flee from the scene of a crime. How can that determine whether one is of
unsound mind? What about the guilty people who remain at the scene of the
crime? This precedent has opened the door for unjust decisions to fly through.
Why do I say that?
Because, it was due to this precedent that a mentally unstable man is on death
row and this is just one case that we are all aware of. How many disabled
people will have to be hanged before it is realised that this precedent can
cause more injustice than justice, ever?
The death of the victim was the result of a mentally unstable man falling prey
to a disability of the mind. That death was caused by something which was not
in Imdad Ali???s control. To this date, Ali does not have much in his control.
He is not even aware of what is happening around him.
To punish a criminal is justified. But what justice would this one do?
On the contrary, this is a terrible injustice to a mentally disabled man who
has been on death row for the past 15-16 years for a crime he does not even
understand he committed.
I've been trying really hard to understand what purpose this would serve.
Will it act as a deterrent?
If so, for whom? Mentally unstable people, or mentally stable people?
Will it be a form of retributive justice? Possibly.
If so, one begs the following question: is retribution - an eye for an eye, the
foundation for our Criminal Justice system in the case of the mentally unfit?
Ironically so, the Pakistan Penal Code states that the death penalty shall not
be imposed on an offender who is a minor or is insane. Then why is this not
being followed? Is our criminal justice system so blind that it does not
recognise the plethora of evidence suggesting that Imdad Ali is a paranoid
schizophrenic?
Another factor to note is that Pakistan is a signatory to the United Nations
Convention on the Rights of Persons with Disabilities. The convention not only
guarantees the inherent dignity of individuals with disabilities but also gives
protection to the disabled individuals from cruel punishment. A man who is
clearly suffering from a disability has been in jail for the last 15 years and
has not received treatment for his condition. Rather, he has been put in a
place where his condition has only become worse.
How is that not a form of cruel punishment? To let a human being deteriorate
into his disability and then to hang him for something that has resulted from
that disability? By allowing the execution of Imdad Ali, our country will not
only be failing to honour its international obligations but it will fail its
very own citizens.
People with serious disabilities exist in our country and they need help and
support from the State. They need the State to provide facilities for proper
treatment. They need the State to recognise that acts committed by the mentally
unstable are beyond their control and contemplation as crimes. They need the
justice system to recognise these disabilities and how they impact people.
To punish Imdad Ali by execution will be to fail as a State and uphold a flawed
system of justice.
(source: Opinion, Maryam Malik; The Express Tribune)
*****************
5 awarded death by military court file appeal in LHC
5 convicts charged with the Safoora Goth carnage and Sabeen Mahmud murder cases
in Karachi, have filed appeals before the Lahore High Court (LHC), Rawalpindi
bench, while praying that the orders of field general court martial (FGCM) on
May 14, 2016 and rejection of their appeals on July 25, 2016 by military court
of appeals may be set aside.
An LHC division bench will hear this case on Monday, September 26.
An Inter-Services Public Relations (ISPR) press release on May 12 had announced
the confirmation of the death sentences to the 5 terrorists including Tahir
Minhas, Saad Aziz, Asadur Rehman, Mohammad Azhar Ishrat and Hafiz Nasir Ahmed
in nine cases of terrorism, including the Safoora Goth carnage and the Sabeen
Mahmud murder case.
Petitioners have made secretary Ministry of Defence and secretary Ministry of
Interior as respondents.
The petitioners through their counsel Hashmat Habib advocate contended in the
petition that they were being involved in a number of cases and challans were
submitted in the ATC. Trials of the said cases were pending but the Sindh
Police without authority on January 12, 2016 transferred cases of the
petitioners onward for trial by the military court. For 4 months, the
petitioners remained confined and were not allowed to meet their family
members. On May 14, 2016, the petitioners were shifted to Central Prison,
Karachi, with military court orders to be hanged by neck till death.
That the judgment passed by the FGCM was challenged before the Court of Appeals
that through single liner judgment rejected the appeals on July 25, 2016.
During proceedings of appeals, the petitioners were not provided with the
copies of FGCM proceedings.
The petitioners contended that they were innocent and have been made scapegoat
to save the real culprits involved in different cases.
That from the sequence of events right from petitioners arrest till rejection
of appeal, it appears that the petitioners have been awarded death penalty
already determined by the elements at the helms of affairs. Thus, the sentence
is not sustainable and is nullity in the eyes of law.
The petitioners contended that throughout the court proceedings, their defence
lawyer was a mere spectator. All witnesses had changed and fine-tuned their
statements recorded previously.
That under Article 10A of the Constitution, fair trial and due process is
guaranteed further to avail the services of defence counsel of choice is also
guaranteed. Similarly, the Pakistan Army Act and its rules also guarantee the
right of fair trial and due process but all such rights have been refused and
the petitioners are made victims of circumstances thus the sentence is not
sustainable and liable to be set-aside.
As per prosecution, the convict Tahir Minhas was the mastermind of the Safoora
Goth carnage date May 13, 2015 where 47 members of the Shia Ismaili community
were killed in an attack on their bus.
(source:The News)
MALAYSIA:
Madpet shocked at execution on verge of abolition of mandatory death penalty
Malaysians Against Death Penalty and Torture (Madpet) is shocked to hear that
Malaysia has executed one Ahmad Najib Aris on Friday (Sept 23, 2016), at a time
when Malaysia is in the process of abolishing the mandatory death penalty, and
possibly the death penalty for some offences.
Ahmad Najib Aris was found guilty of murder (Section 302 Penal Code) of one Ong
Lay Kian (also known as Canny Ong).
Mandatory death penalty denies judges discretion in sentencing
Section 302 of the Penal Code provides for the mandatory death penalty - which
means that once the judge finds the accused guilty of murder, the judge has no
choice but to sentence the convicted to the one and only available sentence -
death by hanging.
We recall that attorney-general Apandi Ali, who is also the public prosecutor,
said that "...mandatory death sentences were a 'paradox', as it robbed judges
of their discretion to impose sentences on convicted criminals... If I had my
way, I would introduce the option for the judge in cases where it involves
capital punishment. Give the option to the judge either to hang him or send him
to prison. Then we're working towards a good administration of criminal
justice." (The Malaysian Insider, Nov 13, 2015).
The attorney-general also said the he would propose to the cabinet that the
mandatory death penalty be abolished.
Only circumstantial evidence?
Ahmad Najib Aris was found guilty of murder, for which he was sentenced to
death, and also rape under Section 327 of the Penal Code for which he was
sentenced to 20 years imprisonment and ordered to be given 20 strokes of the
rotan (whipping). The evidence resulting in his conviction were only
circumstantial evidence.
It must be pointed out that one of evidence adduced at trial, was that the car
driven 'after the alleged abduction' by Ahmad Najib with Canny Ong seated in
the passenger seat was stopped by 2 police officers, who did ask for the
identity cards of both the driver and the passenger, which were given. They
both also later confirmed their identities to the police when asked. When later
asked to step out of the vehicle, the police officers allege that Ahmad Nazri
drove off.
Of note also was the fact that the alleged victim was not seen by the said
police officers to be bound or injured, and was seated in the passenger seat.
The fact that Ahmad Nazri did stop the car, when the policemen on motorbikes
asked him to do so also raises doubts as such is generally not the conduct of
one who is in the process of committing a crime.
Now, it is important to note that the credibility of the Malaysian police is in
doubt. The Enforcement Agency Integrity Commission (EAIC) in their inquiry
surrounding the death in police custody of one Dharmendran a/l Narayanasamy, in
their press release dated April 28, 2016, did, amongst others state, "The
Commission found the police report on the death of the deceased lodged by SP25,
the D9 Lock-up Sentry made upon the instructions of the Deputy Head of the
Criminal Investigation Department of Intelligence and Operations IPK Kuala
Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel) contained
false/misrepresentation of actual state surrounding the death of the deceased."
There were also finding by the EAIC that police made false entries into the
lock-up diary.
In October 2015, in another death in custody inquiry, the EAIC also found that
police had tampered with evidence in the Syed Mohd Azlan Syed Mohamed Nur case.
Then, we also recall the infamous Anwar Ibrahim's black eye, and how the police
said one thing, and finally it was revealed that it was the police that caused
it.
Hence, the alleged perceived 'odd' conduct of Canny Ong that allegedly moved
the police to ask Ahmad Najib and Canny to step out of the car, which resulted
in Ahmad Najib driving off raises much questions. Was this observation of Canny
Ong's 'odd' gestures true? Did Ahmad Najib really drive off to escape the
police?
The Canny Ong case has received much media attention soon after her
'disappearance', and there was much public anger when she was later found
murdered. There was much pressure on the police and the authorities to find and
convict the person/s responsible. Would this have 'tainted' the administration
of justice?
Doubts however also did emerge as to whether Ahmad Najib and Canny Ong had a
personal relationship, and whether he really was the person responsible for the
murder of Canny Ong. The absence of evidence of any struggle/protest at the
alleged time of abduction, and her subsequent conduct, even in the presence of
the two police officers, also raises concern.
In any event, the High Court found Ahmad Najib Aris guilty of both murder and
rape, and both the Court of Appeal and the Federal Court agreed.
At the High Court, when the defence was called to present their case, Ahmad
Najib Aris elected to be silent. It may be simplistic to assume that this
'silence' indicates guilt, but there are other possibilities. Was this silence
a result of a threat by others on the lives of loved ones, or maybe some
'promises'?
The right to have a review of sentence?
When Singapore abolished the mandatory death penalty for some types of murder,
it also provided for re-sentencing of persons previously convicted under the
said offences and were facing execution.
These qualified cases were sent back to the High Court, who looked again at the
facts and circumstances of the case, and mitigating/aggravating factors in
determining whether the death sentence will be retained, or changed to a more
appropriate sentence of imprisonment.
Malaysia is in the process of possibly abolishing the death penalty, starting
probably with the abolition of the mandatory death penalty. Nancy Shukri,
Minister in the Prime Minister's Department and also the de facto Law Minister,
was reported stating that the proposal to amend laws to abolish the mandatory
death sentence was to be tabled in Parliament as early as March next year
[2016]. (The Malay Mail, Nov 17, 2015).
In a media release dated April 7, 2016 by the Asean Parliamentarians for Human
Rights, it was stated that "...in November 2015, a roundtable discussion had
been held in the Malaysian Parliament by Parliamentarians for Global Action
(PGA) for the Abolition of the Death Penalty on initiatives, commitments and
particularly reforms on the state of inmates on death row and the abolition of
the mandatory death penalty.
"It was co-hosted by YB Mohd Nazri Aziz as the chair of the PGA National Group
and also YB Nancy Shukri, Minister Minister of Law in the Prime Minister's
Department; along with Luc Vandebon, EU Ambassador to Malaysia; Justice Mah
Weng Kwai; MPs from Malaysia, namely YB M Kulasegaran, YB Shamsul Iskandar
Akin, myself and international MPs as well.
"The main outcome of the meeting was that: (i) The Malaysian government pledged
to introduce a bill aiming to abolish the mandatory death penalty for all
offences and a review of the existing death row cases. (ii) The Malaysian
government instate an official moratorium on executions pending the assessment
of the report on effectiveness of the death penalty; ...
As such, if the mandatory death penalty is soon to be abolished in Malaysia,
would not have Ahmad Najib Aris also then be given the right for his current
mandatory death sentence to be reviewed? Would a re-sentencing court commute
his sentence to imprisonment? Now, that Ahmad Najib Aris is dead, we will not
know.
Likewise Gunasegar Pitchaymuthu, Ramesh Jayakumar and Sasivarnam Jayakumar who
were suddenly executed earlier on March 25, 2016.
Sudden executions without sufficient notice denies ability to save lives
It must be pointed out when there is due notice of pending executions, the
minister, the attorney-general and the Sultan of Johor, did previously act in a
praiseworthy manner in stopping executions. This happened in the case when Duli
Yang Maha Mulia Sultan of Johor in 2014 saved Chandran s/o Paskaran from being
hanged.
Likewise the de facto law minister, and the attorney-general, did act and
obtain a stay of execution in the case of Osariakhi Ernest Obayangbon (aka
Philip Michael) in 2014.
As such, this sudden and 'secretive' execution of Ahmad Najib Aris should be
condemned.
Global trend towards abolition of death penalty
On Dec 18, 2014, the UN General Assembly (UNGA) reaffirmed for the 5th time
since 2007 the urging for a stop of all executions. In 2014, 117 nation States
voted in favour, 38 against, 34 abstention with four absentees. Every time the
said resolution had been adopted, the number of votes in favour has been
increasing. The global trend continues to be for abolition.
It must also be pointed out that the death penalty in Malaysia is not pursuant
to some Islamic law, or subject to Islamic evidential and procedural
requirements.
Research has also demonstrated that most Malaysians are in favour of abolition
of the death penalty.
Currently in Malaysia, the death penalty is mandatory for 12 offences, while
about 20 other offences are punishable by a discretionary death penalty. As of
May 16, 2016, there are 1,041 persons on death row.
Moratorium on executions
The Malaysian Human Rights Commission (Suhakam), the Malaysian Bar and many
others have recommended that a moratorium on the use of the death penalty be
put in place pending abolition of the death penalty.
Suhakam, vide statement dated March 29, 2016, also cautions "...that any
miscarriage or failure of justice in the implementation of the death penalty is
irreversible and irreparable. Further, the rationale that the death penalty
acts as a deterrent has been discredited and dismissed on several occasions..."
Therefore, Madpet urges the imposition of an immediate moratorium on all
executions pending abolition of the death penalty, or at the very least pending
the tabling of the amendments that would most likely see the abolition of the
mandatory death penalty, and abolition of death penalty for some offences. This
also would justly result in a review of the death sentence of persons now on
death row by reason of being convicted of offences with the mandatory death
penalty.
Madpet also urges that the said laws and/or amendments to the law that will
result in the abolition of the mandatory death penalty and/or death penalty be
tabled forthwith at the upcoming session in Parliament in October 2016.
Madpet also urges Malaysia to vote in favour of the upcoming United Nations
General Assembly Resolution calling for a moratorium of executions pending
abolition of the death penalty, or at the very least record a vote of
abstention.
Madpet reiterates its urgings for Malaysia to abolish the death penalty.
--------------------------------------------------------------------------------
(source: CHARLES HECTOR is coordinator for Malaysians Against Death Penalty and
Torture (Madpet)----malaysiakini.com)
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