February 12
BOTSWANA:
Death penalty not a deterrent- Chief Justice
The newly appointed Chief Justice, Terrence Rannowane says the death penalty
has not worked as a deterrent to murder.
Rannowane said this when delivering his maiden speech at the opening of the
legal year on Tuesday at the Gaborone High Court.
Weighing in on what he described as a disturbing increase and alarming
prevalence of murder cases in the country, the concerned CJ noted that, “What
is also troublesome and worrisome is that the hovering and imminent presence of
capital punishment seems to be of no deterrence to the perpetrators.”
Rannowane further observed that, “This issue cannot be treated with sleight of
hand and left to the courts alone but instead requires the concerted efforts of
all concerned stakeholders as it is now an albatross and if allowed to simmer
any further will morph into a national crisis.”
Statistics has indicated that although murder incidents declined from 2017,
still remain at an all time high with 278, cases reported in 2015, 305 cases in
2016, 315 in 2017 and 294 in 2018.
“As a country we are recording unprecedented horrid, gruesome and shocking
incidents of murder cases, even beheadings with some bodies being buried
incomplete. The situation has become endemic. One rhetorically asks, what has
become of us,” he said.
The CJ however cautioned against mob justice, even when the perpetrator is
alleged to have committed a horrible crime as that of murder.
“Intricately linked to the concerns of high levels of murder cases, are
instances where members of the public take justice into their own hands, we
cannot and must not allow ourselves to entice others to take the law into their
own hands, irrespective of the circumstances. We are governed by the rule of
law and not the law of the jungle,” Rannowane warned.
The Chief Justice has also vowed to commit to resolving murder cases at the
earliest convenience.
“On our part as the courts, we commit to resume circuit court in murder cases
not only to expedite such cases but for deterrence and closure to take root in
the community where the heinous crime was committed, subject to the
availability of financial resources,” he said.
Rannowane further said that they are looking into moving murder cases to the
High Court from the moment of arrest of the accused persons.
“This will afford magistrates more time to manage their own cases,” he said
(source: thevoicebw.com)
INDIA:
Divergence on death penalty: The legislative expansion and judicial restriction
of capital punishment in India
The recently published statistics on the state of death penalty in 2018 is an
indication of the confusion that besets use of death penalty in India.
Drastically different treatment by the legislature, trial courts and the
appellate judiciary further intensifies competing tensions in administration of
the death penalty.
Calls for death penalty began early on in the year in the backdrop of incidents
in Kathua and Unnao. 2018 also saw the prime minister encouraging the death
penalty in his Independence Day speech and amendments to IPC and Pocso
introducing the death penalty for rape of children.
As far as its judicial treatment is concerned, trial courts in 2018 imposed a
record number of 162 death sentences – the highest in nearly 2 decades. The
Supreme Court, on the other extreme, commuted 11 out of the 12 death sentence
cases it decided and continued to signal concerns with administration of the
death penalty by courts below.
The legislative expansion of death penalty is not new. In the last five years,
Parliament passed two other laws introducing death penalty. The Delhi gang rape
prompted amendments to IPC in 2013 introducing death penalty for certain sexual
offences. In 2016, the Anti-Hijacking Act was passed prescribing death penalty
as well.
The legislature guided by political and public reactions has immense faith in
death penalty as a response to heinous crimes. But, irrespective of public
notions, the law requires courts to consider aspects beyond just the crime when
imposing death sentence.
Socioeconomic circumstances of the individual, age, past history, time spent in
prison, and the probability of reformation are some factors, which the Supreme
Court itself has declared as integral to the sentencing process. However, in
reality all levels of the judiciary have for long struggled with using their
own terms of reference in administering the death penalty uniformly.
Given this context, expanding the use of death penalty in an already
constitutionally suspect framework threatens to weaken the criminal justice
system even further. Lack of cohesion within the judiciary is evident from
multiple instances when the appellate judiciary has pushed back against the
eagerness of trial courts in imposing death penalty.
The Supreme Court has time and again indicated that death sentence is being
used by the lower courts more liberally than is intended. The ‘Death Penalty
India Report, 2016’ found that over a 15-year period from 2000 to 2015, less
than 5% of death sentences were eventually upheld by the Supreme Court.
This trend seems to be continuing. In 2018 itself, various high courts commuted
death sentences in 55 cases, of which 24 involved sexual offences.
Interestingly, out of the nine death sentences imposed by trial courts under
the 2018 law, 6 were commuted by the respective high courts.
On its part the Supreme Court commuted 11 death sentences in 2018, including a
dissenting opinion by Justice Kurian Joseph calling for the abolition of the
penalty itself. 6 of these commutations by the Supreme Court involved charges
pertaining to sexual offences. Be that as it may, the Supreme Court’s
performance on death penalty sentencing is also rife with inconsistencies as
traced by ‘Lethal Lottery: The Death Penalty in India’, a report analysing over
50 years of the Supreme Court’s jurisprudence on this issue.
It is evident that death penalty encounters different responses at various
levels of the judiciary. While the trial courts demonstrate an exaggerated
affection for death penalty, appellate courts seem to be increasingly
sceptical.
This incoherence has been particularly glaring in the past year. The
legislature’s faith in death penalty, then, is in sharp contrast to this
reality and its reliance betrays an honest evaluation of the criminal justice
system.
(source: Maitreyi Misra and Ruchi Chaudhury; The writers are Associates at
Project 39A, National Law University, Delhi----The Times of India)
MALAYSIA:
Bring back trial by jury for death penalty, says former top cop
Tan Sri Musa Hassan today said Malaysia should consider bringing back trial by
jury for cases involving the death penalty in order to avoid abuse of power.
The former inspector-general of police said in the past there was trial by jury
for murder cases and if bringing it back will help reduce abuse of power he is
all for it.
“We don’t have a jury trial like before which would mean a preliminary enquiry
in the Magistrate’s Court to see if there’s enough evidence for a conviction,”
Musa told reporters after attending a meeting between the Malay-Muslim
coalition Ummah and non-governmental organisations on Malaysia’s plan to
abolish the death penalty.
“The Magistrate’s Court will transfer the case to the High Court followed by
trial by jury. Maybe we could suggest bringing back trial by jury if it is more
justifiable and protects from abuse.”
The proposed abolition of the death penalty has taken more prominence since the
death of firefighter Muhammad Adib Mohd Kassim allegedly at the hands of a mob
during the Seafield temple riots in USJ25, Subang Jaya on November 27 last
year.
Musa said too much of the concern now were on the criminals.
“We have to balance the rights of the criminal and the rights of the victims.
Right now, we’re more concerned for the criminals,” said Musa.
“The law should be enforced strictly and I’d like to advise the Malaysian
public that we should support the death penalty.
“The most important thing when convicting someone is make sure there is enough
evidence, justify the evidence to the judge and the judiciary will determine if
the evidence is true before conviction.”
Malaysia abolished trial by jury in 1995.
The Bill to abolish the mandatory death penalty is expected to be tabled at the
next Dewan Rakyat sitting, which is scheduled to begin next month.
(source: malaymail.com)
************************
NGO opposes move to abolish death penalty, demands referendum
Gerakan Pembela Ummah (Ummah) today called on the government to have a
referendum on whether the death penalty is necessary.
At the same time, the NGO stated its stand that the death penalty should be
retained to control crime which it said was “very high” at present.
It said in a statement that “precious taxpayers’ money” was being used to keep
criminals, especially those who committed heinous crimes alive, “compromising
the public’s access to funds for other higher priorities and compromising our
rule of law and our safety”.
Therefore, Ummah said the taxpayers’ consent was “definitely needed” before the
government decided to abolish the death penalty.
“The government should put the interests of the public, the interests of 33
million Malaysians, first — not the interests of the 1,281 inmates on death
row.
“The human rights and safety of the majority public should come first.”
Ummah said studies showed that capital punishment deterred crime and saved
lives, but it did not give any details about these studies, including who
conducted them and where.
It said, however, that the death penalty was “ineffective due to weak
enforcement of our laws”.
Noting that the country needed funds, Ummah said money used to house and care
for criminals sentenced to death could be better spent on healthcare, welfare,
education and infrastructure for the majority public.
It called on Putrajaya to follow the “good example” of Asian nations such as
Singapore, China, Japan, Indonesia, Thailand and India in retaining the death
penalty.
Ummah said the majority of Malaysians, being Muslim, followed Islamic law,
which accepted capital punishment.
“We must not let our country and our laws to be manipulated by criminals or
NGOs backed by criminals on the pretext of meeting international standards of
human rights,” it said.
Ummah said there was a conflict of interest in that lawyers who acted in the
best interest of their clients, including criminals, were asking for the death
penalty to be dropped.
It urged the Malaysian Anti-Corruption Commission to probe this conflict of
interest.
The NGO called on the government to immediately lift the moratorium on the
death penalty.
It wants the government to keep the death penalty and let judges have the
discretion to decide on cases based on evidence and to let the Pardons Board
review cases that may point to elements of miscarriage of justice.
“Address the areas of concern by redrafting the laws for drug-related cases
separately.”
The NGO called for a full disclosure by all ministers and MPs, particularly
lawyers, about their interest, directly or indirectly, in the 1,281 inmates on
death row.
Ummah also urged the public to continue to support a petition to keep the death
penalty.
(source: Free Malaysia Today)
SOUTH KOREA:
Catholic group to file constitutional petition against death penalty
The Catholic Bishops' Conference of Korea's Committee for Justice and Peace
said that its subcommittee on the abolition of capital punishment will ask the
top court to review whether the first clause of Article 41 of the Criminal Act,
which stipulates the death penalty, is constitutional or not.
The petition is to be submitted to the Constitutional Court in the afternoon on
behalf of a man who was sentenced to life imprisonment for parricide at the
Bucheon branch of the Incheon District Court last December.
Last year, the Catholic organization helped the man file a petition with a
local court to rule on the constitutionality of the Criminal Act clause on
death penalty, but the court rejected it saying,"Capital punishment is the
strongest deterrence against crimes."
The Catholic organization said in its constitutional petition, "The life of
every individual is of equal value and the life of each individual has an
absolute meaning. Even brutal criminals who violate and destroy the life and
human rights of others should not be an exception."
It went on to argue that the death penalty system is incompatible with the
Constitution in that it treats capital punishment as a means of social defense,
and doesn't recognize a criminal as a human being capable of moral reflection
and improvement.
The Constitutional Court ruled 7 to 2 in 1996 and 5 to 4 in 2010 that the death
penalty is constitutional.
(source: yna.co.kr)
IRAQ:
Iraqi court sentences 6 brothers to death for joining Islamic State
An Iraqi criminal court has sentenced six brothers to death by hanging for
joining the Islamic State (IS) terror group.
The six were found guilty of launching armed and car bomb attacks against
security forces and civilians in Al Khasfa and Hamam Al Alil districts in
Nineveh, leaving scores dead, Gilgamish Press quoted the Iraqi Supreme Judicial
Council as saying in a statement.
The court ruling was issued pursuant to article ¼ of the anti-terrorism law,
added the statement.
Iraqi courts have sentenced many of Islamic State members, including a big
number of female members, to death over joining the militant group.
The exact number of detained militants is still unknown, however, it’s
estimated to be at thousands. It’s also unclear how many members are likely to
face death sentences.
Iraq’s anti-terrorism law empowers courts to convict people who are believed to
have helped jihadists even if they are not accused of carrying out attacks.
The UN, the European Union and international human rights groups always
criticize mass killings in Iraq and call for abolishing the death penalty,
which was suspended on June 10, 2003, but was reinstated on August 8, 2004.
Despite defeat in Iraq in late 2017, many IS remnants remain at large in the
hideouts of the Arab country.
(source: iraqinews.com)
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