End the Death Penalty for Drug-Related Offenses: Human Rights Watch

As the International Day Against Drug Abuse and Illicit Trafficking approaches on June 26, the Anti-Death Penalty Asia Network (ADPAN), of which Amnesty International is a member, Human Rights Watch and the International Harm Reduction Association call upon governments in Asia to cease applying the death penalty for drug-related offenses.

There is a clear, longstanding and worldwide move toward restriction or abolition of the death penalty. Only a small minority of countries continue to implement the death penalty: in 2008, 25 countries carried out executions. ADPAN, Human Rights Watch and the International Harm Reduction Association (IHRA) oppose the death penalty in all cases as a violation of fundamental rights - the right to life and the right not to be subjected to cruel, inhuman, and degrading punishment.

Sixteen countries in Asia apply the death penalty for drug-related offenses. As many countries in the region do not make information on the death penalty available, it is impossible to calculate exactly how many drug-related death sentences are imposed. However, in Indonesia, Malaysia, Singapore, and Thailand, reports indicate that a high proportion of death sentences are imposed upon those convicted of drug offenses. ADPAN, Human Rights Watch, and the IHRA express particular concern that China, Indonesia, and Vietnam continue to execute individuals for drug offenses -
and that some countries, such as China since the early 1990s, and Indonesia in 2008, have marked the occasion of June 26 with such executions.

Despite the executions in Asia, there is no clear evidence of a decline in drug trafficking that could be attributed to the threat or use of the death penalty. There is no credible evidence that the death penalty deters serious crime in general more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 1996 and 2002, concluded: "... research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a
whole gives no positive support to the deterrent hypothesis."

UN human rights mechanisms - including the UN special rapporteur on extrajudicial, summary, or arbitrary executions, and the UN Human Rights Committee - have concluded that the death penalty for drug offenses fails to meet the condition of "most serious crime", under which the death penalty is allowed only as an "exceptional measure" where "there was an intention to kill which resulted in the loss of life" (UN Doc, A/HRC/4/20, 29 January 2007, para 53). The UN high commissioner for human rights and the director of the UN Office on Drugs and Crime have likewise expressed
grave concerns about the application of the death penalty for drug offenses.

Death sentences are often handed down after unfair legal processes, a problem made worse by laws, policies or practices regulating drug offenses in some Asian countries. Mandatory death sentences are applied for certain drug offenses in Brunei, India, Laos, Singapore, and Malaysia, leaving a judge with no discretion over the sentence for defendants found guilty.

Mandatory death sentences violate international standards on fair trials. Individualized sentencing is required to prevent cruel, inhuman, or degrading punishment and the arbitrary deprivation of life. Singapore, which has one of the highest per capita execution rates in the world, as well as Malaysia, continue to hand down death sentences to individuals alleged to be drug traffickers after trials that presume guilt, and in which death sentences are mandatory.

Confessions that have been coerced sometimes form the basis of guilty verdicts, death sentences and executions. Competent legal assistance is unavailable to many defendants, including defendants facing drugs-related charges, leaving many with little capacity to mount a defense at any stage of the proceedings.

Draconian penalties for drug offenses, including the death penalty, hinder public health programs that reduce the harm drugs may cause to individual drug users, their loved ones, communities, and states. China, Malaysia, and Vietnam have recently stepped up their harm reduction programs to reduce HIV, hepatitis C and other drug-related health and social harms. However, excessive punishments and overly repressive drug law enforcement have been shown time and again to drive target groups away from such services. The death penalty therefore not only violates the right to life of those condemned, but is actually counterproductive to efforts to reduce the harm caused by drugs.

On the occasion of UN Anti-Drugs Day 2009, ADPAN, Amnesty International, Human Rights Watch and the IHRA appeal to Asian governments to:

Introduce an immediate moratorium on executions with a view to the abolition of the death penalty in line with UN General Assembly resolution 62/149 and 63/168 on "moratorium on the use of the death penalty";

Commute all death sentences, including for drug offenses;

Remove provisions within their domestic legislation that allow for the
death penalty for drug offenses;

Abolish the use of mandatory sentencing in capital cases;

Publicize statistics on the death penalty and facts around the
administration of justice in death penalty cases; and

Use the occasion of Anti-Drugs Day 2009 to highlight public health
policies that have proven effective in reducing drug-related harms.

(Source: Human Rights Watch, 23 June)

'Village court pronounces death penalty on witch'

The people of Dumurkotha, a tribal village, finally realized on Tuesday that the 3 women, branded as witches, will just not be able to revive Mamoni Murmu, who died on Saturday. Also, the kangaroo court sentenced one of the women, it described as the chief witch, to death. And, the village chiefs decided to bury Mamoni, as stench from her nearly decomposed body was creating problems.

They will also hold a kangaroo court regarding the action to be taken against the 3 women Sombari Mandi, Mukhi Mandi and Arati Murmu who had been locked up in a room with Mamoni's corpse since Saturday night and were released after 3 days.

"Mamoni went to bathe in a pond on May 30 with her maternal aunt. After that, she fell sick. We came to know that those three witches used evil forces with Mamoni's hair as strands of that were found on the soap she had used for her bath," said Baidyanath Murmu, Mamoni's father.

That was enough to sow the seeds of superstition. For, some of the villagers alleged that Mamoni mumbled the names of the 3 witches' repeatedly. Dumurkotha became dead sure that the 3 witches were responsible for Mamoni's death. Witch doctor, Uday Mondal, of Andharjora village, too, accused the 3 women of killing the girl.

On Tuesday, villagers freed Mukhi Mandi and Arati Murmu and identified Sombari Mandi as the chief witch, who was sentenced to death. She tried her best to convince the village chiefs and the villagers that it was a conspiracy against her. But nobody paid attention to her cry and some annoyed villagers even beat her up and none came to Sombari's rescue.

"I just got the information from your end. Actually, that area is troubled. I will try to send staff from the Binpur-I BDO office," said Narayan Swaroop Nigam, the West Midnapore district magistrate, on Monday.

Police did not come, citing their boycott by the villagers. Sombari, who was subjected to two hours of mental and physical torture by the kangaroo court, somehow managed to flee from the village. "The district administration will provide her with security if Mandi wants to live there again," assured Nigam.

(Source: The Times of India, 10 June)

Supreme Court: Capital punishment law unconstitutional

While striking off the death penalty of an accused in a 2001 kidnapping-and-murder case, the apex court has termed the capital punishment law "uncertain" and "falling foul of constitutional due process and equality principle."

Observing a "global move" away from death penalty, a division bench of SB Sinha and Cyraic Joseph suggested on May 13 -- "Credible research, perhaps by the Law Commission of India or the National Human Rights Commission, may allow for an up-to-date and informed discussion and debate on the subject." The ruling was made in a case where one Karthikraj Ramraj was kidnapped for a ransom and murdered by his friends, Santosh Bariyar,Sanjeevkumar Roy and Santoshkumar Roy in Bariyar's Pune residence. The Pune trial court in 2005 convicted all 3 accused. While Sanjeevkumar and Santoshkumar were sentenced to life, Bariyar was sentenced to death. This order was upheld by the Bombay high court.

The bench stated the method of weighing the aggravating and mitigating circumstances hasn't worked well "to remove the vice of arbitrariness" of our system.

The court observed that courts should provide clear evidence on why a convict is not fit for any reformatory or rehabilitation scheme before awarding capital punishment.

(Source: DNA India, 7 June)

Gruesome act does not mean 'rarest of rare' : SC

In a judgment having far-reaching consequences for married people having illicit relationships, the Supreme Court has quashed the death sentence of two people who killed the husband of a woman with whom they had an illicit relationship and three of his sons at a gurdwara in Punjab 15 years ago.
While upholding the state high court's reduction of death penalty to life imprisonment for Kamaljit Singh and Manjit Singh, sewadars at gurdwara Bara Sirhind in Sirhind, a bench of justices Mukundakam Sharma and BS Chauhan said that their behaviour was "driven more by infatuation". They did not find the brutal killings in this case as being "rarest of rare".
"Though the act is a gruesome one, it was a result of human mind going astray. No doubt, they acted in a ghastly manner for which, in our considered view, they have been adequately punished," the judges said while upholding the high court order that modified the death sentence to life imprisonment.
Their paramour, Bhinder Kaur, was also an accused and has been sentenced to life. Married to Sewa Singh, the municipal commissioner of Sirhind City, Bhinder Kaur's extra-marital relationship with the accused did not escape her family. She had to cut down her meetings with Kamaljit and Manjit. Bhinder Kaur had three grown-up sons, Rachhpal Singh alias Happy, Inderjit Singh and Kuldeep Singh, who too served at the gurdwara.
After she told them the reason she was not able to meet them, the accused "lost their balance and acted in a cruel manner" by entering Sewa Singh's house at night and killing him there. The three sons were killed in the gurdwara. For a case to be regarded as "rarest of rare", the court observed, after committing one offence another offence is committed to cover up the first one.

Mercy Petition Withdrawn

This news item was reported in the sunday Indian Express on 31 May 2009. It clearly states that the person on the death row is fed up with the conditions she has been forced to live in and thats the only reason she wants the death sentence to be carried out. She has voluntarily withdrawn the mercy petition filed before the President of India but it highlights the plight of the persons on death row across India and the conditions they are kept in. Below are the excerpts from the article and the link to the article.

Almost five years after she and her husband were convicted for murdering eight people, including her father, former independent MLA in Haryana Relu Ram Punia, and three children, Sonia wants to be hanged at the earliest. And she may get her wish too.
For, following her letter seeking rejection of her mercy petition, Union Home Minister P Chidambaram has written to President Pratibha Patil recommending that the mercy petitions of the husband and wife be rejected and the death sentence carried out.

http://www.indianexpress.com/news/let-me-die-says-woman-on-death-row-for-killing-8-govt-tells-president-show-no-mercy/468634/

SC censures NHRC for interfering in judicial work

NEW DELHI: The Supreme Court on Friday censured the apex human rights body for interfering in the judicial sentencing system by recommending to the Assam governor to commute the capital punishment awarded to a murderer to life imprisonment. On the recommendation of the National Human Rights Commission, the governor had commuted the death sentence of one Rajnath Chauhan aka Ramdeo Chauhan to life imprisonment. This decision was challenged in the SC by the victim's family.

A Bench comprising Justices Arijit Pasayat and A K Ganguly reversed the governor's order and asked him to reconsider his decision in the light of an earlier judgment of the apex court relating to exercise of the constitutional power on clemency.

The Bench asked a basic question to NHRC -- "Who has violated the human rights of Chauhan?" Terming the human rights body's response, "when any action violated the human rights, there can be violation of the human rights", as evasive, the Bench said such a situation was not conceivable since the cause of the alleged violation of the human rights was the SC's judgment awarding him death penalty.

Terming the recommendation of NHRC as "without sanction of law", the Bench said the proceedings initiated by the apex human rights body were not in line with the procedure prescribed in the NHRC Act. "That being so, the recommendations, if any, by the NHRC are non est," it said.

"The State of Assam has indicated that not only the recommendations of the NHRC but several other aspects have been taken note of. But, the order directing commutation does not indicate any reason. This is contrary to what has been stated by the apex court," said Justice Pasayat, writing the judgment for the Bench.

"We, therefore, set aside the order of commutation of death sentence to life imprisonment and direct reconsideration of the application filed by Chauhan for commutation of sentence," the Bench said.

(Source: TIMES OF INDIA 9 May 2009, 0201 hrs IST, Dhananjay Mahapatra, TNN)

Landmark Supreme Court case

The Supreme Court case of Santosh Bariyar v State of Maharashtra was decided on 13 May 2009 in a judgment delivered by Justice S.B Sinha. The case is a landmark decision by the Supreme Court which places strict limitations on the circumstances in which a death sentence may be handed down.

The Supreme Court revisits the Bachan Singh judgment and finds that Bachan Singh requires a mandatory pre-sentence hearing stage in cases where the death penalty may be given. At the pre-sentence hearing evidence on sentencing must be adduced. This evidence must relate not only to the crime, but also the criminal, including his or her socio-economic background. This marks a significant restriction on the sentencing powers of the courts in death penalty cases. In order for a death sentence to be awarded the prosecution must show that the alternative option of life imprisonment is foreclosed. In practice this means that the prosecution must show that the rehabilitation of the defendant is impossible.

Some excerpts of the Santosh Bariyar judgment are set out below:

The Supreme Court highlighted the importance of individualised sentencing in death penalty cases. It then went on to extend the ‘rarest of the rare’ doctrine to the sentencing stage of a death penalty case. The Court emphasized the importance of examining all the evidence in the case at the sentencing stage of the case.

The Court observed that:

“…what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender… Circumstances which may not have been pertinent in conviction can also play an important role in the selection of sentence”.

One such circumstance is the probability that the accused can be reformed and rehabilitated. The Court, interpreting Bachan Singh noted that:

“Bachan Singh laid down a fundamental threshold in the following terms:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Court went on to observe that:

“An analytical reading of this formulation would reveal it to be an authoritative negative precept. “Rarest of rare cases” is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of “when the alternative option is unquestionably foreclosed”. Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy double qualification enumerated below:

that the case belongs to the rarest of rare category;

and the alternative option of life imprisonment will just not suffice in the facts of the case”

The Court then stated that the rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception and that the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

“The background analysis leading to the conclusion that the case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception”.

The Supreme Court examined a range of cases in which the death penalty had been awarded and a number of cases in which defendants convicted of murder received life sentences and noted the lack of uniformity in sentencing:

“It can be safely said that the Bachan Singh threshold of “rarest of rare cases” has been most variedly and inconsistently applied by the various High Courts as also this court. At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates to death penalty – the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle”.

The full text of the judgment is available at: http://docs.google.com/Doc?id=dg5pxzvr_52c2kcrqdp