Friday, 27 August 2010

Pakistan: Asian rights group calls for abolition

PAKISTAN: Government urged to commute all death sentences and abolish the death penalty
August 26, 2010

Fifteenth session, Agenda Item 3

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

The Asian Legal Resource Centre welcomes the discussion by the Human Rights Council during its 15th session concerning the report of the Secretary General on the question of the death penalty. In light of this discussion, the ALRC is hereby submitting information pertaining to the death penalty in Pakistan. The government of Pakistan has failed to abolish the death penalty in spite of the pledge it made in 2008 to commute death sentences to life imprisonment. According to estimates, there are around 7400 prisoners on death row1, the largest number in any country in the world. This number constitutes around one third of the death row prisoners in the world. It must be noted that the government has not carried out judicial executions since September 2008, which are typically carried out by hanging in Pakistan, but condemned prisoners remain seriously concerned for their future, as do their family members, while the death penalty remains in place. Many among them have already spent more than 10 years in prison. The ALRC recalls that prolonged detention on death row is at the very least cruel and inhuman treatment and therefore constitutes a violation of these persons' rights in of itself.

Prior to the present hiatus to executions, Pakistan was amongst the countries in the world which executed the highest number of persons each year. To date 128 countries have abolished the death penalty, and of those that have not, only around half carry out executions. Pakistan voted against a United Nation General Assembly resolution for a moratorium on the death penalty in December 2007.

The government of Pakistan has promised since June 21, 2008 to commute death sentences on several occasions, but little action has been taken to put this into effect. Reports have indicated that in some prisons, prisoners sentenced to death have been moved from death row cells to other barracks, but remain separated from other prisoners. Pakistan’s death penalty has been commuted before. Former Prime Minister Zulfiqar Ali Bhutto and founder of the current ruling party, the Pakistan People's Party, commuted the death sentence to life imprisonment but he was later executed by the military.

The country's parliamentary bodies - the national assembly and senate - in mid-April 2010 approved the eighteenth amendment to the Constitution of Pakistan, deleting the majority of the amendments made by past military rulers, but the parliament has not touched the amendment made to the constitution by General Zia Ulhaq comprising the death penalty. In the 1970s, the government led by the late Zulfikar Ali Bhutto raised the minimum term of a life sentence from 14 to 25 years with the idea that capital punishment would be abolished in the years to come. However, this did not materialize and General Zia, the country's military ruler from 1977 to 1988, kept both the death penalty and the increased life sentence intact through an ordinance which was later incorporated in the Constitution. Mr. Bhutto was later hanged in 1979. Former President Musharraf did nothing to alter either the death sentence or the minimum term.

Pakistan’s legislators also did not attempt to commute the death sentence in the eighteenth amendment, allegedly because of pressure by Islamic fundamentalist parties. The federal cabinet decided on July 2, 2008 to commute the death sentence, but due to pressure from Muslim fundamentalists and a Suo Moto action from the then-Chief Justice of Pakistan, Mr. Abdul Hameed Dogar, who had been appointed by former president General Musharraf during the state of emergency, the government avoided issuing a formal notification commuting death sentences.

When Pakistan was founded 63 years ago, only murder and treason carried the death penalty. Now the death penalty can be handed to persons found guilty of 27 'crimes' including blasphemy, stripping a woman in public, terrorist acts, sabotage of sensitive installations, sabotage of railways, attacks on law enforcement personal, spreading hate against the armed forces, sedition, and many more.

Although the Pakistan Juvenile Justice System Ordinance was extended to apply nationwide in 2004, implementation remains limited. This is the case notably as, also in 2004, the High Court in Lahore revoked this ordinance, which exempted those under the age of 18 years from execution. An appeal is still pending. Pakistan is one of just five countries in the world to have executed a minor/juvenile offender in recent years. In one such case, Mutabar Khan was hanged on June 13, 2006 for a crime committed when he was 16, and the authorities of another jail, Mach Central Jail, have acknowledged holding two juvenile offenders on death row. Often, after years of trial defendants will have trouble convincing the judge that they were actually underage when they broke the law.

The country's two parallel judiciary systems, one secular and other one based on Shariah laws, creates a situation in which the death penalty has been handed out in ways that do not satisfy the requirements of the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified on June 23, 2010. The Islamic Shariah Courts are quick to hand out death sentences following trials that do not meet the internationally accepted standards of fair trial. The judicial bodies in the country follow Islamic injunctions and are a significant hindrance to the abolishment of the death penalty.

Pardons concerning death sentences can only be given by the victims. Death sentences are usually settled after a blood money payment called diyat and courts will often urge family members to resolve matters out of court. Human rights NGOs have branded this the 'privatisation of justice' and it tends to give the wealthy impunity. Because of diyat payments it is suspected that death penalties are dealt out more freely, because judges assume a settlement will be found.

Many among the 7,400 on death row are there as a result of the blasphemy law, under which crimes carry an obligatory death sentence, but for which evidence is often tenuous or involves personal vengeance. Section 295C of Pakistan's Penal Code provides the death penalty for "Whoever by words, either spoken or written, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of The Holy Prophet (Peace be Upon Him)".

This law is vague and open to abuse, notably against non-Muslims in Pakistan. It represents a severe limitation on religious freedom, as it effectively targets religious minorities. The law is also used by Muslim fundamentalist groups against liberal Muslims. The law has also often been used by those with personal grudges, as well as against Muslims who have converted to Christianity. When Pakistan's former president, General Musharraf, considered amending the law to limit such potential abuses, pressure from Islamic hardliners caused him to abandon these amendments, so the law remains, with all its flaws. An accusation of blasphemy commonly subjects the accused, as well as police, lawyers, and judges involved in the case, to harassment, threats and attacks. An accusation is sometimes the prelude to vigilantism and rioting.

Pakistan ratified the International Covenant on Civil and Political Rights in April 2010, which was signed by the President in June. While these steps are welcome, the ALRC believes that it is imperative for the government to also take immediate steps to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Recommendations: As stated above, Pakistan currently has around one third of the world’s death row prisoners, so any discussion of the issue of the death penalty must address this situation. The Asian Legal Resource Centre urges the Council to take all necessary steps to ensure that the government of Pakistan:

i. Provides immediate guarantees that none of the estimated 7400 death row prisoners will be executed.
ii. Commutes all death sentences to life imprisonment.
iii. Without delay abolishes the death penalty.
iv. Ratifies the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, bringing domestic legislation into line with its international obligations and ensuring the full implementation of this legislation.
v. Repeal the Blasphemy law and free all persons being detained pursuant to this law.


1 According to ALRC sources as well as reports by Amnesty International and the Human Rights Commission of Pakistan# # #

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

Posted on 2010-08-26

Tuesday, 24 August 2010

Bangladesh death penalty dangerous, corrupt

BANGLADESH: Death penalty continues despite a flawed criminal justice system
August 23, 2010

Fifteenth session, Agenda Item 4, General Debate

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

1. The Asian Legal Resource Centre welcomes the discussion by the Human Rights Council during its 15th session concerning the report of the Secretary General on the question of the death penalty. In light of this discussion, the ALRC is hereby submitting information pertaining to the death penalty in Bangladesh. Bangladesh acceded to the International Covenant on Civil and Political Rights (ICCPR) on September 6, 2000, but has not yet ratified the Optional Protocols to the ICCPR and also does not comply with the international law aiming to the abolition of death penalty. The country has not only executed its citizens for decades, but officials, including Ministers, Parliamentarians and Judges also advocate publicly in favour of this practice, which denies people's right to life, often as the result of trials that do not meet the internationally recognized standards of fair trial.

2. The Asian Legal Resource Centre (ALRC) has learned from a reliable Home Ministry source, who requested anonymity, that there are around 407 convicts currently being detained in prisons across the country that face execution in the upcoming periods. Among the convicts, around 107 are being detained in Dhaka Central Jail, with the rest being detained in the country’s other main prisons. The high profile cases of execution to have taken place in Bangladesh include the death by hanging of five convicts on 28 January 2010 for the assassination of Bangladesh’s founder, President Sheikh Muzibur Rahman, who was killed by members of the Bangladesh Army along with almost all of his family members on 15 August 1975. In another case, six members of militant groups were hanged after being sentenced to death for the killing two judges in suicide bomb attacks in Jhalkathi district in 2005. Since its establishment in 1971 the Bangladeshi State has executed by hanging over 250 convicted criminals.

3. The country's Penal Code-1860 has several provisions that allow for capital punishment: Section 121: waging war against Bangladesh; Section 132: abetment of mutiny, if mutiny is committed; Section 194: giving or fabricating false evidence with intent to procure conviction of capital offence; Section 302: murder; Section 305: abetment of suicide of child or insane person; Section 307: attempted murder by life-convicts; and Section 396: robbery with murder.

4. There are several other laws in Bangladesh that also provide for the death penalty. The draconian Special Powers Act-1974, provides the death penalty for the offences of sabotage under Section 15, counterfeiting currency notes and Government stamps under Section 25A, smuggling under 25B, and adulteration of, or sale of adulterated food, drink, drugs or cosmetics under Section 25C. It is evident from the above that the death penalty is awarded for crimes that do not meet Bangladesh’s obligations under the ICCPR's Article 6(2) to ensure that death sentences "may be imposed only for the most serious crimes."

5. The Nari o' Shishu Nirjaton Daman Ain-2000 [Women and Children Repression (Prevention) Act-2000] further provides for the death penalty to be awarded as punishment for offences or attacks committed using corrosive, combustible or poisonous substances that cause burns or physical damage leading to the death of the victim, under Section 4; for trafficking of women and children, as per Sections 5 and 6 respectively; for ransom, according to Section 8; for sexual assaults resulting in the death of any woman or child who dies consequently, as per Section 9(2); causing death for dowry, in Section 11; and maiming or mutilation of children for begging, under Section 12. The Acid Crime Control Act-2002’s Section 5 (KA) also includes the death penalty for acid attacks on women if the victim's eyes, ears, face, chest or sexual organs are fully or partially damaged.

6. The legislative authorities of Bangladesh argue that the death penalty is necessary for maintaining control over serious crimes in the country and to transmit a message to potential offenders that committing murder will ultimately incur the death penalty. Pro-death penalty advocates in the country claim that the death penalty helps the nation to establish peace and justice in its society as part of upholding the rule of law. This alleged deterrent is shown to not be working effectively, as incidents of serious crimes rise each year. For example, according to the statistic contained in the website of the Bangladesh Police, there were 3592 murders during 2005 and 4219 murders in 2009.

7. The ALRC opposes the death penalty under all circumstances as a cruel practice that is shown to be an ineffective deterrent and open to serious abuse. No legal system in the world functions well enough to guarantee that errors in awarding the death penalty can be totally avoided, and in countries with deeply flawed criminal justice systems such as Bangladesh and most others in the Asian region, the use of the death penalty gives rise to serious travesties of justice and arbitrary, unjust and irrevocable violations for the right to life.

8. Bangladesh's criminal justice system has manifold problems:

a. There is an absence of fairness and transparency in its complaint mechanism. The police arbitrarily control the complaint mechanisms, which are subverted by political interference and a chain of command dominated by corruption from the bottom to the top, resulting in abuses of power and injustices in determining who will be charged and for what crime. The fabrication of cases by the police officers for the purpose of extorting money from targeted persons and/or in order to set the real offender free is a common practice. The police deliberately distort facts related to crimes at the time of recording of complaints, which obstructs the already limited avenues available to the victims seeking justice and redress.

b. Criminal investigations are conducted by the police using primitive methods without acceptable levels of professionalism and efficiency. As a corrupt and political subservient entity, the police force is mostly used as hired gunmen of the ruling political and other authorities and elites.

c. The prosecutorial system is politicised, inefficient, disposable by nature, and incapable of assisting the judiciary to establish justice at the end of the trial. Every political party recruits their own activists cum lawyers as prosecutors, based on their loyalty to the ruling authorities rather than their knowledge of the law, jurisprudence and commitment to the rule of law.

d. The judiciary does not enjoy independence as far as the administration of justice is concerned in terms of logistics, manpower, integrity and the adjudication of the cases. Besides, there is a serious lack of judicial competence and commitment to upholding the rule of law among many judicial officers.

e. The country’s medico-legal system remains archaic and far off internationally acceptable standards and modern methods required to effectively assist the judicial process in determining rights or wrongs and forensic evidence accurately.

f. The legal profession is degraded and consists mainly of persons hunting cases to make the maximum money for their professional practices, rather than to assist the judicial procedures to ensure justice to both victims and the defendants in trials in the country’s courts.

g. The State's entrenched system designed to protect the perpetrators of gross human rights abuses through and extensive culture of impunity, creates serious grievances and a loss of faith in the justice institutions for victims of, for example, illegal arrests, arbitrary detention, custodial torture, extra-judicial killings and disappearances, as well as for their and the wider public who also live in a climate of fear.

h. The absence of interpersonal respect for each other and adequate cooperation among professionals, including the police that register the complaint, investigators, prosecutors, lawyers, medico-legal experts and supporting staff of the judiciary seriously hamper the effective and timely conduct of trials and administration of justice.

i. Inadequate remuneration and facilities for relevant professional experts as well as their supporting staff, poor infrastructure for maintaining material evidence, and the failure to recruit persons with the required educational, moral and ethical background, or to provide adequate training contributes to the further deterioration of the criminal justice system.

9. The reality regarding the criminal justice system must be understood to evaluate how dangerous the use of the death penalty can be in Bangladesh. Realistic policies followed by prompt actions must be in place in order to reduce the recurrence of crimes that are currently punished by the death penalty instead of continuing with this failed deterrent.

10. Bangladesh's constitution's Article 35 (5) prohibits "torture, cruel, degrading or inhuman punishment or treatment". There can hardly be any debate that the death penalty does not amount to cruel punishment, which is prohibited in the country's supreme law. In fact, such cruel punishment comprises a violation of the Constitution by undermining the natural dignity of human beings.

11. The Asian Legal Resource Centre urges the government of Bangladesh to abolish the death penalty immediately and to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and bring its domestic legislation and practices in line with obligations under this instrument. The Bangladeshi authorities should immediately initiate thorough reforms of the country’s criminal justice system, in order to establish the rule of law and the enjoyment of rights, justice and peace in its society.

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

Posted on 2010-08-23

Saturday, 14 August 2010

Bali appeals with Indonesian court

Two Bali Nine convicts lodge death sentence appeals
Desy Nurhayati, The Jakarta Post, Denpasar
Sat, 08/14/2010 9:46 AM

Two Australian drug convicts on death row have formally launched final appeals on Friday, seeking to have their sentences commuted to 20 years in prison.

Attorneys for Andrew Chan and Myuran Sukumaran, members of the so-called "Bali Nine" syndicate of heroin smugglers, lodged the appeal to the Supreme Court via the Denpasar District Court.

Attorneys Todung Mulya Lubis said the appeal was not filed on the basis of new evidence, but due to a misapplication of the law by the judges.

"We filed the appeal as we consider this case violates the right to life. It is a basic right guaranteed in our Constitution," he said, adding that the death sentence would not discourage people from committing crimes and violated human rights.

He said that according to the UN, the death penalty should only be imposed for the most serious crimes, which excludes drug-related crimes.

"It's true they should be punished, but they don't deserve the death penalty. We are seeking to have it reduced to a 20-year prison term."

Chan, 26, and Sukumaran, 29, were convicted for an attempt in 2005 to smuggle 8.3 kilograms of heroin from Bali to Australia.

In the appeal, both argue that they had been successfully rehabilitated and were now teachers and role models for fellow inmates at Kerobokan Prison.

"The judges should take into consideration that both convicts have changed a lot. They teach their fellow inmates skills such as operating computers and painting."

The appeal also argues that previous rulings against the pair erred by finding them guilty of exporting drugs. It said the pair should have been given more lenient sentences because while they attempted to export the drugs, they did not succeed in doing so.

"Technically speaking, there was no export of the drugs. An attempt to export is not the same as exporting," Todung said. attorneys Nyoman Sudiantara said the pair’s legal team would request that both men be present at the appeals hearing.

Four witnesses will be called to testify at fresh hearings, likely to begin next month. They a prominent Australian psychologist from Monash University Paul Mullen, prominent Ireland-based human rights law expert William Schabas, Kerobokan Prison head Siswanto and former Indonesian Supreme Court justice Yahya Harahap.

Chan and Sukumaran are launching their appeal less than a month after fellow death row inmate Scott Anthony Rush launched his own. If this final appeal fails, the three men will be left with one last chance to avoid the death sentence — clemency from President Susilo Bambang Yudhoyono.

Five other members of the drug smuggling plot are serving life sentences in Bali’s Kerobokan Prison.

Of the remaining two, Martin Stephens’ judicial review is currently being considered by the Supreme Court, while courier Renae Lawrence is serving a 20-year prison sentence.

Friday, 13 August 2010

Indonesia: remorse appeal for life

Bali nine pair admit guilt in bid to avoid firing squad
Tom Allard
From: The Sydney Morning Herald
August 13, 2010

Sydneysiders Andrew Chan and Myuran Sukumaran have, for the first time, admitted their role in the Bali nine heroin smuggling syndicate, but asked to be handed a 20-year prison term as they launch their final judicial appeals to avoid the firing squad.

The admission of guilt, contained in documents submitted to a Denpasar court today, follows repeated pleas of not guilty at three previous trials.

The two were arrested with seven other Australians in 2005 for trying to smuggle eight kilograms of heroin from Bali to Australia.

Chan and Sukumaran were found guilty of smuggling the drugs and sentenced to death at the three other trials, accused of being the ringleaders of the plot.

The appeal requests the Indonesian Supreme Court consider their efforts to rehabilitate themselves and take on leadership roles in Kerobokan prison by training other prisoners in skills to prepare them for life outside the prison walls.

Both Chan and Sukumaran acknowledge that what they did had been harmful to the community and themselves, but that they had vowed to be "better" men.

Their court submissions argue both have "changed radically" since being imprisoned.

As for their lack of previous co-operation with authorities, Chan and Sukumaran apologise and put it down to an "inability to think clearly".

Sukumaran's submission argues he was traumatised by the arrest in a foreign country and had "poor advice from a certain party".

As required by law, the judicial review is based on legal argument that previous rulings made manifest errors, including not properly considering that the two had been rehabilitated and a finding by Indonesia's constitutional court that the death penalty should only be used sparingly as a "special and alternative punishment".

Sukumaran's submission also argues that Indonesia has signed the UN convention of civil and political rights, a treaty which underpins a body of international law that explicitly rejects the use of the death penalty for narcotics crimes.

Evidence from other members of the Bali nine needs to be treated with caution, it says. It also cites the Indonesian constitution's recognition that all people have a basic right to life.

A key argument is that previous rulings had mistakenly found them guilty of exporting drugs. As the drug mules were arrested before they left Indonesia's customs area at Denpasar airport, the judicial review argues that the act of exporting did not take place.

Rather, they had only attempted to smuggle the heroin to Australia.

"An attempted crime is usually subject to a more lenient sentence compared to one that has been completed. This is because of the consequences that arise differ between the two crimes," the judicial reviews say.

"The narcotics did not reach its users."The fact that the crime was only an "attempt", and that Chan and Sukumaran had made strong efforts, with the assistance of prison officials, to rehabilitate themselves warranted a 20-year sentence, they argue.

The trial of Chan and Sukumaran is likely to begin in a couple of weeks and a verdict handed down before the end of the year.

The other Bali nine member facing the death penalty, Scott Rush, launched his final appeal last month. Rush's first hearing before the court is on Wednesday.

Tom Allard is the Herald's correspondent in Indonesia.