Sunday, 28 February 2010

South Korea: News report on constitutional court

Constitutional Court upholds the death penalty
From: The Hankyoreh, 27 February 2010

The ruling is expected to revive a debate over the death penalty as South Korea has not carried out a death sentence in 13 years and is classified as “abolitionist in practice”

The Constitutional Court ruled yesterday the death penalty system as prescribed by South Korea’s criminal code is not in violation of the Constitution. However, since six of the nine judges expressed the view that the currently operating system presents misuse and abuse concerns that should be addressed, observers are predicting a revival in the debate over revision and abolition of the death penalty.

In its ruling Thursday on the constitutionality of Article 41 in the Criminal Code, containing clauses regarding the death penalty, the Constitutional Court ruled five to four that the article is constitutional. The request for a constitutionality review was submitted earlier by Gwangu High Court. The court stated that the death penalty system “is a type of punishment anticipated by the Constitution.” It also said, “We cannot view the death penalty system as being in violation of Article 10 of the Constitution specifying human dignity and values, and the individual right to life is also included in the limitations on basic rights as specified by Article 37, Item 2 of the Constitution.”

The court added, “The public good, including the protection of the lives of citizens through crime prevention and the realization of justice, is not lesser than the protection of the right to life of a person who has committed a heinous crime.”

In contrast, the four dissenting judges said, “With the right to life, limitation means taking away an entire life, and it is therefore an absolute fundamental right that cannot be taken away by the Constitution.” They also expressed the view that the death penalty system should be abolished through measures such as the implementation of life imprisonment without possibility of parole.

Among the judges who ruled in favor of the death penalty’s constitutionality, Justices Min Hyeong-ki and Song Doo-hwan also suggested improvements to the current system. They stated, “It would be desirable to reduce the crimes subject to the death penalty and to amend or abolish the system through legislation rather than through a constitutionality trial.”

Previously, Gwangju High Court requested a constitutionality ruling from the Constitutional Court in September 2008 after receiving a request from an individual, identified by the surname “Oh,” who was charged with murdering four travelers in the costal waters off Boseong County in South Jeolla Province. The court’s decision over the death penalty is its first in over thirteen years. In November 1996, it issued a seven to two ruling affirming the constitutionality of the death penalty.

Currently, there are 57 prisoners in South Korea with confirmed death sentences, while there are two cases, including Oh’s, where the cases are pending in lower courts following a death sentence in the first trial. Ever since carrying out the execution of 23 people in late 1997, however, South Korea has not carried out the death penalty in twelve years and was classified by Amnesty International as “abolitionist in practice.”

In a statement on the Constitutional Court ruling Thursday, the Korean Bar Association called abolition of the death penalty “not simply an improvement of the criminal justice system but an index symbolizing the prestige of the state.”

The Korean Bar Association statement also said, “It is highly regrettable that the Constitutional Court could not go so far as to issue ruling of unconstitutionality when South Korea has been classified as an abolitionist country in practice.”

South Korea: "Dangerous decision" upholds death penalty

Editorial: Dated logic in Constitutional Court’s death penalty decision
From: The Hankyoreh, 27 February 2010

The Constitutional Court ruled Thursday that South Korea’s death penalty system is not in violation of the Constitution. Their ruling comes on the heels of the constitutional ruling over the same issue in 1996. At that time, the Constitutional Court said, “Although the death penalty system should be abolished, it is premature to annul the system at this time.”

Since the 1996 ruling, 38 countries around world have joined the list of countries that have abolished the death penalty, bringing the total number of countries who have abolished the death penalty in law or in practice to 139. Abolishing the death penalty is also a precondition of joining the European Union. The abolition of the death penalty has now become a measuring stick to determine which countries are advanced in human rights.

There is no reason for South Korea to lag far behind in this trend. South Korea has been recognized by Amnesty International as “an abolitionist in practice.” Many Korean citizens feel pride when reflecting upon our society’s development and the further enhancement of our collective consciousness. This new era has not changed direction, but rather the Constitutional Court has chosen to remain in the past. We cannot help but to ask whether the Constitutional Court’s decision reflects their attempt to read the minds of conservative factions in our society.

The logic that the Constitutional Court issued a decision in line with the Constitution is dated. The Constitutional Court justices issuing the majority opinion stated, “The death penalty is a legitimate punishment for heinous crimes, and by instating the death penalty, we can prevent those types of crimes from occurring.” The argument that capital punishment is related to crime prevention is an outdated theory. There is a wide consensus that it is difficult to prevent crimes through instating heavy-handed punishments. The possibility also exists that authorities could wield power as they wish using the logic of “proper punishment.”

In fact, current law in South Korea classifies 110 crimes in 20 laws as the subject to a death penalty sentence, however, heinous crimes comprise just 12 of the crimes including murder with intent. Because other crimes subject to a death penalty sentence include political offenses, criminal ideological violations, corporate offenses and administrative offenses, the possibility for serious abuse of the application of the death penalty exists.

We think the Constitutional Court has made a dangerous decision to uphold the death penalty, which will result in the restriction of basic human dignity rights. The Constitutional Court argued that there is no stipulation addressing the recognition of these types of absolute basic human rights. However, restrictions upon the right to life mean that the government can deprive a person of their life as a whole. In extenuating circumstances, no one can bring back a life that was wrongfully terminated by an incorrect application of the death penalty. Therefore, it is our belief that the death penalty infringes upon the basic right to life and is unconstitutional.

The justices who voted to uphold the death penalty, however, also demanded revisions to the death penalty system. This means that they also agree that it would be improper to allow the current death penalty system to continue as is. The lawmakers of the National Assembly should revise related law by accepting the spirit of the Court’s decision. The government also should also continue its past practice and refrain from executing prisoners on death row.

South Korea: Up to parliament to abolish death penalty

Capital Punishment
Editorial: Legislature Should Do What Judicature Failed to Do
From: The Korea Times, 26 February 2010

The Constitutional Court's ruling to uphold the death penalty Thursday shows Koreans' consciousness advances frustratingly slower than their economic development.

In a 5-4 decision, the top court said in effect that although capital punishment should be abolished someday, it is still too early to do so now. It was the same logic the nation's highest tribunal used 13 years ago when it also ruled the state's taking of citizens' lives constitutional.

Equally anachronistic are the reasons the court cited for retaining the ultimate penalty. The majority of judges wrote that capital punishment is the "rightful reward" for and "effective prevention" of heinous crimes. But penal studies both here and abroad have long found the death penalty neither deters crime nor provides a sense of closure for victims' families.

Even more importantly, there remains an unforgivable ― and irrevocable ― risk of executing an innocent person, which explains why the right to life must not be limited in any way and under any excuses, despite what the judges said. This is especially true in Korea, where there are as many as 110 offenses punishable by death with only 12 of them being atrocious crimes, and most others, political, economic and ideological ones.

All this testifies to why 139 countries have either completely or partially done away with capital punishment. Korea for its part has stopped executions since the inauguration of former President Kim Dae-jung, himself a one-time death-row convict, in 1998.

Considering the world's three biggest economies ― the United States, Japan and China ― are among the 58 countries that retain the death penalty, this seems to have more to do with national dignity than economy. The EU has made its abolition as a precondition for membership.

However Koreans may think their country is advanced and prestigious, it would appear as little more than another brutal state to people in the old continent, the birthplace of democracy and modern civilization.

It is hard to deny the top tribunal's ruling reflects the popular sentiment here, which reportedly favors the death penalty at a ratio of 6 to 4. Not many countries, however, have done away with death penalty following public opinion. When France abolished capital punishment in 1981, for example, 60 percent of its people supported it. A decade later, the same percentage approved its abolition.

Probably in light of all these circumstances, the court referred this issue to the court of the legislature. The National Assembly has toyed with its abolition throughout the past decade but taken no concrete action. It is time for the Assembly, especially the governing Grand National Party, to take the lead in the repealing of laws on capital punishment, if for no other reason than lifting the "national prestige," as the Lee Myung-bak administration has been addressing so emphatically.

Koreans should also realize this is not a matter between death-row convicts and the rest of the citizens but an issue between the state power and all citizens. It was only some decades ago that dictatorial regimes committed "judicial murders" of political dissidents and other innocent people under false charges of state subversion.

South Korea: "TIme to move" against death penalty

EDITORIAL: Capital punishment
From: The Korea Herald, 27 February 2010

In its second ever decision on capital punishment, the Constitutional Court ruled that capital punishment is constitutional.

The Constitutional Court's ruling on a petition filed by a provincial appeal court at the request of a 72-year-old man convicted of murdering four people upheld that the death penalty is a necessary punishment to protect the lives of the majority.

However, the 5-4 decision showed the Constitutional Court moving toward the abolition of the death penalty. In the 1996 ruling on the constitutionality of capital punishment, the court had ruled 7-2 to uphold the system. At the time, the court said that it was not proper to immediately abolish the capital punishment system, "given our current culture and reality." That statement had indicated that the Constitutional Court was in favor of abolishing the death penalty over time. Apparently, 13 years was not enough time to move away from the capital punishment system, which its opponents claim is state-sanctioned murder.

However, two of the concurring judges suggested gradually fixing the capital punishment system by limiting the types of crimes that are punishable by the death penalty and also reflecting the social milieu of the time. They said it would be preferable to resolve the issue through legislation at the National Assembly.

Indeed, Thursday's ruling is significant in that it asked the National Assembly to take up the issue. Given the controversial nature of the death penalty - both its opponents and supporters are unequivocal about their stance on the issue - the National Assembly is an appropriate forum for a meaningful discussion of the matter.

A 2006 National Human Rights Commission report said that about 70 percent of the population favored the death penalty. The proponents of capital punishment claim that with some 1,000 murder cases occurring every year, the death penalty should be maintained as a deterrent against heinous crimes.

However, the decision on whether to maintain the capital punishment system or to abolish it should not be left up to public opinion. Our National Assembly has failed to deal with laws on many controversial social issues - including abortion, adultery and the death penalty. Many of these matters have been brought to the courts for the Constitutional Court to decide. The Constitutional Court, on the other hand, has suggested that these matters should be decided by the legislature. The National Assembly should take a proactive position and not wait for the Constitutional Court's next ruling on the death penalty system.

Since President Kim Dae-jung - who was himself sentenced to death in 1980 but later pardoned - took office in February 1998, there have been no executions in this country. While there are 59 inmates on death row, Amnesty International in 2007 categorized Korea as having "virtually abolished capital punishment."

There are two bills on abolishing capital punishment that are languishing at the Legislation and Judiciary Committee of the National Assembly. The lawmakers should start deliberating on this crucial issue that is often seen as a mark of a country's level of civilization.

Around the world 95 countries have abolished capital punishment while 58 countries maintain the system. Another 35 countries maintain the death penalty but have not carried out an execution for 10 years or more. Clearly, the trend is toward the abolition of the capital punishment. The time has come for Korea to make the move toward abolishing capital punishment.

Thursday, 25 February 2010

South Korea: "Lost opportunity" to abolish death penalty

Statement from The Anti Death Penalty Asia Network (ADPAN)
25 Feb, 2010

South Korea: ADPAN regrets the Constitutional Court decision to uphold the death penalty

The Anti Death Penalty Asia Network (ADPAN) that is currently attending the 4th World Congress against the Death Penalty in Geneva regrets today's decision by South Korea’s Constitutional Court to uphold the death penalty.

In a five to four ruling, the Constitutional Court stated that death penalty did not violate "human dignity and worth" protected in the Constitution.

South Korea has lost an opportunity to lead on abolition in the region. This decision now goes against a general worldwide trend towards abolition. More than 70 per cent of countries have a moratorium on executions or have abolished the death penalty. It is particularly disappointing given South Korea has not executed in over 12 years and has joined many other countries in the world that have become abolitionist in practice. There are currently 57 people on the death row in South Korea.

Asia holds the record for the highest number of executions in the world. ADPAN representing a regional voice for abolition calls on South Korean government to take a lead and follow other countries in the region that have abolished death penalty: the Philippines in 2006 and the Cooke Islands in 2007.

The Anti Death Penalty Asia Network(ADPAN) is a cross-regional network made up of over 40 members including lawyers, NGOs and human rights activists from 22 countries. Members are attending 4th World Congress against the Death Penalty which is being held in Geneva from 24 – 26 February.

Saturday, 20 February 2010

Australian laws to ban death penalty

20 February 2010


Successive Australian Governments have maintained a long-standing policy of opposition to the death penalty.

The death penalty has been formally abolished by all jurisdictions in Australia.

It was abolished for Commonwealth and Territory offences in 1973 by the Commonwealth Death Penalty Abolition Act.

Each State has also independently and separately abolished the death penalty and there are no proposals by any State Government to reinstate it.

The Australian Government has also introduced legislation – which has been supported by the Opposition – to amend the Death Penalty Abolition Act to extend the application of the current Commonwealth prohibition on the death penalty to State laws.

The passage of this comprehensive federal legislation, which is currently being debated in the Parliament, will ensure that the death penalty cannot be reintroduced anywhere in Australia in the future.

Internationally, Australia is also a party to both the International Covenant on Civil and Political Rights and the Second Optional Protocol which requires all necessary measures be taken to ensure that no one is subject to the death penalty.

Saturday, 13 February 2010

China: Guidelines for executions and "mercy"

China issues guidelines to limit death penalty use
From: Xinhua, 9 February 2010

BEIJING, Feb. 9 (Xinhua) -- China's Supreme People's Court (SPC) said Tuesday it had issued guidelines for courts nationwide to handle criminal cases with a policy of "justice tempered with mercy," stressing that death penalty use be limited.

The guidelines say the death penalty should be "resolutely" handed down to those who have committed "extremely serious" crimes, but that the punishment should be reserved for the tiny minority of criminals against which there is valid and ample evidence.

The guidelines also say that capital punishment reprieves should be granted for as long as they are allowed by law.

The guidelines are an interpretation of the "justice tempered with mercy" policy and details on the judicial principles used when handling criminal cases, SPC spokesman Sun Jungong said.

The "justice tempered with mercy" policy was first enacted in a document approved in 2006 by the Sixth Plenary Session of the 16th Central Committee of the Communist Party of China (CPC).

The policy required courts to issue both severe and lenient sentences, depending on the seriousness of each crime.

According to the guidelines, crimes involving officials taking advantage of their position and mafia-style gangs should be handled "with severity."

Severity should also be applied to repeat offenders.

On the other hand, the document says minors and senior citizens who commit crimes should be punished with leniency.

Commutation and paroles for ex-officials who took advantage of their public position, especially those at county-level or above, are required to be heard at court.

Commutations for criminals convicted of major crimes like murder and robbery are to be strictly limited, the guidlines say.

Monday, 1 February 2010

Indonesia: Legal doubts delay executions

Indonesian Executions Stalled as Judicial-Review Question Languishes Unanswered
From The Jakarta Globe, 31 January, 2010
By Heru Andriyanto

The absence of executions in 2009 was the result not of an intentional moratorium but because the Supreme Court has failed to provide a specific timeframe within which death row inmates are allowed to request a judicial review, the Attorney General’s Office said.

The AGO last year proposed that the top court issue a ruling to limit the period, to prevent inmates from buying time. But Supreme Court Chief Justice Harifin Tumpa sent the request back to the AGO to let prosecutors decide, with a suggestion that the period be restricted to 180 days.

"There is no ruling from the Supreme Court that provides us legal standing to execute inmates who have yet to take a stance [on whether to ask for a judicial review] within a certain period," AGO spokesman Didiek Darmanto said.

Inmate Gunawan Santosa has exploited the weak point. The Supreme Court has upheld a death sentence for Gunawan for hiring Navy officers to kill his father-in-law. Gunawan has notified the AGO he would ask for a judicial review, but has continuously delayed doing so.

"Why should he hurry? There is no law that limits our time to ask for a judicial review so we take our time," said Alamsjah Hanafiah, Gunawan’s lawyer.

Under Indonesian law, after a Supreme Court has rejected an appeal, the death row inmate has two possible extraordinary measures to escape the death sentence — judicial review and presidential pardon.

Requesting a judicial review by the Supreme Court requires the inmate to provide new evidence supporting his innocence. Asking for a presidential pardon must be preceded by an admission to the crime.

Alamsjah said he would refer to the case of Hutomo "Tommy" Mandala Putra, who also hired someone to murder a Supreme Court judge but was sentenced to just 15 years in prison.

"Many death row inmates don’t use their rights to extraordinary legal options, but at the last minute might request presidential clemency or a judicial review," Didiek said.

"In addition, carrying out the death sentence costs us a huge amount of money," he said.

Last year’s execution hiatus was a sharp contrast to 2008, when the AGO ordered the execution of 10 inmates — a record in the post-Suharto era.

The flurry of executions started after a humiliating bribery scandal rocked the AGO in March 2008. Prosecutor Urip Tri Gunawan was arrested by the Corruption Eradication Commission (KPK).

International human rights group Amnesty International noted that the executions in 2008 totaled only one less than the 11 recorded in the "entire preceding decade."

Amnesty International strongly criticized Indonesia for voting against a United Nations General Assembly resolution calling for a worldwide moratorium on executions.

According to the AGO, the country has 107 inmates on death row. Including Gunawan, six have been declared ready to face the firing squad.

The five others include drug trafficker Meirika Franola and convicted murderers Bahar bin Matsar, Jurit bin Abdullah, Ibrahim bin Ujang and Suryadi Swabhuana.

The AGO also said six death-row inmates — Irwan Sadawa Hia, Taroni Hia, Dody Marshal, Jufry, alias Muh Dahri, Imran Sinaga and Rambe Hadipah Paulus Purba — had escaped from prison and were at large.

Although no inmate was put to death in 2009, the number of inmates on death row has fallen from 112 last year. Two condemned inmates, Banged Siahaan and Edith Yunita Sianturi, died of natural causes while in custody, and three other inmates had their death sentences commuted to life in prison by the Supreme Court following judicial reviews.

The three were Australian nationals Matthew Norman, Thanh Duc Tan Nguyen and Si Yi Chen, members of the so-called Bali Nine. They were arrested in April 2005 for attempting to smuggle heroin out of Bali.

"The death sentence is cruel and inhuman. It fails as a deterrent so we need to take a lesson from other countries who have abolished capital punishment but at the same time successfully reduced crime and corruption," said Usman Hamid, the chairman of the Commission for Missing Persons and Victims of Violence (Kontras), a human rights group.

Bangladesh: Coup executions condemned

Bangladesh: Transparency needed over hasty executions and safety of family members must be ensured
Amnesty International public statement
1 February 2010

Amnesty International condemns last week’s execution in Bangladesh of five men found guilty of killing the country’s founding leader, Sheikh Mujibur Rahman.

Six other men sentenced to death in their absence in the same case are living outside Bangladesh, and the government is seeking their extradition. The execution of these five men will make their extradition highly unlikely. There is a high risk that they, too, might be executed.

Family members of the convicts also live in fear of being attacked by political activists of the ruling Awami League party. According to a United News of Bangladesh (UNB) report, Awami League activists led by a local Awami League leader attacked the house of Aziz Pasha, one of 12 men sentenced to death for killing Sheikh Mujibur Rahman, in Tetra village in Harirampur Upazila in Manikganj on 31 January. Witnesses have told UNB reporters that the attackers looted the valuables and set the house on fire. Aziz Pasha who was sentenced in his absence reportedly died outside Bangladesh but his brother lives in his house. Amnesty International calls on the Government of Prime Minister Sheikh Hasina to establish an impartial and independent investigation into this attack. The government should publicly condemn any such attacks and bring anyone involved to justice.

The five who were executed on 28 January were found guilty of the murder by the Supreme Court on 27 January and according to media reports in Bangladesh they were executed shortly after midnight on 28 January 2010, less than twenty four hours after their conviction.

Amnesty International opposes the execution of these five men, which should never have taken place. The haste in which they were carried out raises serious questions about the timing and procedures for these executions. Amnesty International calls on the government of Bangladesh to ensure transparency about its handling of this case.

In Bangladesh it is standard practice for mercy petitions calling for the commutation of death sentences to be considered by the President after all judicial remedies have been exhausted.

However, the President dismissed the mercy petitions of three of the men, before the Supreme Court’s final review of their sentences.

The mercy petition of one of the condemned men was considered after the Supreme Court’s final decision was announced on 27 January, but it was dismissed within hours of it being sent to the President. Lawyers for the man say the speed with which a decision was given for a mercy petition is unprecedented in a death penalty case in the history of Bangladesh.

The fifth man did not submit a mercy petition to the President.

The Supreme Court upheld the death sentences against the five men on 27 January. No other judicial remedy was available to the five former army officers convicted of carrying out the killing. Their lawyers say the men’s execution so close to the final judicial review of their sentences is unprecedented in Bangladesh.

Sheikh Mujibur Rahman and most of his family members were killed when a group of military officers entered his house and opened fire on them in an attempted coup on August 15th

Acting President Kondaker Mushtaq Ahmed, who took office following the death of Sheik Mujobur Rahman as well as his successor, President Ziaur Rahman, had granted the accused officers immunity from prosecution. The immunity was lifted by Sheikh Hasina when she became Prime Minister in 1996.

The killing of Sheikh Mujibur Rahman and his family members were grave human rights abuses, and those who committed them should be brought to justice. However, bringing people to justice must not in itself violate the human rights of the accused.

Amnesty International opposes the death penalty in all cases regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.

The death penalty violates the right to life as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.

For Immediate Release
1 February 2010
AI Index: ASA 13/003/2010
Bangladesh: Transparency needed over hasty executions and safety of family members must be ensured