Thursday, 30 June 2016

Death penalty bills to come alive in new Philippine Senate

Source: Asia One (29 June 2016)

At least two Philippine senators will file bills on July 1 to reimpose the death penalty in keeping apparently with President-elect Rodrigo Duterte's wishes.

Reviving capital punishment will be among the first 10 measures to be filed by each of Sen. Vicente Sotto III and returning Sen. Panfilo Lacson ahead of the formal opening of the 17th Congress on July 25.

All incoming members of the Senate are in the process of readying the first 10 bills each will file come July 1.

Duterte recently said in Davao City that he viewed the death penalty-which was repealed during the Arroyo administration in 2006-as retribution for one's crimes against society. "When you kill, rape someone you should pay for it," he had said.

Lacson, however, said he saw the death penalty differently.

In a text message, Lacson said this was the first time he was filing a death penalty bill and it would cover "all heinous crimes" as defined in Republic Act No. 7659, or the Death Penalty Law that was repealed in 2006.

Lacson, a former chief of the Philippine National Police, said he saw capital punishment as a deterrent to crime while Duterte saw it as retribution.

Lacson said his bill would specify death by lethal injection and not by hanging, as Duterte had said he preferred but which Lacson found to be "medieval.""I believe the mere knowledge one's death is forthcoming is the ultimate punishment," Lacson said.

The nine other bills Lacson will file include the budget reform for village empowerment act, national ID reference system act, amendments to the antimoney laundering act and bank secrecy law, and the anti-wire tapping and SIM card registration acts.

Sotto said he would refile the death penalty bill he first submitted in 2014 which seeks to revive the old capital punishment law or RA 7659. His bill would also propose death by lethal injection.

Sotto's other bills have to do with addressing the drug problem, an antidrug penal institution act, the creation of a Presidential Anti-Drug Authority, creation of a dangerous drugs court, and providing for affordable drug rehabilitation treatment for PhilHealth beneficiaries.

Saturday, 25 June 2016

Singapore’s heartless death penalty for drug traffickers

Source: Online Citizen (11 June 2016)

By Arjun Malik

On the first of June, I watched the conclusion of a capital punishment heroin trafficking case in Singapore’s Supreme Court. I was left profoundly disturbed.

As Judge Choo Han Teck announced the sentences in court, the family members of the defendants erupted in pain. Mothers, fathers, sisters, brothers, cousins, sons, daughters – their bodies shuddered in agony and tears streaked down their pained faces. Their heartbreaking cries reverberated softly through the crowded courtroom. Two of the three co-defendants, Kalwant Singh and Norasharee Bin Gous, were sentenced to death by hanging. The third defendant’s life was spared for his “substantive assistance” to the authorities. He will be imprisoned for life instead.

Yet even in the presence of such acute intense human suffering, the courtroom proved to be the most unsympathetic of places. The judge, while allowing the families of the defendants to spend some time with their loved ones before they were taken to prison, declared that they could only meet for ten minutes because he had “another matter to attend to”. The public prosecutor instructed the guards to stop some family members from talking to the defendants, presumably because they were not part of the “immediate” family. Could the Singaporean justice system treat these defendants and their families with any more cruelty and indifference?

Even as controversy over capital punishment rages worldwide, support for the death penalty in Singapore remains remarkably strong. Though a legislative change in 2012 made the death penalty no longer mandatory for drug traffickers, prosecutors and judges continue to impose capital punishment for non-violent drug offenses. The dominant Singaporean narrative is that the death penalty has been an effective deterrent against drug crime, despite a complete absence of academic evidence backing up such a viewpoint. As Oxford University professors Roger Hood and Carolyn Hoyle explain, "It has been argued that the death penalty is an indisputable deterrent to drug trafficking, but no evidence of a statistical kind has been forthcoming to support this contention.” In fact, the death penalty is so accepted that it is often left out of mainstream public discourse. Not a single Singaporean media outlet covered this case or the resulting announcement of death sentences – a situation that would be unthinkable in other developed nations.

There is also a perception that Singapore has robust legal safeguards that prevent it from wrongfully convicting drug traffickers. Admittedly, Singapore enjoys strong rule of law. However, many might be surprised by the flimsiness of evidence that is accepted with such deadly punishments at stake. In this case, there is a serious question as to whether, Kalwant Singh, who acted as a drug courier, was actually aware that he was trafficking heroin. Singh has consistently claimed that he believed he was transporting “panparak” – a preparation of Indian betel leaf, areca nut and tobacco that is regularly consumed in Southeast Asia.

The only major piece of evidence that contradicts Singh’s account is testimony from a co-defendant, Mohamed Yazid. Very conveniently, Yazid was spared the death penalty for his testimony against Singh. Singaporean law allows drug trafficking defendants who provide “substantive assistance” to the authorities to escape the death penalty, providing a strong incentive to testify against others, even dishonestly.

By the Court’s own admission, “a person facing a capital drug offence may falsely implicate his co-accused so as to save himself from the gallows”. Despite this recognition, in his written opinion, the judge comes to the conclusion that “Yazid … had spoken the truth”, thereby convicting Singh and sentencing him to death.

We should never be comfortable executing people on the basis of such questionable evidence.

Moreover, the fact that the majority of people caught up in the drug trade worldwide come from impoverished backgrounds is too often overlooked. It emerged that one of the defendants in the case was earning a measly one hundred Malaysian Ringgit (about twenty-five US Dollars) for each “bundle” of drugs that he delivered. That means he was making a pitiful few hundred dollars every time he took the risk of losing his life. The word “drug trafficker” often evokes images of a wealthy drug kingpin profiting royally off the suffering of addicts. In reality, those executed are very rarely the kingpins who command the drug trade. Instead, like the defendants in this case, they are mostly poor, low-level drug couriers who may have little knowledge of what they are getting themselves into.

There should be little doubt that Singapore’s attitude towards the death penalty for drug traffickers is fraught with misperceptions and half-truths. With a better appreciation of the academic evidence on deterrence, uncertainty in the legal process and the impoverished background of most convicted drug traffickers, one would hope that Singaporeans might reconsider their position. Given the facts, it is hard to fathom how imposing the death penalty for non-violent drug crimes is consistent with basic ideals of fairness and proportionality.

After the verdict was delivered, the agonizing scene I encountered is one I will never forget. The distraught defendants and their families, separated almost entirely by glass, tried desperately to touch each other through a paper-thin slit in the wall. They barely managed to grasp each other’s fingers or meet their lips for a fleeting last kiss. Perhaps, it is only by witnessing the utter state of despair in the courtroom, that people can truly comprehend the gravity of the death penalty. Maybe, after watching a drug trafficking case unfold for themselves, they will leave just as disturbed as I was.

ADPAN urges Indonesia to Abolish Death Penalty and Castration for Sex Offenders

Source: Anti Death Penalty Asia Network (16 June 2016)

ADPAN(Anti Death Penalty Asia Network) is perturbed by Indonesia’s recent introduction of death penalty and chemical castration to sex offenders.

On 25/5/2016, President Joko Widodo signed a decree introducing the tougher punishments for child sex offenders, including the death penalty and chemical castration. The death penalty can now be handed down to child rapists where the victim has died or suffered serious mental or physical injury, while chemical castration can be used in cases of repeat child sex offenders. (AFP – AlJazeera, 26/5/2016)

This seems to be a knee-jerk reaction to the case of a 14-year-old girl who was snatched by a group of drunken men and boys on western Sumatra island in April and was found days later in woods, tied up and naked.

ADPAN believes that punishment need to be meted out to the guilty, but definitely not the death penalty.

Several studies have also warned against focusing solely on punitive action as the solution to sex offences, rather proposing parent-focused child sex abuse prevention (Mendelson & Letourneau. 2015), involving men and boys as allies against sexual violence (Walsh. 2015), mechanisms to identify persons who are attracted to pre-pubescent girls (Beier et al. 2016) and introducing school-based sexuality education at an early age, containing modules addressing inappropriate touching and rape culture. (Coleman et al. 2015) The death penalty will not prevent rapes.

If deterrence is Indonesia’s objective for the introduction of the death penalty, it must be pointed out that there is no credible evidence to suggest that the death penalty is a deterrent. The Death Penalty Information Center points to higher murder rates in states that have the death penalty as proof the sentencing threat does not deter crime.

There is also concern that when death penalty is imposed for crimes that do not usually result in death of victims, as would apply to sex offences, there is a real risk that the death penalty would encourage the offender to murder the victim to destroy the evidence against him/her.

Therefore, ADPAN urges Indonesia to reconsider and abolish the death penalty for sex offenders.

ADPAN also calls on Indonesia to abolish the new punishment of ‘chemical castration’ for sex offenders.

ADPAN further calls on Indonesia to abolish the Death Penalty, and impose an immediate moratorium on executions pending abolitions.

Charles Hector

For and on behalf of

ADPAN (Anti Death Penalty Asia Network)

Friday, 10 June 2016

ASEAN setback: Forward march on death penalty

Source: The Jakarta Post (10 June 2016)

Last Wednesday President Joko “Jokowi” Widodo announced a controversial regulation in lieu of law, citing the many recent reports involving the rape and murder of children. The controversy stems from the addition of heavier penalties for the aforementioned crimes which include, among others, a life sentence, chemical castration and even the death penalty in particular cases. The death penalty has been outlined for cases where the crime has led to severe damage or death, or if the perpetrators were family members and or guardians of the victims.

The regulation is criticized for lacking a comprehensive perspective regarding sexual violence targeting children and also for strengthening the death penalty regime.

This is a setback from the government’s commitment to human rights protection — compared to the moratorium on the death penalty in 2009-2013. The high number of executions carried out under the President Jokowi administration is inconsistent with a commitment made among ASEAN leaders to protect the right to life as stated in the ASEAN Charter on Human Rights, adopted in 2012.

This is a setback from the government’s commitment to human rights protection — compared to the moratorium on the death penalty in 2009-2013.(OHCHR/*)

Executions and leaders’ statements elsewhere also indicate questionable commitment from ASEAN countries in regard to moving forward with a death penalty moratorium in the region.

Singapore executed Kho Jabing, a Malaysian citizen, on May 20, hours after the highest court rejected his appeal for clemency. In April, Malaysia also executed its citizens, Gunasegar Pitchaymuthu, Ramesh and Sasivarnam Jayakumar for murder. Indonesia may proceed to the next round of executions with a list of 14 death row convicts, reportedly after Idul Fitri in early July.

In April this year, Indonesia was criticized again by rights groups for claiming pro-capital punishment countries as like-minded groups in the UN General Assembly meeting, responding to outcry from a number of European countries over the assembly document, which omitted the commitment to promote the abolition of the death penalty.

The silence of ASEAN governments on this issue, before and following the Kho Jabing execution — presumably rooted in ASEAN’s principle of non-interference — will continue to be the biggest challenge for the future of death penalty abolition in Southeast Asia.

Unfortunately Jabing belonged to a country that does not seem to care about losing a life of its citizen. Let us not forget what happened to Filipino convict Mary Jane Veloso, whose country’s leaders had actively lobbied the Indonesian government, although the possibility of preventing her from execution is very unlikely.

At least their attempts have succeeded to delay the execution, providing more time for possible steps toward clemency. Similarly, regarding Indonesian migrant workers facing the death penalty in Malaysia, our government has actively provided legal assistance as well as bilateral diplomacy to prevent its citizens from executions.

Therefore, it is ironic that our government is planning a third round of executions. Moreover, the plan of the newly elected president of the Philippines, Rodrigo Duterte, to revive the use of the death penalty, has a severe impact on the movement to abolish the death penalty in the region, as the country previously was among the few nations supporting its abolition.

The UN Office of the High Commissioner for Human Rights records that in Southeast Asia only three out of 11 UN members have abolished capital punishment — Timor Leste, Cambodia and the Philippines. Cambodia’s and Timor Leste’s commitment to eliminate capital punishment is part of their post-conflict reconstruction under the aegis of the UN. Meanwhile, the abolition found its momentum in the Philippines as part of the commitment to cut off the Ferdinand Marcos’ legacy, also sending a letter, reflecing active diplomatic roles in defending their migrant workers facing the death penalty abroad.

We still recall the migrant workers Sarah Balabagan and Flor Contemplacion sentenced to death for murder, cases that demonstrate the totality of the Philippines to defend its citizens from executions. This attempt has set the new benchmark and best practice for other ASEAN countries on how a country should protect its citizens facing the death penalty abroad.

Thus, Duterte’s plan to revive the death penalty in the Philippines is counterproductive, and would affect the government’s commitment to save the lives of its migrant workers abroad.

Meanwhile, Indonesia’s representative for the ASEAN Intergovernmental Commission on Human Rights ( AICHR ), Dinna Wisnu, called for the abolition of the death penalty in ASEAN.

A similar call has come from the Malaysian AICHR representative Muhammad S. Abdullah for his active role in defending Wilfrida Soik, an Indonesian migrant worker, from execution.

However, their efforts promoting the abolition of capital punishment must be supported by comprehensive measures so as to push ASEAN countries to move away from their conservatism and look at the opportunity to end the death penalty.

In 2012 the road map toward abolishing capital punishment recorded a brighter picture when a few ASEAN countries no longer rejected the moratorium of the death penalty as shown in the table above.

The stance for abstention has given new hope for ASEAN to be a region in which the right to life would finally be respected as a non-derogable right.

Thus Indonesia’s rights defenders continue to mobilize support and international solidarity to promote the abolition of the death penalty, including in the current penal code amendment discussed by lawmakers.

Activists in the Philippines will surely continue to fight Duterte’s plan to revive the death penalty. It is precisely in this alarming situation that the momentum is here to urge leaders of ASEAN countries to walk their talk in protecting human rights as enshrined in the ASEAN Charter, by developing a road map for the abolition of death penalty in the region.


Wahyu Susilo is a policy analyst for Migrant CARE, an NGO. Indriaswati Dyah Saptaningrum is a researcher for the Institute for Policy Research and Advocacy ( ELSAM ) and a PhD candidate at the University of New South Wales Law School in Sydney.

Thursday, 9 June 2016

Pakistan executions pass 400 despite international protests over re-introduction of the death penalty

Source: The Independent (8 June 2016)

The number of people executed in Pakistan since it resumed hangings just 18 months ago is feared to have passed 400.

The government has ignored international appeals to reinstate a moratorium on the death penalty, which was removed following a Taliban terror attack that saw 130 children massacred at a school in Peshawar in 2014.

Pakistan has since become one of the most prolific users of the death penalty in the world, executing 404 people so far according to research by Reprieve.

The human rights organisation warned that the figure could be higher as not all executions may be recorded.

Maya Foa, director of its death penalty team, said: “That Pakistan has gone from a non-executing state to executing over 400 people in little over 18 months is truly shocking.

“The Pakistani Government seems indifferent to the plight of the many prisoners who should not even be on death row – those arrested as children, or suffering from severe physical or mental illnesses.

“They need to put a halt to all executions until a full review of this chaotic capital punishment system can be carried out.”

More than 70 hangings have taken place this year, putting Pakistan among the top countries for the death penalty behind China, Iran and Saudi Arabia.

Among a number of controversial cases is that of Abdul Basit, a paralysed prisoner who remains on death row despite concerns that there is no way to execute him that would not carry a high risk of prolonged suffering.

He told his lawyers that during a previous attempt to hang him, the prison authorities had built a slope or ramp up to the gallows in order to take him to be hanged in his wheelchair.

As in Saudi Arabia, convicts who were arrested under the age of 18 are among those awaiting executions, in violation of international law.

Pakistan was among the human rights priority countries highlighted by the Foreign and Commonwealth Office (FCO) in a recent report, which said the British Government had been “pressing” ministers in Islamabad on a number of issues.

The 325 people executed in 2015 may have been the highest number in Pakistani history, the report said, while an estimated 8,000 people remain on death row.

The de facto moratorium on the death penalty was lifted first for terrorism in December 2014 and then the following March for all capital crimes, including rape, adultery and murder.

“There were serious concerns over Pakistan’s use of the death penalty, including fair trial issues and the execution of persons who were alleged to have been minors at the time of the offence,” the FCO said.

“At the highest level, the UK made clear to Pakistan its opposition to the death penalty. We urged Pakistan to reinstate the moratorium and comply with international commitments.”

Wednesday, 8 June 2016

Australia Must Breathe New Life Into The Fight Against The Death Penalty In Asia

Source: Huffington Post (20 May 2016)

The death penalty is making an alarming resurgence in Australia's neighbourhood as several Asian countries move forward with executions. Now is an opportune time for Australian officials to try to reverse this trend before it's unstoppable.

This week, Philippine president-elect Rodrigo Duterte vowed to reintroduce capital punishment. The Philippines abolished the death penalty in 2006.

Today, [May 20] Singaporean authorities were expected to execute a 31-year-old Malaysian, Kho Jabing, who received a mandatory death sentence in violation of international fair trial rights. Hours before his execution, he was granted a stay of execution following a last minute appeal.

On May 11, Bangladeshi officials hanged Motiur Rahman Nizami following a conviction in Bangladesh's International Crimes Tribunal for alleged war crimes. Human Rights Watch has pointed out numerous shortcomings in the tribunal's proceedings, raising serious fair trial concerns.

On May 8, the Afghan government hanged six Taliban prisoners as part of President Ashraf Ghani's efforts to respond to critics who have demanded that the government take a harder line against the Taliban.

Indonesia is currently preparing a round of executions of 15 individuals, including five Indonesians and 10 foreign nationals, who have been convicted of drug offences.

Human Rights Watch opposes the death penalty in all circumstances as an irreversible, degrading, and cruel punishment. International human rights law is clear: if used at all, the death penalty should be reserved only for the "most serious crimes." United Nations experts have stated that drug offences do not meet that criteria.

Last year, many Australians were appalled when two Australian men, Andrew Chan and Myuran Sukumaran, were among 14 prisoners executed by firing squad in Indonesia. The Australian government made representations at the highest levels but to no avail.

In the wake of this state-sanctioned barbarity, the Australian Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade launched an inquiry into Australia's Advocacy for the Abolition of the Death Penalty. This month, the committee released its report, "A world without the death penalty." The report makes 13 recommendations and acknowledges that Australia has traditionally been a strong advocate for the abolition of the death penalty.

However, the joint committee recognises that to be effective, Australia's advocacy against the death penalty needs to be "consistent and universal, and strongly encourages all members of parliament and officials of the Australia government to present a consistent, principled objection to capital punishment."

The report recommends that the Department of Foreign Affairs and Trade coordinate "the development a whole-of-government Strategy for the Abolition of the Death Penalty which has as its focus, countries of the Indo-Pacific and the United States of America." This is exactly in line with what Human Rights Watch and other civil society groups recommended to the committee.

Now that the report has been tabled, DFAT shouldn't wait to start implementing it. The lives of people on death row across the region hang in the balance. Australia should adopt and carry out the recommendations of the committee and urgently intervene with relevant countries to privately and publicly denounce past executions and oppose future ones.

As chair of the report's Human Rights Sub-Committee and Australia's Special Envoy for Human Rights, Philip Ruddock has made ending capital punishment a signature issue. He should make urgent representations to Afghanistan, Bangladesh, Indonesia, and Singapore to publicly condemn the executions.

Australia should work closely with the United Nations and other abolitionist countries to urge our neighbours to get rid of the death penalty once and for all.

The bias of death penalty against the economically vulnerable

Source: The Indian Express (24 May 2016)

“One of the more difficult tasks for me as President was to decide on the issue of confirming capital punishment awarded by courts,” former President APJ Abdul Kalam once wrote. “I thought I should get all these cases examined, to my surprise, almost all cases which were pending had a social and economic bias.”

Last week, the Death Penalty Research Project at National Law University, Delhi released a seminal report on the death penalty. For the first time, researchers tried to interview all prisoners under sentence of death and their families, to understand who gets the death penalty and how, and what it is like to live under sentence of death in India.

What they found, in interviews with hundreds of prisoners and their families over two and a half years, was a system plagued by fundamental flaws.Whose structural foundations “render the systematic erosion of basic protections inevitable”, and where the death penalty seemed to perpetuate a “systemic marginalization” against prisoners from vulnerable and marginalized backgrounds.

Media debates in India on the death penalty almost always erupt around an imminent execution, and focus on whether the punishment is morally justified. However most prisoners sentenced to death in India are not eventually executed. (Less than 5 per cent of those sentenced to death by trial courts during the study after higher courts ruled on their appeals.) Yet issues of how prisoners on death row are treated by the criminal justice system are almost never discussed.

The NLU report emphasizes that its findings do not necessarily suggest that there is any direct discrimination at work – which means that state authorities do not intentionally discriminate against poor or less-educated prisoners. But the disparate impacts that it identifies do raise an important question: is there a degree of indirect discrimination at work, which worsens the impact of the denial of fair trial rights for prisoners from disadvantaged backgrounds?

Indirect discrimination occurs when a seemingly neutral practice or rule impacts particular groups disproportionately, even if it is not intentionally directed at that group.

Almost 75 per cent of the prisoners interviewed were “economically vulnerable”, a category the report’s authors defined using occupation and landholding. There is no direct equivalent government statistic, but about 21 per cent of people in India live below the international poverty line of $1.90 a day, and 58 per cent on below $3.10 a day.

Over half the prisoners worked in the organized sector, their occupations reading like a directory of unstable jobs: auto driver, brick kiln labourer, street vendor, manual scavenger, domestic worker, construction worker.

About 19 per cent of those on death row had attended only primary school (including those who started but dropped out). The comparative national figure is about 32 per cent (2011 census). Many prisoners were disadvantaged on both counts; nine out of ten who had never gone to school were also economically vulnerable, for example.

Why is this important? A prisoner’s economic status and level of education directly affects their ability to effectively participate in the criminal justice system and claim their fair trial rights.

Take something as basic as the right to be present at one’s own trial -which is an integral part of the right to defend oneself.Only one in four prisoners interviewed said they had attended all their hearings. Some prisoners said the police would be taken to the court premises by the police and then confined to a court lock-up without being produced in the courtroom.

A prisoner named Muhafiz told researchers that he had only been present in court during the depositions of two witnesses, and had been kept in the lock-up for the rest of his trial. He had never been to school, and said that even his limited presence in court would have been more meaningful if he had been educated.

Even when prisoners were present in court, the report says, “the very architecture of several trial courts often prevents any real chance of the accused participating in their own trial.” Accused persons were usually allowed at the back of the courtroom while proceedings between the judge and lawyers took place in front, out of earshot.

Everyone charged with a crime has the right under international human rights law to an interpreter if they do not understand the language used in court, and to translated documents. But this requirement is rarely met. Over half of the prisoners interviewed said they did not understand the proceedings at all – either because of the court architecture or the language used (often English).

Abed, a prisoner who only understood simple English words, said he could not comprehend large parts of his trial, which lasted for over 12 years. He understood the trial court decision to sentence him to death only after his fellow inmates explained it to him. Another prisoner who knew English told researchers he could not understand the proceedings in his trial as they were conducted in a different state language. The trial court rejected his requests for a translator, and went on to sentence him to death.

Part of an accused’s right to a fair hearing is the right to challenge evidence produced against them. In India, trial courts can question the accused directly at any stage, and the Supreme Court has ruled that accused persons must be questioned separately about every material circumstance to be used against them, in a form they can understand.

The study found that these provisions were routinely violated. Over 60 per cent of the prisoners interviewed said they were only asked to give yes/no responses to a string of questions in their trials, with no meaningful opportunity to explain themselves. A prisoner named Hemrajsaid that the judge only asked him one question – whether he had committed the crime. When Hemraj tried to respond to the evidence put forward by the prosecution, the sessions judge didn’t let him speak, and told him that “the lawyer would handle all that.”

The lawyers typically don’t. Seven in ten prisoners said their lawyers did not discuss case details with them. Nearly 77 per cent said they never met their trial court lawyers outside court, and the interaction in court was perfunctory. (Many of the prisoners chose to hire private lawyers at the trial and High Court, despite their economic vulnerability, because of their fear that the underpaid legal aid lawyers would not be competent or interested.)

And on it goes. In higher courts, prisoners had even less information about their cases, often finding out about developments only through prison authorities or television and newspaper reports. As the report puts it, “There is widespread alienation…among prisoners sentenced to death with an intense sentiment of systemic injustice.”

It isn’t just death row prisoners who face these kinds of violations, of course. (And India isn’t the only country with these problems: Amnesty International has also documented how death row prisoners in countries such as Indonesia face similar flagrant fair trial rights violations.) But given the irreversible nature of the death penalty, it is particularly important that fair trial rights are scrupulously followed in these cases. International human rights bodies agree that every death sentence imposed at the end of an unfair trial violates the right to life. The only way to end this injustice, clearly, is to impose an immediate moratorium on the use of the death penalty, as a first step towards abolition.

On the issue of indirect discrimination, human rights treaty bodies such as the Committee on the Elimination of Racial Discrimination have said that it goes “beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect.”

Indirect discrimination isn’t always easy to prove, and can often only be demonstrated circumstantially. But reliable statistics can go some way in showing that it exists where policies and practices appear to be neutral. UN treaty bodies accept statistics as proof of discrimination, as do many European countries. Combined with the knowledge about the broader societal context prejudices, statistics can make out at least a prima facie case of discrimination.

Indian criminal justice authorities follow several practiceswhich hurt poor or otherwise marginalized prisoners much more than others.What needs investigation is whether these practices are just the offshoots of social and economic inequalities, or whether they have become a form of institutionalized indirect discrimination.

Just last year, the Law Commission concluded in a report on the death penalty, “The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.” The NLU study sets out in stark and dismal detail the evidence for these claims. The death penalty is a lethal lottery in India, and the dice are loaded against some.

(Names of prisoners changed)

Shailesh Rai is Senior Policy Advisor, Amnesty International India. Views expressed by the author are personal.

Former Indonesian president 'rejects' death penalty

Source: (1 June 2016)

The third president of Indonesia has publicly revealed he opposes the death penalty as the country prepares for a third round of executions of drug offenders.

In a sign of growing dissent over capital punishment within Indonesia, former president Bacharuddin Jusuf Habibie said he had arrived at the conclusion that no man had the right to take someone's life.

"It is God's prerogative right," the 79-year-old, who ruled Indonesia following the fall of Suharto, said at the launch of the book Politik Hukuman Mati di Indonesia (The politics of the death penalty in Indonesia) in Jakarta.

"So if you ask: 'Habibie, what is your comment on capital punishment?' The answer is that I reject it."

Another round of executions will take place after the Muslim fasting month of Ramadan in June, according to the Attorney-General's office.

The announcement followed weeks of febrile speculation that the end was imminent for up to 15 drug offenders on death row, as firing squads prepared on Indonesia's death island, Nusakambangan.

Last year, President Joko Widodo moved swiftly to execute 14 drug offenders – including Australians Myuran Sukumaran and Andrew Chan – citing a drug emergency.

The death penalty is widely supported in Indonesia, with media polls typically showing about 75 per cent approval.

Joko last week authorised judges to sentence child sex offenders to death following a national outcry over the gang rape of a 14-year-old girl in Sumatra.

But the anti death-penalty campaign is gaining momentum. Law and Human Rights Minister Yasonna Laoly and popular Jakarta governor Basuki Tjahaja Purnama, known better as Ahok, both oppose capital punishment.

Former Indonesian judge Professor Jimly Asshiddiqie told the book launch he regretted he had been unable to convince a fellow judge to abolish the death penalty in a landmark Constitutional Court case in 2007.

The case, brought by Sukumaran and Chan and others, claimed the death penalty was inconsistent with the guarantee of the right to life in the constitution.

Professor Asshiddiqie, who was chairman of the Constitutional Court at the time, said unfortunately the case came at a time when there was huge public anger about drugs in Indonesia.

He voted with the majority – six votes to three – to uphold the death penalty.

However he confessed to the book launch that he actually agreed with the dissenting judges who believed the death penalty was unconstitutional.

"Actually I will share with you the secret ... I was with them," he said.

Professor Asshiddiqie said the constitutional court, established in 2003 as part of reforms following the Suharto regime, was a new institution at the time.

"I didn't always agree with the court's ruling but I also rarely made dissenting opinions," he said.

"Because those who make dissenting opinions are the ones who will make it into newspaper headlines."

But Professor Asshiddiqie, who was a key player in the anti-death penalty lobby in Jakarta in the lead-up to the executions last year, said he regretted not being able to persuade a fourth judge the death penalty was unconstitutional.

"Because if in 2007 we managed to have five (judges support) the abolishment of capital punishment ... the history of capital punishment would surely have been changed."

Meanwhile the Indonesian government is scrambling to assist Indonesian migrant worker Rita Krisdianti, who has been sentenced to death in Malaysia for carrying four kilograms of methamphetamines.

The foreign ministry has appointed a team of lawyers to file an appeal.

Human rights lawyer Todung Mulya Lubis, who represented Chan and Sukumaran, said the Indonesia's inconsistency was obvious when it defended migrant workers on death row overseas but carried out executions at home.

Monday, 6 June 2016

Philippines : President-elect Duterte Urged Not To Bring Back Death Penalty

Source: Anti Death Penalty Asia Network (31 May 2016)


Rodrigo R. Duterte

President-Elect of the Republic of the Philippines

31 May 2016

Dear President-elect Duterte,

We are writing to you today to express our concern regarding your recent statements in support of reinstating the death penalty.

The International Commission of Jurists (ICJ) is a global organization of judges and lawyers. For the past 60 years, it has devoted itself to promoting the understanding and observance of the rule of law and the legal protection of human rights throughout the world.

The ICJ considers the imposition of the death penalty to be a violation of the right to life and the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Reinstating the death penalty would contravene international commitments that the Philippines has voluntarily entered into. It would also place the Philippines at odds with the repeated calls by the UN General Assembly for all states “to establish a moratorium on executions with a view to abolishing the death penalty” and for those States which have abolished the death penalty, “not to reintroduce it”.[1]

Scientific research has failed to establish any significant impact of the death penalty on the incidence of crime. On the other hand, research indicates that improving crime detection and investigation, increasing the effectiveness and efficiency of the justice system, and addressing underlying causes, is far more likely to reduce serious crime.

Obligations of the Philippines under international law

The Philippines is currently an example of global best practice on the abolition of the death penalty. It abolished the death penalty in 2006 and is the only ASEAN Member State that has ratified the 2nd Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

Under Article 1 of the 2nd Optional Protocol to the ICCPR, the Philippines is obliged not to execute any person within its jurisdiction.

The 2nd Optional Protocol to the ICCPR contains no provision on renunciation, and States may not unilaterally withdraw from their obligations under the Protocol.[2] The resumption of executions in the Philippines would therefore constitute a violation of international law and represent an alarming disregard for the international human rights system.

No evidence that death penalty deters crime

Your statements suggest that the intention to reinstate the death penalty is largely driven by the desire to reduce the occurrence of crime in the Philippines. We emphasize, however, that empirical evidence does not prove that the death penalty deters crime.

For instance, there is no proof that the death penalty deters crime at a greater rate than alternative forms of punishment,[3] and the overwhelming majority of criminologists believe that the death penalty does not provide an effective deterrent.[4]

Research also indicates that increasing the chances of actually being caught and punished can be effective in deterring criminal conduct.[5] Individuals are less likely to commit crimes when there is a high probability of actually being subjected to criminal sanctions.[6] Thus, heightened enforcement efforts that are highly visible send a clearer message to potential criminals.[7] Indeed, multiple studies demonstrate that an increased likelihood of punishment is directly associated with a decrease in crime.[8]

Based on the scientific research, then, reinstituting the death penalty in the Philippines is unproven and unlikely to have any real impact on the incidence of serious crime in the country. On the other hand, investing in improved detection and investigation techniques and capacity, and improving the effectiveness and efficiency of the justice system, is more likely to achieve real results in reducing crime.

We strongly urge that, in lieu of reinstating the death penalty, the Government of the Philippines should focus more on effective, evidence-based approaches to crime prevention. Policies and legislation that address the underlying social and economic causes of criminal activity are also vital to ensuring stability and the rule of law.

We note that there have already been initiatives in the past that, if given strong support and adequate resources, may be effective in deterring crime. For instance, the Philippine National Police has, in the past, established constructive law enforcement policies through initiatives such as the Community-Oriented Policing System, which emphasized comprehensive policing, data-driven solutions and community engagement.[9]

Reinstating capital punishment in the Philippines would constitute a huge setback not only for the promotion and protection of human rights in the country, but also for the Philippines internationally.

As mentioned above, the Philippines has in recent years shown how strong leadership and political will can be instrumental in abolishing the death penalty. The Philippines can today rightfully claim and be presented internationally and regionally as an example of global best practice in the abolition of the death penalty.

Needlessly reversing course and losing this leading role is unlikely to have any significant impact on reducing crime in the Philippines, but it will adversely affect the Philippines’ standing in the world.

We therefore hope that, under your presidency, the same strength of leadership can be applied in maintaining the current prohibition of the death penalty, and instead preventing crime in a manner that conforms to international human rights law and standards.

Very truly yours,

Sam Zarifi

Regional Director for Asia & the Pacific

International Commission of Jurists
For questions and clarifications, please contact Ms. Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, tel. no. +662 619 8477 or

[1] E.g. UN General Assembly Resolution 69/186 (18 December 2014), articles 5(f) and 6.

[2] United Nations High Commissioner for Human Rights, Human Rights, Civil and Political Rights: The Human Rights Committee, Fact Sheet No. 15 (Rev. 1), 10 (May 2005),

[3] See National Research Council, Deterrence and the Death Penalty 2-3 (D. S. Nagin & J. V. Pepper eds., 2012),

[4] Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates: The Views of Leading Criminologists’, 99 J. of L. and Criminology 489, 501(2009),

[5] Valerie Wright, The Sentencing Project, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment 1 (2010),

[6] Id. at 4.

[7] Id. at 3-5.

[8] Id. at 4.

[9] Miguel Coronel, The Philippine Strategy and Best Practice for Crime Prevention: Community-Oriented Policing System, in Strategies and Best Practices in Crime Prevention in Particular Relation to Urban Areas and Youth at Risk: Proceedings of the Workshop Held at the 11th UN Congress on Crime Prevention and Criminal Justice 80-85 (Margaret Shaw & Kathryn Travers eds., 2005),