Down with the death penalty

Source: The Kathmandu Post (4 May 2018)

http://kathmandupost.ekantipur.com/news/2018-05-04/down-with-the-death-penalty.html

On April 21, 2018, India’s cabinet passed the Criminal Law (Amendment) Ordinance, 2018. One of the main amendments proposed in the ordinance was the insertion of a new provision, Section 376AB, in the Indian Penal Code which prescribes a death penalty to offenders convicted of raping a minor under the age of 12. Many have welcomed the government’s decision to exercise stringent punishment. This decision was primarily in response to widespread public outrage against the increasing incidents of rape, among others.

In Nepal too, in the wake of an increase in the reported incidents of rape, members of the public, activists and law makers have been putting forth similar demands to enact laws that allow for capital punishment against perpetrators of rape. Recently, in a State Assembly meeting of Province 3 that was held in Hetauda, members of the assembly demanded that death sentences be levelled against those guilty of rape. This is a clear indication of the public support for capital punishment when it comes to heinous crimes such as rape. According to popular opinion, if perpetrators are given a death sentence, then justice will be served and the occurrence of heinous crimes will decrease.

A pertinent question here is whether or not prescribing a death penalty to the perpetrators of such heinous crimes acts as deterrence, thus resulting in crime reduction. Is death penalty really the solution to combat such crimes?

The practice of capital punishment is guided by the retributive principle of “an eye for an eye and a tooth for a tooth.” An analysis by the United Nations Commission on Human Rights concluded that “capital punishment does not deter crime to a greater extent in comparison to the threat and application of the supposedly lesser punishment of life imprisonment.” As Amnesty International puts it, “the death penalty violates the most fundamental human right—the right to life. It is the ultimate cruel, inhuman and degrading punishment carried out in the name of justice.” It has to be understood that the death penalty, irrespective of the nature of the crime, characteristics of the offender, or the method used to prosecute, is a cruel and inhumane act.

Where do we stand?

In Nepal, following legal reforms in 1946, the death penalty was partially abolished for ordinary crimes. It was reinstated in 1985 for the offences of homicide and terrorism. The death penalty was completely abolished in Nepal only after the constitutional provision of 1990. In South Asia, Nepal, Bhutan and Sri Lanka have abolished capital punishment; while, India, Bangladesh, Pakistan, Afghanistan and Maldives have continued the practice.

The prevailing Constitution of Nepal (2015) under article 16 has guaranteed that all citizens have the right to live with dignity and has also prohibited any law to be made that prescribes the death penalty. This is a fundamental right. As per article 1 of the constitution, the constitution is the fundamental law and any law that is inconsistent with the constitution shall be void. It, therefore, is explicit that no law can be made in Nepal that prescribes the death penalty. Even if such a law is made, it shall be void on grounds of inconsistency with the constitutional provision. Apart from these, Nepal is a signatory to Second Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) which mandates abolition of the death penalty.

The newly enacted Penal Offence (Punishment Determination and Implementation) Act, 2074 which is due to be implemented from August 17, 2018 has incorporated various new penal provisions such as community service, suspended sentence, reform homes, rehabilitation centres, open prisons, parole, probation, etc. Section 13 of the act has clearly prescribed that the purpose of punishment should be to deter the offender, rehabilitate the offender, create a sense of remorse in the offender, etc. This clearly suggests that the penal policy adopted by the criminal justice system of Nepal is of a reformative approach.

Apart from this, in a bid to introduce stringent laws, the new National Penal (Code) Act, 2074 has introduced a new provision regarding life time imprisonment. As per the prevailing Muluki Ain, 2020, lifetime imprisonment would entail 20 years in prison. But the new law has prescribed two kinds of life time imprisonment: imprisonment for the remainder of that person’s life in cases of heinous crimes, and imprisonment for a period of 25 years.

Way forward

As per a report by Amnesty International, 105 countries around the world had abolished the death penalty for all crimes as of September 2017. With many countries adopting an abolitionist approach to the death penalty, it is time to re-examine our stance. Nepal was among the earliest countries in South Asia to abolish the death penalty, which is remarkable. The prevailing constitution has explicitly prohibited making laws that prescribe the death penalty. The new laws on sentencing policy are guided by a reformative approach. In this purview, it is futile to put forth demands to reintroduce the death penalty for heinous crimes. It would be a regressive step for the criminal justice system of Nepal.

It has to be understood that the death penalty is never the answer. Seeking justice through revenge can never serve as justice in the realest sense. Injustice to one cannot bring justice to another. There is no credible evidence to suggest that death penalties deter crimes more effectively than other punishments. Rather than opting for inhumane punishment such as the death penalty, more focus must be given to proper implementation of existing laws, strengthening the investigation and prosecution process, and providing speedy justice. While it is important that all perpetrators of heinous crimes be brought to justice and given punishments that match the gravity of the offence, the death penalty should never be levelled against anyone.

Magar is a section officer at the High Court Tulsipur, Butwal Bench

Drug trafficking: Death penalty no longer mandatory; but give judges full discretionary powers

Source: Aliran (3 May 2018)

https://aliran.com/civil-society-voices/drug-trafficking-death-penalty-no-longer-mandatory-but-give-judges-full-discretionary-powers/

Malaysians Against Death Penalty and Torture (Madpet) is pleased that the Dangerous Drugs Amendment Act 2017, which received royal assent on 27 December 2017, has finally, after much delay, come into force on 15 March 2018.

The 8 March gazette notification appointing the date of coming into operation of this new law – which will abolish the mandatory death penalty for drug trafficking, giving judge’s discretion to be able to sentence those convicted of drug trafficking to an alternate sentence of life imprisonment with not less than 15 strokes of the whip – was signed by the minister of health. It was odd that it was not the Minister in the Prime Minister’s Department, Azalina Othman, the de facto law minister or the home minister.

It must be pointed out that this still unexplained delay has resulted in grave injustice to at least 10 individuals who had been sentenced to the mandatory death penalty this year until 15 March 3018, because judges still had no discretion to consider and impose any other sentence other than death penalty until the date the Act came into operation. (It must be noted that not all those convicted and sentenced to death for drug trafficking would have been reported by the media.)

This 10 media-reported cases include give Malaysians and five foreign nationals, being:

S Pragasam, 30 – Ipoh High Court (Malay Mail, 9 February 2018)

Ong Cheng Yaw, 33, and San Kim Huat, 38 – Kuala Lumpur High Court (The Malaysian Insight, 8 February 2018)

Jonas Chihurumnanya (Nigerian) – Kuching High Court (The Borneo Post, 30 January 2018)

S Gopi Kumar, 33 – KL High Court (The Sun Daily, 24 January 2018)

A Sargunan, 42, and four Indian nationals, namely Sumesh Sudhakaran, 30, Alex Aby Jacob Alexander, 37, Renjith Raveendran, 28, and Sajith Sadanandan, 29 – Shah Alam High Court (The Sun Daily, 22 January 2018)

This new law, when it came into force, will only benefit those who had not yet been convicted by the High Court. If already convicted and sentenced to death before the law came into force, then even the appellate courts will not have the power to review the death sentence, and impose an alternative sentence for drug trafficking.

The only way that those already sentenced to death can escape the death penalty is if the appellate courts set aside the conviction for drug trafficking.

Even after the amending Act came into force, there are still serious flaws, including limitation on the factors that judges could consider when imposing the appropriate just sentence after conviction. The law now states, that judges “may have regard only to the following circumstances” being a limited list of four matters.

In criminal trials generally, judge will consider all relevant factors and circumstances of the case and/or the relevant convicted persons, including also age and whether he or she is a first time offender, before imposing a just and appropriate sentence.

At present, there is also mandatory requirement “that the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia” before a judge can impose a sentence other than death.

This is unjust for it affects an individual’s right to a fair trial, for an innocent person, when convicted at the High Court, may be forced to incriminate himself truthfully and/or falsely simply to avoid the death penalty. This ‘admission’ will also affect his or her right of appeal against conviction and sentence to the appellate courts, be it the Court of Appeal and/or the Federal Court.

The new amendments also failed to deal with the 800-plus persons currently on death row for drug trafficking, including also others who had already been convicted before the amending Act came into force.

Madpet calls for a immediate amendment of the law to ensure full, unfettered discretion be given to judges when it comes to sentencing those convicted of drug trafficking. We also urge that judge’s discretion when it comes to the imposition of imprisonment not to be simply limited to life imprisonment, but to be extended possibly by setting a more just and reasonable minimum sentence of not more than five to 10 years especially for first-time offenders;

Madpet also calls for the abolition of the mandatory death penalty for the about 11 remaining offences in Malaysia, and for the total abolition of the death penalty; and

MADPET also reiterates the call for a moratorium on executions pending abolition of the death penalty in Malaysia.