What Judicial Responsibility Must Mean in the Age of the Death Penalty

Source: The Wire (29 August 2015)

http://thewire.in/2015/08/29/what-judicial-responsibility-must-mean-in-the-age-of-the-death-penalty-9501/

The phrase "judicial responsibility" means not just the responsibility to uphold the law; it means the overarching responsibility to do justice. In Glossip v. Gross—which came up before the United States Supreme Court recently— a group of prisoners on death row in Oklahoma contended that the method of execution now used by the state violated the Eighth Amendment (which bars 'cruel and unusual punishment') because it creates an unacceptable risk of severe pain. They lost. Five judges did not agree with them.

Speaking for the minority of four, Justices Sotomayor and Breyer wrote dissenting opinions. Breyer spoke of judicial responsibility after listing out the factors which argue against death penalty. They are the lack of reliability, arbitrary application of the sentence, delay, lack of penological purpose. You can find these in any country where the law provides for death penalty, not least in India.

Rather than trying to "patch up the death penalty's legal wounds one at a time," said Breyer, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."

We in India need to ask the same question.

Which is the right time to speak about the morality and correctness of death penalty? When a convict is facing the gallows and there are last minute reviews or pleas for pardon with the media going full blast about the bestiality of the crime and the victims praying for justice, the climate is surcharged. Not the right time. Once the convict is executed, there are human rights activists shouting that India has a black mark and others asking then what about the human rights of the deceased/s; the media is milking the moment to the last drop. Not the right time. When nothing is happening, no death row prisoner is waiting for the noose, the climate is calm, and no one is interested. Not the right time. So when do we engage the public with the question of whether a civilised society should take lives in the name of the people? That is what the state does, when it executes the death sentence.

"Choose life and then you and your descendants shall live" (Deuteronomy 30:19). Choose Life. This is the title of a book which records the dialogue between Daisaku Ikeda and Arnold Toynbee during the years 1972-1974 covering a wide range of issues including the death penalty. Ikeda says, "I feel that life, as an absolute entity worthy of the profoundest respect, must never be treated as a means of achieving anything other than life itself. The dignity of life is an end in itself." Toynbee responds "No human being has a moral right to deprive another human being of his life." Someone may ask what if that human being deprived other human beings of their lives, then what? Surely we are not in junior class shouting, "But he beat me first, Miss!" Yes, the convict took away lives and is guilty of murder. That is precisely why we are discussing the death penalty in the first place.

The death penalty is irreversible. The Innocence Project is a non-profit organization which demonstrates by DNA testing the "judicial errors" in death row cases. If an error is proved beyond doubt but the execution has been carried out, how does one compensate the 'victims' of judicial process? The executed cannot be resurrected. The executed cannot be reformed.

In 2000, the Madras High Court (Justice Sirpurkar and I) heard an appeal against the death penalty. A school-girl was raped and murdered by three persons. It was a sensational case. The trial court found it to be a case of the 'rarest of rare' and sentenced them to death. We commuted the sentence to life. I received several letters asking me if I was a woman, since the deceased was a victim of sexual violence. There was no platform from where I could say that we had not acquitted the accused, but we had commuted the sentence, for valid reasons regarding the circumstances of the accused. Sometime in 2014, I read a news item about a project in Tamil Nadu conducting courses for prisoners to rehabilitate and equip them with life skills. Among the life-term prisoners who had secured gold medals and state ranks was the first accused in the above case. This is not submitted as an argument against the death penalty, but as an argument for upholding the right to life. The state punishes not only as a deterrent, but to reform too.

There are many reports of studies in the US which indicate that the factors that circumstances that ought not to affect the imposition of the death penalty—such as race, gender or geography—often do. In India too, such extraneous factors affect the application of the death penalty. Count the number of persons who can afford the best legal counsel and have gone to the gallows and you will have your answer. Then is it judicially responsible to apply such a random game-changer when it comes to life and death?

The Coimbatore bomb blast is a classic case in which death penalty could have been awarded. Nineteen bombs exploded in the city on February 14, 1998, resulting in the deaths of 58 persons and injuries to 250 persons and huge loss to private and public properties. In all, 166 persons faced trial but the court did not sentence even one to death. Revisions were filed seeking enhancement of sentence. They were dismissed. The trial court had given very responsible reasons for not giving the death penalty though the public prosecutor had pleaded that this was a most fitting case for capital punishment. The court said that none of the accused was granted bail during the trial and this deprived them of securing the best legal counsel and collecting all the relevant materials to support their case. The long period in jail resulted in internal friction amongst the accused themselves which again was counter-productive to their conducting the case. The manner in which witnesses were examined and the cross-examination conducted had also caused prejudice. Only a few of the advocates who appeared for the accused had given their best to defend them. The accused had pleaded that the offence was a result of the sense of isolation they felt and the consequent loss of faith in the system. These circumstances weighed with the trial court. Each one of the reasons is an aspect of fair and equal access to justice—ensuring which is undeniably the responsibility of every judge. I was one of the judges who heard the appeals before the Madras High Court and hence my familiarity with the facts.

In the Naroda Patiya judgment, the trial court explained why the death penalty was not given. If there was a case which the court could have easily called the rarest of rare it was this. Yet the judge cited the rights of those on death row, the restricted use of the death penalty in a progressive society, and the fact that use of the death penalty undermines human dignity, to support her decision not to grant capital punishment.

Both cases—Coimbatore and Naroda Patiya— are scarred by the death of innocent victims. No one was awarded the death penalty and both the trial judges gave reasons for their decisions. But in similar cases, the death penalty has been awarded. This means there is an inconsistency in sentencing even in cases where numerous persons have been killed.

There are the victims who demand justice. It is allegedly to assuage their feelings that society insists on the death penalty. In a 1985 Stanford Law Review article, Lynne Henderson has written, "Common assumptions about crime victims—that they are all "outraged" and want revenge and tougher law enforcement—underlie much of the current victim's rights rhetoric. But in light of the existing psychological evidence, these assumptions fail to address the experience and real needs of past victims."

According to her study, the promise of an execution offered only a seemingly appealing mechanism to assign blame and to channel rage. Actually the crime victims felt that the endless repetition of their stories, the formal legal rules, and the years lost between appeals only served to increase stress and delay healing. Then is it only the "Roman crowd" which seeks a vicarious taste of blood?

In Justice: What is the Right Thing To Do?, Michael Sandel wonders if morality does not mean "something to do with the proper way for human beings to treat one another." Toynbee and Ikeda agree that human life as an entity deserves absolute respect. Sandel asks "Is morality a matter of counting lives and weighing costs and benefits, or are certain moral duties and human rights so fundamental that they rise above such calculations?" The Right to Life is not a subject-to right. It is fundamental because it is life which is fundamental.

In times of death penalty, I believe courts should close their ears to the ambient din. While hearing the case with all the patience at their command, courts must remember that the right to life rises above weighing costs and benefits, that as long as there is life, there is room for reform, that justice without delay provides better closure to victims than execution after decades, that every system is fallible and life is too precious to hang on to a fallible process. So it is better to be responsible and to Choose Life.

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.

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.

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: "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.

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.

South Korea: Human Rights Body Challenges Death Penalty

By Kang Shin-who
From The Korea Times, 4 August 2009

The National Human Rights Commission of Korea (NHRC) filed a petition with the Constitutional Court Tuesday to end capital punishment.

In the petition, the commission said the nation has no authority to deprive citizens of life, as life is the most fundamental right of human beings.

"Even in extreme situations, human life shouldn't be a tool or an object to realize state policy or promote public interest," it said.

"The death penalty is also against humanitarianism and we cannot rule out the possibility of misjudgments," it added.

Historically, human rights groups here and overseas have campaigned to abolish the death penalty.

Last September, the Gwangju High Court filed a petition with the Constitutional Court, claiming that the government should come up with a punishment between the death penalty and life sentencing.

The case is currently under review.

A fisherman was sentenced to the death penalty in his trial for killing four tourists and asked his appellate court judge to lodge the petition, claiming that capital punishment was unconstitutional.

Accepting his suggestion, the appellate trial will be suspended until the Constitutional Court reviews the petition.

According to the Ministry of Justice, Korea has 59 convicts on death row. Korea has been a de facto country free of capital punishment as no executions have been carried out here for the past 11 years.

Related stories:
South Korea: Murders spark debate on death penalty -- 28 February 2009
South Korea: Challenge to death penalty law -- 13 October 2008
South Korea: Renewed calls for abolition -- 12 October 2007
South Korea death penalty hearing -- 10 April 2006
South Korea: Kim Dae-jung's call for abolition -- 6 March 2006
South Korea – former president calls for abolition -- 27 February 2006

Indonesia: 'Firing squad not torture'

A constitutional challenge to Indonesia's method of execution has failed, with a court ruling the pain of execution by firing squad did not amount to torture.

Lawyers for the three men sentenced to death for the October 2002 Bali bombing argued death by shooting violated the constitution's ban on torture.

But the Constitutional Court yesterday rejected the application to have the executions carried out by another method.

"There is no method of execution without pain," presiding judge Mohammad Mahfud said, according to newsagency AAP.

"The feeling of pain suffered by those convicted of the death penalty is the logical consequence attached to the process of death," The Age reported he said.

Other methods of execution such as beheading, electrocution or lethal injection carried "the risk of inaccuracy in the execution which, in the end, will create pain", but this did not amount to torture under the constitution.

Executions can proceed
The attorney general's office claimed in August that the constitutional challenge was no impediment to the executions being carried out.

But yesterday's decision means the government can have the men shot without claims the legal process had not run its course.

A spokesman for the attorney general said last week the government would announce plans for the executions on Friday (24 October).

Torture claim
Amrozi bin Nurhasyim, Ali Ghufron (also known as Mukhlas) and Imam Samudra asked the court to rule the firing squad unconstitutional, instead requesting a method such as lethal injection or beheading, which they have claimed in the past was more "Islamic".

They argued a delay between the shots by a firing squad and their deaths would constitute torture.

Surgeon Jose Rizal told the constitutional court in September that aiming at the heart may not be accurate.

"An accurate shot causes instant death, but it if misses, it takes time to die," he said.

Catholic priest Charlie Burrows told the court he witnessed the execution of two Nigerian drug traffickers in June 2008, when the men took seven minutes to die after they were shot.

"They were moaning again and again for seven minutes," he told said in court. "I think it is cruel, the torture."

Defence lawyer Wirwan Adnan yesterday claimed the court's 76 page decision recommended the government consider other execution methods that could ensure a fast death.

Related stories:
Bali bombers: One week to live? - 13 October 2008
Uncertain when Islamist bombers will die -- 25 August 2008
Bali executions will inspire martyrs: expert -- 25 February 2008
Bali bombers may soon get their wish -- 10 November 2007
Bali: Execution closer for bombing leaders -- 09 October 2007
Bali bombers lodge appeals -- 08 December 2006
Execution delay for Bali bombers -- 21 August 2006
Bali bombers closer to execution -- 11 April 2006

South Korea: Challenge to death penalty law

A South Korean death row inmate has been given leave to make a constitutional challenge to the country's death penalty law.

The Gwangju High Court filed the appeal on 3 October on behalf of a 70 year-old who was convicted of murdering four tourists on board his boat, according to The Korea Times.

The newspaper reported that he asked the provincial court to file his petition claiming the death penalty is unconstitutional.

It said his appeal would be suspended until the Consititutional Court ruled on the application.

The validity of the current death penalty law was last confirmed in 1996.

The judge at his trial said: "At the time of the latest constitutional ruling on the death penalty in 1996, the Constitutional Court stated it was constitutional although it indicated the need to scrap the capital punishment on a long term basis."

Amnesty International said in December 2007 that South Korea was "in practice" an abolitionist country, after it had not executed anyone for ten years.

The last executions in South Korea were on 30 December 1997, when 18 men and 5 women were executed in prisons across the country.

Related stories:
South Korea: Death penalty for child murders? -- 09 April 2008
South Korea: 100 days for abolition -- 06 February 2008
South Korea: Renewed calls for abolition -- 12 October 2007
Call for South Korea to show 'leadership' -- 27 June 2006
South Korea death penalty hearing -- 10 April 2006
South Korea: Kim Dae-jung's call for abolition -- 06 March 2006
South Korea – former president calls for abolition -- 27 February 2006

Uncertain when Islamist bombers will die

Time is running out for the Indonesian government to execute three Islamist terrorists this week for the October 2002 Bali bombing.

Attorney-General Hendarman Supandji has reportedly said he wanted the men shot before the start of Ramadan, the Islamic month of fasting and forgiveness.

This year Ramadan is expected to begin at sunset on 31 August.

However it is not clear whether the attorney-general has signed the necessary orders, and whether there would be enough time for authorities to make the final preparations.

Indonesian media report the Bali police and prosecutors are working together to coordinate arrangements for the executions.

Death row prisoners in Indonesia are usually given 72 hours notice when a date is set.

Amrozi bin Nurhasyim, Ali Ghufron (also known as Mukhlas) and Imam Samudra were convicted of organising the bombing, in which 202 people died.

The men are being held in a prison on Nusakambangan Island, off the coast of Central Java.

In July 2008, two Bali prosecutors reportedly inspected a field on the island where the executions would be carried out.

If they are not executed this week, the government is expected to wait until after Ramadan, rather than risk a religious backlash.

The prisoners have said in the past that they welcomed their execution, although they would prefer to be beheaded, which they claimed was a more 'Islamic' form of execution.

Constitutional challenge underway
The three may be shot while the country's Constitutional Court is considering their challenge to the standard method of execution.

In mid-August, the court agreed to hear an application from the men's lawyers arguing execution by firing squad amounted to torture.

"The appellants have a constitutional right not to be tortured," the application said. They argued that a delay between the shots by a firing squad and their deaths would constitute torture.

The court asked them to expand on their submissions at the court's next hearing, set down for this week.

The bombers' lawyers also have sent a letter to the attorney-general requesting a delay until a Constitutional Court challenge is completed.

The application is widely seen as a further legal manoeuvre designed to delay the executions, but the government has said it would have no bearing on when the sentences were carried out.

"Preparations are continuing - we don't need to wait for a decision from the Constitutional Court. When we are ready, we will execute," a government spokesman said after the preliminary court hearing on 14 August.

Law and Human Rights Minister Andi Mattalatta said in early August that the constitutional challenge had no implication for the impending executions.

"Execution is one problem and the decision of the Constitutional Court is another," he said.

"There is no relationship."

'Foreign pressure' claim
The defence legal team also attempted to incite opposition to the executions by portraying the government as giving in to foreign pressure.

"The question now is why is the Attorney-General's office in a hurry to execute them?" lawyer Adnan Wirawan said.

"Are they under the pressure of the Australian community to execute the three bombers right away?"

'Security tightened'
The Antara newsagency has reported that security had been tightened around Nusakambangan Island in preparation for the executions.

According to the report, the head of Nusakambangan's Batu Correctional Institute, Sudijanto, issued a circular on 11 August prohibiting local fishermen from the waters around the island, citing security reasons.

Related stories:
Bali executions will inspire martyrs: expert -- 25 February 2008
Bali bombers may soon get their wish -- 10 November 2007
Bali: Execution closer for bombing leaders -- 09 October 2007
Bali bombers lodge appeals -- 08 December 2006
Execution delay for Bali bombers -- 21 August 2006
Bali bombers closer to execution -- 11 April 2006

India: "Abusive lottery must be abolished"

The most comprehensive study of India's death penalty system ever conducted has concluded that it is an abusive and inconsistent process, hanging people on the basis of shockingly inadequate evidence.

Describing the system as a "lethal lottery", at the launch of the report on 2 May 2008, the study's authors said "the only remedy is to abolish the death penalty [in India] completely".

The landmark 243-page report Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006 was published by Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry).

Researchers analysed Supreme Court judgements handed down in more than 700 death penalty cases over a 56 year period.

Woefully few, too many
A summary of the study findings said the work was necessary "because of a vital gap that affected those campaigning against the death penalty: the absence of a comprehensive analysis of facts relating to the practice of capital punishment".

"There exist woefully few researched studies on the subject," it said.

Amnesty International reported at least 140 people were sentenced to death in 2006 and 2007. The most recent official figures, from 31 December 2005, showed at least 273 people were on death row, a figure which would certainly have increased.

"The fate of these death row prisoners is ultimately a lottery," the study's authors said.

This research was "the first to examine the essential unfairness of the death penalty system in India by analysing evidence found in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in capital cases".

It found that the death penalty was not limited to "rarest of rare cases" as claimed by politicians and courts. But "on the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants".

Poor evidence, poor defence
The main failings identified in the report were:

1. errors in consideration of evidence -- most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted the main witness's memory constantly improved from his statement a few days after the incident to the trial three years later

2. inadequate legal representation -- concerns include "lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary"
anti-terrorist legislation -- concerns include "the broad definition of 'terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence"

3. arbitrariness in sentencing -- "in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily"

4. failure of the courts and state authorities to consistently apply the procedures supposed to limit the death penalty to the "rarest of rare" cases.

The report also condemned a range of failings in India's death penalty system, which were at odds with international standards on the use of the death penalty.

These included expansion in the scope of the death penalty, mandatory death sentences -- for example for drugs and firearms offences -- and a lack of safeguards to prevent execution of children and the mentally ill.

Doing without, for how long?
Amnesty International welcomed the "current hiatus" on executions in the past decade, and said this "illustrates that the people of India are willing to live without the death penalty".

The last execution in India was carried out in August 2004, when Dhananjoy Chatterjee was hanged for the 1990 rape and murder of a girl. He was the first person to be hanged in India for over six years, having spent more than 14 years in prison.

However this week the Times of India reported that on May 16 a Bettiah court issued a "black warrant" for the execution of Prajeet Kumar Singh.

The newspaper said authorities in Bhagalpur Central Jail were preparing for its first execution in 13 years, which by law must take place between 21 and 28 days from a warrant being issued.

It quoted prison superintendant Uma Kant Sharan as saying the gallows would have to be readied and a hangman recruited.

"A separate request will be made to manufacturers of the special noose rope in Buxar," he said.

Prajeet's family, however, has reportedly lodged a petition for mercy with the President.

Related stories:
India: The politics of hanging -- 16 January, 2007

No death penalty in draft Thai constitution

The assembly drafting Thailand's next constitution has removed any reference to the death penalty from its draft charter, according to a report in The Nation.

The Constitution Drafting Assembly (CDA) this week removed the expression "death penalty", which The Nation said paved the way for "a possible future campaign to eventually end capital punishment in Thailand".

If the death penalty was provided for in the constitution, a campaign for abolition would have to counter the argument that the punishment was allowed -- or protected -- by the country's highest law.

If references are left out of the final constitution, future campaigns against the death penalty will not face this significant impediment.

"It's good that the capital punishment issue has been adjusted [to remove it from the charter] as it reflects the thinking of a society that doesn't resort to violence," said Kannika Bantherngjit, a member of the CDA.

"We should no longer resort to an eye for an eye and should look at the real cause of crime. Strong punishment is not right. It leads to society solving problems by force."

The country's previous constitution was overturned by the military junta that seized power in September 2006.