HRW: Abolish the Death Penalty in Pakistan

I/II.
http://hrw.org/ english/docs/ 2008/06/16/ pakist19141. htm

HUMAN RIGHTS WATCH
Letter to Pakistan's Prime Minister to Abolish the Death Penalty
June 17, 2008

Yusuf Raza Gillani
Prime Minister
Islamabad
Pakistan

Re: Death Penalty

Dear Prime Minister Gillani,Human Rights Watch is a nongovernmental organization that monitors human rights in more than 70 countries around the world. We appreciate the policy goals you have announced to address many of the human rights problems your government inherited after more than eight years of military rule. We welcome the goals related to lifting media restrictions, freeing detained lawyers and judges, and releasing political prisoners.

We also appreciate the steps that your government has taken to embed international human rights standards into Pakistani law by ratifying the International Covenant on Economic, Social and Cultural Rights and signing the International Covenant on Civil and Political Rights, as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Another subject requiring your attention is the death penalty. Human Rights Watch is opposed to the death penalty in all circumstances because it is a punishment of an inherently cruel, inhuman and final nature. Wherever it is in force, the death penalty is plagued by arbitrariness, unfairness, and racial, class or other bias, highlighting the necessity of its abolition.

Charges carrying the death penalty have significantly increased in recent years in Pakistan, resulting in a much higher number of death sentences and executions. Pakistan has over 95,000 people in custody for criminal offenses, of which approximately 67 percent (about 63,600) are pre-trial detainees. Out of the more than 31,400 convicts, nearly a quarter№┐йover 7,000 individuals, including almost 40 women№┐йhave been sentenced to death, and are either involved in lengthy appeals processes or awaiting execution after all appeals have been exhausted.

The number of persons sentenced to death in Pakistan and executed every year is among the highest in the world, with a sharp increase in executions in recent years:

* In 2004, 394 prisoners were sentenced to death and 15 were hanged.

* In 2005, 477 people were sentenced to death and 52 were hanged.

* In 2006, 446 people were sentenced to death and 82 people were
hanged, including one juvenile offender.

* In 2007, 309 prisoners were sentenced to death and 134 were hanged.

Most of those sentenced to death are poor and illiterate. Some face discrimination as members of religious minority communities. Many were held without due process of law and faced trials that did not meet international fair trial standards.

As you know, torture is endemic in Pakistan. This is due in part to the absence of a scientific, systematic and up-to-date system for investigation. For example, forensic facilities, including inadequate training, equipment and laboratories are poor. In the absence of proper forensic tools, police more often than not obtain №┐йevidence№┐й based on confessions and witness testimonies through various kinds of torture, mistreatment, and intimidation. Although there are many cases of detainees being severely injured and even dying in police custody, the courts rarely dismiss cases where there are credible allegations or evidence of torture, and few police officers are ever prosecuted, let alone convicted, for torture or illegal detention. Given the brutality of methods used№┐йincluding beatings, sleep-deprivation, upside-down hangings, rape and electro-shock№┐йit is not surprising that detainees often confess to crimes they did not commit.

Torture can lead to wrongful convictions and the execution of innocent people. Lawyers and human rights activists believe that there are many cases where the person executed was innocent.

Human Rights Watch is also concerned by the use of the death penalty by special courts like the anti-terrorism, narcotics and military courts, all of which fail to deliver fair trials, not least because these courts are not independent of the executive. Appointments to the special courts are meant to be made in consultation with the High Courts, but this requirement is often ignored.

Due process of law is also violated when the prisoner is denied an adequate opportunity to present a defense. Of special concern in death penalty cases is the right to counsel. Individuals sentenced to death are disproportionately poor and unable to afford competent counsel. Poor people lack access to competent counsel at both the trial and appellate stages. According to one study on condemned prisoners conducted in 2002, 71 percent of condemned prisoners in the North West Frontier Province were uneducated and over half (51 percent) had a monthly income below Rs 4,000 (US$50). The average fee for an appeal to the High Court in murder cases is around Rs 60,000 (about US$900). This creates an unequal system of justice, in which those with financial or political resources are able to obtain better legal services and avoid the death penalty.

State-funded legal counsel in death penalty cases in Pakistan is wholly inadequate. In cases where the possible punishment is death or imprisonment for life and the defendant is unrepresented, or declares him or herself financially unable to afford counsel, the court is obliged to engage a lawyer at state expense. Lawyers who voluntarily place their names on a list maintained for this purpose are paid a paltry Rs 200 per hearing (less than US$5). It is therefore not surprising that the Pauper Counsel list is mainly composed of either young and inexperienced lawyers or those without briefs№┐йlawyers who should not be representing persons in death penalty cases. Pakistani law provides no redress or remedy on the grounds of incompetent or ineffective legal representation. In many death penalty cases it appears that the absence of effective counsel is the difference between whether the death penalty is confirmed or set aside. Thus, many end up receiving the
death penalty, not for the worst crime, as international law requires, but for the worst lawyer.

A recent case that resulted in an execution highlighted several problems, including lack of access to counsel, torture in custody, and possible religious bias. In 2003, an illiterate army janitor named Zahid Masih was arrested along with three others for allegedly molesting and murdering the child of an army officer. Masih№┐йs family was not told of his whereabouts for more than two years, until after he was convicted without counsel on March 10, 2006 by a military court. The court sentenced Masih, a Christian, to death while acquitting the other three accused (who were all Muslim). Masih was allegedly tortured for 28 days and made a series of confessions. He also maintained that some army officers and their orderlies had convinced him that he would be absolved of charges if he confessed. On March 12, 2008, Masih was hanged in Peshawar Central Prison.

Pakistan currently has 26 criminal offenses that allow for the death penalty№┐йas opposed to just two, for murder and treason, at the time of independence in 1947. Several of these laws were enacted as a specific response to specific law and order situations, for example, when kidnapping for ransom was on the rise or when some particularly heinous cases of violence against women had been reported. Criminal offenses carrying the death penalty include murder, armed robbery, treason, mutiny, railway sabotage, giving false evidence that causes an innocent person to be executed, kidnapping, gang rape, stripping a woman of her clothes in public, child smuggling, hijacking, arms trading, drug smuggling and trafficking, extortion, terrorism, blasphemy and illegal sexual intercourse (including between partners not married to each other). This list includes many crimes that cannot be justified as a №┐йmost serious crime№┐й as required for the death penalty under
the International Covenant on Civil and Political Rights. Until the death penalty is banned in Pakistan, there is an urgent need for a review to remove the death penalty as a sentence for many of these crimes.

Consistent with international trends, Human Rights Watch urges Pakistan to abolish the death penalty in all circumstances. We recognise that there will be resistance to this move, particularly in cases of murder and other violent crimes. Steps will need to be taken to assure victims and families of victims of such crimes that they, too, are receiving justice, and that there are other ways to achieve justice.

We realize abolition of the death penalty will take time. Until the death penalty is abolished by an act of Parliament, we urge you to announce an immediate moratorium while your government establishes a commission to review the application of the death penalty, the many offenses for which it can be applied, and implement reforms to ensure that international fair trial standards are met. There is precedent for this: when Benazir Bhutto was elected prime minister in 1988, one of her first acts was to commute all death sentences to life imprisonment.

On December 18, 2007, the UN General Assembly passed a resolution by a wide margin calling for a worldwide moratorium on executions. When the General Assembly reopens discussion on this issue in September of this year, we hope that Pakistan will have already either abolished the death penalty or joined in this moratorium. Until that time, Human Rights Watch requests that at a minimum you ensure that the following key issues are addressed before any death sentence is handed down or carried out. These include:

* Ensure that defendants in death penalty cases have prompt access to competent counsel.

* Ensure that torture and other ill-treatment is not used to obtain confessions or evidence, and that any confessions or evidence so obtained are excluded from trial.

* Ensure that all fair trial rights provided under Pakistan and international law are met.

* Limit the offenses under which the death penalty can be awarded to only №┐йthe most serious crimes.№┐й

* Review the laws and witness requirements for crimes in which the death penalty is applicable to ensure compliance with international due process standards.

* Ensure that Pakistani federal law with a bearing on death penalty issues, such as the Juvenile Justice System Ordinance, is applied to the Provincially Administered Tribal Areas and the Federally Administered Tribal Areas.

Thank you in advance for your consideration, and we look forward to an open discussion with you and members of your government on this matter and others of mutual concern.

Yours sincerely,


Brad Adams
II.
http://www.flonnet. com/stories/ 2008070425130810 0.htm


Deadly gamble
V. VENKATESAN
A report studies Supreme Court judgments in death penalty cases in India from 1950 to 2006 and uncovers many inconsistencies.

THERE is very little officially compiled information on the award of capital punishment in India. This makes the task of understanding the relationship between the punishment and the incidence of crime for which death could be awarded as punishment challenging. Add to this the phenomenon of conflicting judgments coming from trial and high courts and from the Supreme Court itself on the nature of the crimes that can attract this penalty, and the challenge facing the researcher is likely to be insurmountable.
A recent study, jointly produced by Amnesty International India and the PeopleРђЎs Union for Civil Liberties Tamil Nadu & Puducherry, fills the void and exposes the inconsistencies in these judgments. The report was researched and written by Bikram Jeet Batra, consultant to Amnesty International India. Part I, written by Dr. V. Suresh and D. Nagasaila of the PUCL-TN&P, sets the tone for the entire report with its focus on the need to re-examine the death penalty in India.
Part II of the report cites Prison Statistics India 2005, compiled by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, and states that there are 273 persons sentenced to death, as on December 31, 2005. But it does not clarify whether the figure refers to those whose sentences were passed by a trial court or those whose sentences were upheld by a High Court or the Supreme Court or whose mercy petitions were pending or had been rejected. In November 2006, Minister for Home Affairs Shivraj Patil told Parliament that there were 44 mercy petitions before the President, some of which had been pending from 1998 and 1999.
The NCRB states that there were 25 executions between 1995 and 2004. Twenty-four of these took place between 1995 and 1998, pointing to the fact that executions have decreased in the past decade. The NCRB has admittedly no data relating to the death penalty before 1995. The report cites a newspaper article (which itself refers to the 1967 Law Commission report) that suggests that at least 1,422 people were executed between 1954 and 1963 alone. The report notes that the Supreme Court admitted in judgments upholding the constitutionality of the death penalty that there had been no systematic study on whether this penalty was a greater deterrent to murder than the penalty of life imprisonment.
The research for this report involved the study of over 700 judgments reported in law journals between 1950 and 2006. In the first phase ending in 1975, the study found that Supreme Court judgments relied on a rather abstract phrase РђЊ Рђюends of justiceРђЮ РђЊ to disguise the arbitrariness in the use of judicial discretion in sentencing. Thus, judgments regularly concluded with the mere assertion that the death sentence was being commuted or confirmed Рђюto meet the ends of justiceРђЮ. The study found that there were no clear, systematic principles governing sentencing.
In 1973, Parliament amended the Criminal Procedure Code (CrPC) to require judges to take note of Рђюspecial reasonsРђЮ when awarding the death sentence. The amended CrPC also required a mandatory pre-sentencing hearing in the trial court. It was, as the Supreme Court noted later, a Рђюgradual swing against the imposition of such penaltyРђЮ. The report found support to the thesis, advanced by a scholar (A. R. Blackshield) in an earlier study, that a key factor in determining a question of life or death was which judge heard the appeal. The report noted that all those convicts whose appeals were heard by a bench featuring Justice V.R. Krishna Iyer (who personally believes in the abolition of the death penalty) were more likely to receive a sympathetic hearing and even a suggestion of a presidential pardon, if not a commuted sentence. The amended CrPC could do little to limit this arbitrariness even though it perhaps ensured that the overall number of
persons sentenced to death was reduced, the report observes.
Rarest of rare cases
The judgment of the Supreme CourtРђЎs Constitution Bench in Bachan Singh v. State of Punjab (1980), which limited the death sentence to the rarest of rare cases, reinforced the exceptional nature of the death penalty. This is what Parliament had secured by amending the CrPC. The requirement that the judge concerned weigh aggravating and mitigating factors added a new element to the sentencing process. A major innovation was the specific reference in the mitigating factors to the fact that the state had to establish РђЊ with evidence РђЊ that the accused was likely to commit a crime again and could not be reformed, before the death sentence could be awarded.
But as the report points out, this requirement was sometimes observed in the breach in cases where the Supreme Court confirmed the death penalty. The reason for this was the courtРђЎs flawed understanding that the non-fulfilment of this requirement alone could not undo all the aggravating factors such as the gravity and brutality of the crime. According to the report, the Bachan Singh formulation saved many from the gallows in the early 1980s, with the Supreme Court commuting sentences. In the mid-1980s and thereafter, however, the impact of the judgment and its guidelines was less impressive, says the report.
In Machhi Singh and others v. State of Punjab (1983), the Supreme Court expanded the Рђюrarest of rareРђЮ formulation beyond the aggravating factors listed in Bachan Singh to cases where the Рђюcollective conscienceРђЮ of a community may be shocked. But the bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances. In the post-Machhi Singh period, considerable inconsistency marked the Supreme CourtРђЎs judgments in death penalty cases. Thus, the court considered the age of the accused as a mitigating factor in some cases but not in others. Again, it found the gruesome nature of the crime sufficient to ignore the mitigating factors in a few cases but not in every case.
In an unusually candid judgment delivered on December 12, 2006, in Aloke Nath Dutta and ors. v. State of West Bengal, Justices S.B. Sinha and Dalveer Bhandari admitted the courtРђЎs failure to evolve a sentencing policy. They suggested that different criteria had been adopted by different benches of the Supreme Court for similar offences. The bench commuted the sentence in this case, asking the question: РђюNo sentencing policy in clear-cut terms has been evolved by the Supreme Court. What should we do?РђЮ The report concludes: РђюDespite legislative reform and reform-minded jurisprudence over a number of years, the death penalty has continued to be a lethal lottery.РђЮ
The report, for instance, found that the Supreme Court had not upheld the death sentence in any dowry murder case brought before it. Although the court gave a variety of reasons for each commutation in such cases, the message is indeed disturbing even though the report has refrained as such from drawing any conclusions. Again, it is striking that the court has not upheld a death sentence in any case of rape and murder of an adult woman, while it has done so in a number of cases where the victim was a child.
However, the report noted that between 1999 and 2006, all rape and murder cases involving minors that came before the Supreme Court resulted in commutations. In one case (Akhtar v. State of Uttar Pradesh, 1999), Justices G.B. Pattanaik and Rajendra Babu commuted the sentence of death, finding that the death was unintentional and without premeditation as the victim died because she had been gagged while the rape was being committed. A similar approach was followed in Amrit Singh v. State of Punjab (2006), wherein the court held that the death occurred as a consequence of the rape and commuted the sentence. The judges reasoned that rape might be brutal, but it could have been a lapse on the appellantРђЎs part on seeing a lonely girl at a secluded place, and therefore, it could not be said to be a rarest of rare case. Such reasoning not only smacks of gender insensitivity but strengthens the argument in favour of a clear sentencing policy.
It is deplorable how the court viewed the killings committed by a mob as a mitigating rather than an aggravating factor. In Kishori v. State of Delhi (1999), the court noted that the acts attributed to the mob of which the appellant was a member could not be stated to be the result of any organised, systematic activity leading to genocide, and commuted his sentence. In Manohar Lal alias Manu and anr. v. State (NCT) of Delhi (2000), the court, ignoring evidence that the attacks on Sikhs had been orchestrated, held that while the killings were most gruesome, the accused were berserk and Рђюon a rampage, unguided by sense or reason and triggered by a demented psycheРђЮ, and commuted the sentence.
In view of these inconsistencies, the report calls for an immediate moratorium on executions, pending abolition of the death penalty in India. The report will have served its purpose if it leads to introspection within the legislature, the executive and the judiciary on the relevance of the death penalty in India.