ADPAN – Pakistan:- NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

ADPAN

Media Statement – 22/9/2017

NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

Abolish the Death Penalty, And  Re-Introduce the Moratorium on Execution Pending Abolition

ADPAN is appalled reports that another 4 persons, tried by Pakistan’s military courts, may be executed soon after their death sentence was confirmed by the Chief of Army. This Military Court, which came into being in January 2015, for the purpose of speedily trying persons accused of committing terrorist offences, falls short of international fair trial standards and requirements, including the denial of the right to appeal.

Decisions of these military courts, unlike normal criminal courts in Pakistan, are not subject to appeals to the High Court and/or the Supreme Court.

This denial of the right to appeal means appellate courts will not have the  opportunity of  analysing  the  evidence  produced  before  the military court  or  dwelling  into the “merits” of the case.  This reasonably will increase the possibility of miscarriage of justice, and hence the likelihood of a person not deserving the death penalty (or even an innocent person) to be wrongfully deprived of his/her life.

The Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday(20/9/2017)  the death sentences awarded to four alleged ‘ terrorists’. This ‘confirmation’ is really an execution order, and this four persons could thereafter be executed at any time. (Geo News, 20/9/2017; Sify.com 20/9/2017; Dawn 20/9/2017; Pakistan News Service – PakTribune 21/9/2017 ).

Shabbir Ahmed,  Umara Khan,  Tahir Ali and Aftabud Din, according to a government statement, vide the Inter Services Public Relations, stated that these 4 persons  were ‘involved in killing of 21 persons and injuring another person’ and also that ‘…arms and explosives were also recovered from their possession…’. It also stated that they were tried by military courts that then sentenced them to death.

Earlier this month, on 8/9/2017, it was also reported that Army Chief General Qamar Javed Bajwa  had confirmed the death sentence of four other persons, being Raiz Ahmed, Hafeez ur Rehman, Muhammad Saleem and Kifayatullah. (Daily Pakistan, 8/9/2017). These persons were said to have caused the death of 16 persons, and that arms were recovered in their possession. It was also disclosed that 23 others were also awarded imprisonment of various durations by the military courts.

Pakistan had a moratorium on executions for about 8 years, until the end of 2014, when it was lifted for terrorist linked offences, and thereafter for other capital offences. Since then, about 471 persons have been executed for various crimes.

After the December 2014 terrorist attack at the Army Public School in Peshawar, the Pakistan government set up this military court for speedy trial of detained terrorists. The military courts (Field General Court Martial – FGCM) came into being in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment.  This legislation had a sunset clause, and would have expired on Jan 7, 2017.

However, in March 2017, President Mamnoon Hussain signed the 23rd Amendment Bill 2017, which has now become an Act of Parliament, that had the effect of extending duration of the military courts for another two years, starting from January 7, 2017.

Article 10 of the UN Declaration of Human Rights stipulates that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ The trying and sentencing of a person/s allegedly committing a certain kind of offence before a special ‘court’, different from the  court having the jurisdiction to try criminal cases in Pakistan may also be considered discriminatory,

Article 14(5) of the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, states   clearly that, ‘ Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’

The current unavailability of the right of appeal to higher courts on convictions and/or sentences of these military courts is clearly is a violation of the International Covenant on Civil and Political Rights, and a denial of the right to a fair trial.

ADPAN calls on Pakistan not to proceed with the executions of persons convicted and sentenced to death by the military courts, until they have been accorded the right to a fair trial including the right to have the conviction and sentence reviewed by a higher tribunal, which would reasonably be the High Court and thereafter the Supreme Court of Pakistan;

ADPAN calls for the repeal of the Constitution Amendment/s and the law that created these military courts;

ADPAN calls for all persons charged with a crime in Pakistan be tried by the already existing criminal courts of Pakistan, and shall be accorded a fair and public hearing by an independent and impartial tribunal;

ADPAN calls on Pakistan to immediately re-impose a moratorium on execution, pending abolition of the death penalty.

 

Charles Hector
For and on behalf of ADPAN (Anti Death Penalty Asia Network)

JAPAN – UPR Joint Submission by ADPAN and 14 CSOs,

JAPAN: The Death Penalty

 For the United Nations Universal Periodic Review of Japan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and

14 Civil Society Organisations (CSOs) listed below

 

Since the last UPR of Japan in 2012, 26 persons have been executed from 2012 to 2017, whereby 2 have been executed in 2017. A total of 36 death sentence have been finalized from 2012 to 2016. As of the end of 2016, there are 128 persons on death row.

Death penalty continues to exist in statute books  for crimes that do not result in the death of any  victim.

Whilst, we continue to call for the abolition of the death penalty in Japan, and for a moratorium on all executions pending abolition, we would like to highlight specific concerns concerning the death penalty and unfair trials, which we hope would form part of UN member states recommendations at the upcoming UPR.

In brief,  besides calling for the abolition of the death penalty, and an immediate moratorium on all executions, we are hoping that the following specific recommendations be made to made to Japan:-

 

– That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

 – That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. We recommend a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

 

  1. REFORM OF THE ‘LAY JUDGE SYSTEM’ COURTS – UNANIMOUS DECISION FOR DEATH PENALTY
  2. In 2009, a new trial system was introduced, known as the ‘lay judge system’, whereby serious cases like murder that carry the death penalty are conducted before 6 ordinary citizens and 3 career judges. All that is required for the death penalty to be imposed is a simple majority, which includes 1 vote from one of the 3 career judges.
  3. As of March 2015, prosecutors have sought the death penalty for 31 persons, and the ‘lay judge system’ courts have handed down the death penalty for 23 cases, which is about 74%. In comparison, when such cases were tried and finalized between 1980 and 2009 before career judges, only about 55% received the death sentences in cases where the prosecution sought the death penalty.
  4. There is an unnecessary and even dangerous risk of injustice for a person to be sentenced to death in a situation when the decision of the court is only based on a simple majority decision of a ‘lay judge system court’. This is because legally trained and experienced judges are typically more likely to apply reason and law dispassionately to the facts. In serious cases of dreadful crimes, international experience over time and cultures shows that legal training and experience are essential qualities in the application of fair legal reasoning. After all, that is why all countries have legally trained people administering justice. Under the lay judge system at this time, the experienced legally trained judges can be outvoted by the lay jury.
  5. Justice demands that a decision to impose the death sentence should be unanimous. In the United States of America, a conviction and a death sentence requires a unanimous jury verdict in the Federal Government and all states save 2. Two states, Louisiana and Oregon, permit convictions on less-than-unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote. This is a similar position that exists in many other jurisdictions, which still have the jury system when it comes to criminal cases.
  6. Overwhelmingly, although it is expressed in different language in different systems, courts need to be satisfied beyond reasonable doubt before a finding of guilt in serious criminal matters. This is a much higher standard than ‘on balance’ or ‘by majority’. Similar reasoning should apply to the question of whether to execute – the tribunal should be satisfied by a significant margin. We say that a unanimous verdict should be required before a person is to be put to death.
  7. As such, in the Japanese ‘lay judge system’ courts, a simple majority decision of a panel of 9 persons (6 lay persons and 3 judges) has the potential to be unjust. The fact that 4 other persons, which may also include 2 of the 3 experienced career judges  decided not to convict and/or impose the death penalty is very relevant and should not be ignored.

RECOMMENDATION :That Japan makes it a requirement that no one shall be sentenced to death unless the decision of the court, including ‘lay judge system’ courts, is unanimous.

 

  1. MANDATORY APPEALSAND CONSIDERATION FOR CLEMENCY BEFORE EXECUTION
  2. On 13/7/2017, Koichi Sumida and another were executed at the Hiroshima Detention Center and Osaka Detention Center respectively.
  3. Sumida was sentenced to death in lay judge trial held in February 2013, and there were no appeals, which means that no higher courts and/or bodies had the opportunity of reviewing the decisions of the first court.
  4. This is the third execution of an inmate whose death sentence that was imposed by the ‘lay judges system’ courts did not go on appeal to the High Court, or the further appeal to the Supreme Court.
  5. The reasons why this persons who were sentenced to death did not choose to exercise their right to appeal is a mystery.It is not clear why they did not file appeals, or why they later chose to withdraw their appeal as was by Sumida.
  6. Some, amongst death row inmates call this “volunteer”. Some just wish to be executed, having given up the will to live. It is akin to a desire to commit suicide.
  7. It is a fact that courts can make mistakes, and it is not uncommon in most jurisdictions that appeal courts do overturn convictions and/or sentences.
  8. As an example, it must be pointed out that the Tokyo High Court, did overturn lay judges court’s decisions to impose the death penalty in three cases, which were subsequently upheld by the Supreme Court in 2015. The absence of an appeal, would have not allowed the High Court and/or higher courts correct errors made and save lives.
  9. In many jurisdictions, in capital cases, a plea of guilty will not be accepted. The trial will have to proceed to enable the courts to make its own determination based on the evidence adduced, that the said accused person is proven to be guilty in accordance to the required standard of proof in a criminal case, and thereafter whether evidence adduced and the circumstances of the case justify the imposition of the death penalty.
  10. The rationale behind this practice in capital cases, is the desire of the State to ensure that there is no miscarriage of justice, and no innocent person or convicted person not deserving to be sentenced to death, is wrongly sentenced to death.
  11. Applying the same rationale, there is a need to put in place a mandatory appeal system, that will require all cases of persons sentenced to death, to have their cases mandatorily brought before the Appeal courts in Japan, to enable the Appellate courts to review not just the death penalty, but also the conviction that resulted in the death sentence.
  12. In the case of Japan, this would mean that there shall be an appeal to the High Court, and thereafter a further appeal to the Supreme Court for all cases where the convicted has been sentence, irrespective of whether the convicted chooses not to appealthe conviction, and/or the death sentence.
  13. In the same way, after all appeals are done, all cases that carry the death sentence, shall go through the existing clemency process in Japan, noting that a such process could also decide to commute the death sentence to a prison sentence, or even result in a full pardon in exceptional cases.
  14. In such capital cases, if the accused and/or convicted, do not have a lawyer, then the court shall appoint a lawyer to act on behalf of the said accused.

RECOMMENDATION:- That no one is executed until and unless cases are reviewed and considered by all existing appellate courts and clemency processes in Japan. There should be a Mandatory Appeal System and Clemency Processes for all capital penalty cases.

We refer also to the earlier submission made by the Advocates for Human Rights, the Center for Prisoners’ Rights and the World Coalition Against the Death Penalty and state our support for the recommendations made therein.

 

Dated: 13 September 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Center for Prisoners’ Rights Japan

Forum 90, Japan

Ichiyou-kai, Japan

Inter-religious Network “Stop the Death Penalty!”, Japan

Japan Catholic Council for Justice and Peace, Sub-Committee for Abolition of the Death Penalty

Jesuit Social Center Tokyo

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

ODHIKAR, Bangladesh

Christian Development Alternative (CDA), Bangladesh

Norden Directions, Australia

Democratic Commission for Human Development, Pakistan

Think Centre, Singapore

Civil Rights Committee of  Kuala Lumpur And Selangor Chinese Assembly Hall, Malaysia

 

 

See related posts:-

JAPAN – Recommendations and Japan’s Responses in previous UPRs on the issue of Death Penalty

JAPAN: The Death Penalty – UPR Submission by Advocates for Human Rights, Center for Prisoners’ Rights and World Coalition Against the Death Penalty

 

ADPAN – STOP HARASSMENT OF KIRSTEN HAN, ANTI-DEATH PENALTY ADVOCATE AND HUMAN RIGHTS DEFENDER

ADPAN

 

Media Statement – 5/9/2017

STOP HARASSMENT OF KIRSTEN HAN, ANTI-DEATH PENALTY ADVOCATE AND HUMAN RIGHTS DEFENDER

ADPAN(Anti Death Penalty Asia Network) is perturbed by the fact that Singapore is now investigating Human Rights Defender and Anti-Death Penalty activist, Kirsten Han, allegedly for illegal assembly, in connection with a candle light vigil hours  before Malaysian Prabagaran Srivijayan was executed at 6.00 am on 14 July 2017.

On 3/9/2017, more than 7 weeks later, 2 police officers showed up at her house and handed her a letter saying that they were investigating an offence of “taking part in a public assembly without a permit”. (FMT News, 5/9/2017). It must be noted that the police were present during the said vigil outside Changi Prison, which was attended by anti-death penalty advocates and family members, and it was allowed to proceed on condition that no candles were lighted.

As such, one could ask whether this current action by Singapore is an harassment of a Human Rights Defender and Anti-Death Penalty advocate.

Freedom of Expression and Peaceful Assemble is a universally recognized fundamental human right, as stated also in the Universal Declaration on Human Rights. The impositions of requirements like permit applications and the need to give prior notice of several days to the authorities, effectively undermines the right to Peaceful Assembly and protest, which at most times needs to carried out speedily to be effective and/or relevant.

In the case of Prabagaran, on 13/7/2017,  there was a hearing of an application at the Singapore Court of Appeal for a stay of execution until an application before the Malaysian courts for a referral of the case to the International Court of Justice(ICJ) was heard and finally disposed off, which reasonably should have been granted. The Singapore Court of Appeal, heard and dismissed the application in the late evening, and decided that the execution proceed as scheduled at dawn on 14/7/2017. No appeal against this decision was practicable in the few hours overnight.

In these circumstances, where a life was in the balance, it is alarming to suggest that the peaceful assembly attended by respectful persons, under the watch of the police, hours before Prabagaran was hanged, was ‘illegal’ because no permit was obtained.

It is absurd, to even suggest that the peaceful assembly and protest attended by persons, hours before Prabagaran was hanged, was ‘illegal’ because no permit was obtained.

It must also be pointed out that 29 year old Prabagaran who was sentenced to death for the offence of drug trafficking allegedly committed in April 2012, maintained his innocence until the very end.

In Malaysia, on or about 20/7/2017, the authorities prevented the entry of Adilur Rahman Khan from Bangladesh, a current Executive Committee member of ADPAN, from attending and participating in the ADPAN General Assembly and Malaysian National Conference on ‘Abolition of the Death Penalty in Malaysia and in Asia-Pacific’ that was happening in Kuala Lumpur on 20-22 July. According to Adilur, no reasons nave been given by the Malaysian authorities for the denial of entry to date. Malaysian Human Rights Commission (SUHAKAM) is currently investigating the matter, and we hope to hear their findings soon.

ADPAN is appalled by this growing trend of harassment and violation of human rights of Human Rights Defenders and anti-death penalty activists in the ASEAN region.

ADPAN calls for immediate discontinuation of this investigation against Kirsten Han, an anti-death penalty advocate and Human Rights Defender.

ADPAN calls for the removal of all hurdles and restriction that prevent the exercise of one’s fundamental right of peaceful assembly and protest.

ADPAN also reiterates its call for the abolition of the death penalty, and the imposition of a moratorium on execution pending abolition.

 

Charles Hector

Sarmad Ali

For and on behalf of ADPAN

 

The Anti-Death Penalty Asia Network (ADPAN) is a regional network of organization and individual members committed to working for the abolition of the death penalty in Asia-Pacific.