Clemency--for the right reasons

Trust The Hindu to come up with a trenchant analysis of the Afzal death penalty/clemency imbroglio. It quite successfully cuts through to what I agree is the heart of the matter. Rather than sum up the argruments, I am reproducing the entire editorial below. You can also find it at http://www.hindu.com/2006/10/09/stories/2006100901901000.htm


While I agree with the solution proposed in the final paragraph below, I remain skeptical regarding the possibility of such an outcome. Rather I hold true to what I wrote in an earlier post, that short term political expediency will in all likelyhood overwhelm all other concerns. This is tragic, but also what we might call the logic or illogic of Indian politics. Nevertheless, we should continue demanding, as The Hindu does, a nationwide debate on the death penalty. It is long overdue.

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Clemency — for the right reasons

The issue of exercising presidential clemency and commuting to life imprisonment the death sentence passed on Mohammad Afzal in the December 13, 2001 Parliament attack case — which took a toll of nine lives, not counting the five terrorists killed by the security forces — has proved to be extremely divisive. It has pitted those who favour a hard line on terrorism against those considered soft, and politicians and groups in Kashmir against much of the rest of the nation. Yet if Afzal deserves a life sentence rather than death by hanging, it is because the death penalty is abhorrent under any circumstances. To plead for clemency alleging a flawed trial or pointing to incensed Kashmiri sentiment is to miss the point. First, it is clear that he was convicted after a fair trial, with the judiciary from the trial court through the high court to the Supreme Court concurring on both his guilt and his sentence, even while two others were acquitted. Critics of the Afzal verdict have made it out that he did not have proper legal representation; that the evidence against him was not direct but only circumstantial; and that as he did not actually take part in the attack or mastermind it, he should have been given a lesser sentence. These issues were examined at length by the Supreme Court, which found that he was adequately represented. Even after disregarding his confession to the police, the apex court found enough circumstantial evidence of his being a key conspirator who played an active role in the attack. This role included the purchase of mobile phones for the terrorists; being in contact with them in the minutes before the attack; arranging accommodation for them and staying with them; and purchasing vehicles and explosive material for the attack. As for the nature of the offence, the court found it to be "a terrorist act of gravest severity" and "a spectacle of the rarest of rare cases," warranting the death sentence.
The argument rooted in Kashmiri sentiment also seems to be on shaky ground. It is a measure of the peculiar circumstances in Jammu & Kashmir that even mainstream political parties in the State think nothing of identifying themselves with a convicted terrorist and pleading his cause. Yet going by such considerations would be subversive of the fundamental principles of the rule of law and setting a dangerous precedent. For any group or region could use its collective voice and muscle to bale out anyone convicted by a court.
The Hindu has, for some decades now, been calling for the abolition of the death penalty — and this consistent editorial position will naturally be valid for Afzal's case as well. After surviving a constitutional challenge, the death penalty is now supposed to be applied only in "the rarest of rare cases," as laid down by the Supreme Court. Yet however grave or gruesome the crime, the taking of a human life by the state under the banner of justice dehumanises society as a whole. The judicial system is not immune to mistakes, and there is always the danger of extinguishing a life in error. That this is not hypothetical has been shown occasionally by DNA evidence clearing a convicted criminal on death row. In a 1930 case in Bihar, five persons were sentenced to death on a charge of murder but had to be released because it was discovered just in time that the case had been totally fabricated by a police officer.
The most common argument advanced in favour of capital punishment is that it is qualitatively different from imprisonment and, as all fear death, it is the most effective deterrent. Yet there is little evidence that the death penalty is any more deterrent than imprisonment for life. Indeed, the evidence, if any, supports the opposite conclusion: the period when the death penalty remained suspended in the United States, for instance, did not see any change in the number of `capital offences.' Very often, rather than deterrence, the unstated rationale is retribution and revenge — the taking of a life for a life. In the Afzal case, the Supreme Court comes close to echoing such sentiments when it says: "the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender" and he "is a menace to the society and his life should become extinct." Over the past half century, proposals made on and off for the abolition of capital punishment fell through because of the argument that public opinion and the conditions in the country did not warrant such a radical change. Such a line was taken even by the Law Commission when it examined the issue in detail, but that was in 1967. Now, abolition is becoming more and more the international norm, with the whole of Europe doing without it — as India found when Portugal allowed the extradition of Abu Salem on condition that he would not be awarded the death penalty.
The Government needs to turn the issues thrown up by the latest case into a broader discussion on whether India can retain on its statute book something so abhorrent to human rights as the death penalty — and should move boldly towards its abolition. Meanwhile, in the specific case of Mohammad Afzal, the death sentence must be commuted to imprisonment for life. This is indeed a fit case for the use of presidential clemency — for the right reasons. The pleading by Afzal's wife and seven-year-old son and his background as a surrendered militant who cooperated with the authorities are reasons sound enough to exercise the executive power of clemency, which may be subject to broad judicial scrutiny but still retains a large measure of discretion.
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Commuting death—a plea, a call to morality, and a threat

Afzal’s hanging might be deferred, at least for the time being it appears that way. As is often the case in such politically and ideologically charged controversies, a variety of agendas have become intertwined. Perusing the papers I can sense three essentially disjointed elements that have crystallized over the course of these few days.

The first is legalistic. Afzal’s wife and family, with the help of his lawyers, have filed a mercy petition with the President. "He did not get justice, neither in lower courts nor in higher court. All he demands is fair trial," said his wife, adding that she hoped "justice will done by the President.” http://timesofindia.indiatimes.com/articleshow/2080356.cms
The family is quick to distance themselves from NGOs who they feel are using Afzal’s misfortune to forward their own anti-death penalty agenda. For the family this is a personal matter and they don’t seem too keen to use the NGOs in ways that the NGOs are using them.

The anti-death penalty agenda then is the second element to this controversy. It is primarily led by NGOs dedicated to eradicating it from the IPC. Their arguments are more universal and based in moral and ideological terms. Needless to say, this is a much larger debate. In India it has not been as vibrant as in other countries, though admittedly it is also not as dormant as in some, most notably China.

The third element is grounded in the logic or illogic of politics. From separatist leaders to the current CM of J&K, Ghulam Nabi Azad, all have voiced concerns regarding the political fallout of the execution. The separatists are using the specter of increased violence as a threat, whereas Azad is speaking in favor of maintaining the ‘peace.’ Added to this are voices from the BJP (as well as more right wing groups) who are looking for an opportunity to criticize the UPA government. And finally, there are the kin of those who died in the parliament attacks. So far, the media has shown little interest in reporting where they stand.

Political expediency is probably what will dominate the government’s decision in the end. But what is politically most expedient remains unclear, as the potential gains or losses in J&K will be weighed against the potential gains or losses across India as a whole. As far as Afzal’s family is concerned, the good news right now is that the entering of a plea automatically defers an execution. So until they hear back from the President, October 20 as such retains little significance.

Also see: http://www.hindu.com/2006/10/04/stories/2006100413910100.htm

Impressions in Stone--Part I

A few weekends back IUP organized a tour of the great wall for its students. At 8 am on a chilly Saturday morning, about 30-40 students and laoshis squeezed into a bus waiting outside Tsinghua’s East Gate. Our destination was not Badaling or any of the other more famous Great Wall sites that lie within an hours drive of Beijing, but instead a section of the wall from Jinshanling to Simatai renowned for its picturesque beauty and relatively untouched—that is, still authentic—masonry.

Sleepy, not a little bit tired after a strenuous first week, but also somewhat glad to be getting involved in some sort of activity, we set off. Heading in a generally northeast direction we threaded our way through Beijing’s suburbs and soon hit farmland and rolling hills. (On a clear day, a rarity given the city’s pollution, these hills are visible from my flat window in Wudaokou). From a distance most of the crops appeared to be wheat, though every now and then I thought I also spied some corn. Given my generally superior knowledge on this front, I would recommend readers go elsewhere to learn about land use surrounding Beijing.

While most students had opted to bring their study material with them, the initial part of the journey was spent celebrating one of our tongxue’s birthdays. After traveling for about 3 hours, which included a pit stop at a highway rest area, we stopped at a village for lunch. Instead of booking a regular restaurant, IUP had decided to expose us to Chinese countryside (nongcun) cuisine. We all gathered in a relatively large courtyard, about 6-7 to a table, as plates filled with nongcun fan were brought to us. Besides the fattened beef, things seemed decidedly less oily than in a standard Beijing restaurant. That said, it seemed like a lot of the food I’d had earlier, and not entirely distinctive.

Another 30 minutes on the bus brought us to Jinshanling. We had already caught glimpses of the wall from the road, but now we were finally at the wall.

The Jinshanling section of the great wall is located about 140 kilometers to the northeast of Beijing. It is so named as it straddles the Jinshan (shan=mountain) range. Work on the wall was begun with the establishment of the Ming in 1368 and lasted 21 years till 1389. It was subsequently rebuilt, in all likelihood primarily repair work, in the latter half of the 16th century. About eleven kilometers in all, it connects in the east with the Simatai section of the wall. Simatai owes its fame as the most beautiful section of the wall largely to neglect. While sites such as Badaling and Mutianyu have undergone extensive restoration, the Simatai site has lain untouched. It stretches for a total of about 20 kilometer on either of the Simatai reservoir. Simatai has an older history than Jinshanling, with some scholars dating wall construction in the area to as early as the Northern Qi (550-577 C.E.). It first surfaces in Ming dynasty sources in 1382. The section was periodically rebuilt or strengthened during the Ming and also helped repel Mongol raids in the second half of the 16th century.*

Our four-hour hike would take us from Jinshanliang to the reservoir at Simatai.


*The source for the history of Jinshanling and Simatai is the IUP information packet, and most notably the sections by great wall researcher David Spindler (IUP 1989-90).

Bomb blasts and death sentences

Latest news reports inform us that agencies have reached some major conclusions in their investigation into the July 11 Bombay bomb blasts. The biggest of these is that Pakistan’s intelligence agency, Inter-Services Intelligence (ISI), was the conceptual mastermind of the attacks. Lashkar-e-Taiba (LeT) and Jaish-e-Mohammad, in turn employing the now banned Students Islamic Movement of India (SIMI) and its modules, planned, coordinated, and executed the explosions.

Needless to say, the denials have come thick and fast from across the border. Baseless, fabricated, and intended to derail the peace process Singh and Musharraf have just managed to resurrect at the NAM summit, so goes the counter-claim. The bluster notwithstanding, it does provide a good first test for the recently formed joint anti-terrorism agency. Though, realistically speaking, little progress will be made. Whatever evidence will be shared will be summarily dismissed, and the war of words will continue. And in both countries the common man will continue to doubt the intentions of the other country’s government, while muttering platitudes that it is not the people but governments that have perpetuated this long impasse.

Other information unearthed included the routes taken by the alleged Pakistani militants to reach India: from Nepal in the north, Bangladesh in the east, and from across the Gujarat border. Interestingly, none came across the LoC in Kashmir. What does this mean, especially in the context of cross border terrorism writ large? In the past few years, the Indian government has, in general, accepted that the number of terrorists crossing over from PoK into India has declined. Indeed, that was fundamental to the ‘peace process’ moving forward. Evidently, that is not the only border to worry about, is it?

In other news, as the scheduled execution of Mohammad Afzal Guru, the purported mastermind behind the December 2001 attack on the Indian parliament, approaches, protests and strikes have been called across J&K state. The Prime Minister and the President have both been approached in the hope of clemency.

At issue is not merely the fundamental debate over capital punishment, but also the potential political fallout. It is these concerns that have prompted political leaders such as Ghulam Nabi Azad and Omar Abdullah to ask for clemency. They fear that the carrying out of the sentence would further alienate Kashmiris, and that the timing—we are in the midst of Ramadan—is also inopportune. NGOs claim, “The issue should not be seen from narrow political ends but from a larger perspective. The fact remains that the world over there is a general consensus against hanging." (http://www.hindu.com/2006/10/01/stories/2006100106071300.htm) But given ‘the where’ as well as ‘the who’ of this particular case, it is naive to expect a purely humanitarian solution.