www.sacw.net
| 16 November 2006
Taking
a Blunderbuss to a Mouse:
Some
Observations on the Mohd. Afzal Case
by
Mukul Dube
[This article in Mainstream and on Counterpunch on 11 November 2006.]
According to the formula, the death penalty is awarded only in the "rarest of rare" cases. There must be something
about the crime or the criminal which causes the judge to decide that
the penalty of imprisonment for life will be insufficient. The crime
must be grave or heinous enough to warrant the extreme penalty, or else
the criminal must be considered entirely without hope of redemption.
Criminal. It goes without saying that the person sentenced to death
must have been shown conclusively to have committed whatever was the
crime. It goes without saying that that person’s guilt must
have been established, to quote another formula, "beyond the
shadow of a doubt."
Was Mohd. Afzal’s guilt in the "Parliament attack
case" established in this conclusive way? Here I shall look
only at the fact that the judgment states that his guilt was
established on the basis of circumstantial evidence.
By its very nature, circumstantial evidence is a weak form of evidence.
It involves the putting together of two and two and does not depend on
the sensory perceptions of any person. Circumstantial
evidence says not "he did it" but "in
view of this, this, and this, I think he must have done it."
It can be called deduction, it can be called conjecture, it can be
called jumping to a conclusion. Certainly it is not based on
something seen, heard, smelt, touched or tasted.
In a lay person, the juxtaposition of a supposed crime deemed to be of
the "rarest of rare" kind and an inherently weak
form of evidence causes perplexity and unease. It makes one think of
stud bulls running around a racing track meant for greyhounds, or of a
5 lb. hammer used in driving home a screw with a Phillips head.
There are those among Christians who hold that the principle of lex
talion ("an eye for an eye") was divinely ordained.
However, this principle, which was long ago abandoned by most civilised
societies, demands the strictest proof, as we see.
"On the evidence of two witnesses or of three witnesses he
that is to die shall be put to death; a person shall not be put to
death on the evidence of one witness..." (Deuteronomy
17:6,7). And here is Jehovah in the Old Testament: "...but no
person shall be put to death on the testimony of one
witness." (Numbers 35:30)
Judaism recognises the death penalty, but it places strict conditions. "For a Jew to be convicted by a Jewish court, two
eyewitnesses must have seen the perpetrator about to commit the crime
and warned him of the potential penalty. The murderer must verbally
answer that he chooses to proceed anyway. (For a non-Jew, only one
witness is required and no verbal warning.)" ('Jewish Journal
of Greater Los Angeles', 10 March 2000)
How many eye-witnesses testified against Mohd. Afzal in the "Parliament attack case"? One half, perhaps? An
eighth, or a sixtieth? Less than one witness, that is certain.
The judgment of the Supreme Court was an attempt to produce a
poetically elegant piece of prose, never mind the effect of much
unwanted use of the definite article. "Afzal is characterised
as a 'menace to the society’, whose 'life
should become extinct’ to satisfy 'the collective
conscience of the society’" (Nirmalangshu Mukherji,
quoting from the judgment in "Should Mohammad Afzal
Die?", Economic and Political Weekly, 7-13 October 2006).
What is conscience? My understanding of my own conscience has always
been that it is what prevents me from shop-lifting, from kicking
puppies, from bursting fire-crackers at midnight. It is also the force
which makes me try to assist anyone who seems to be in distress.
The "collective conscience of the society" seems an
altogether different phenomenon. It does not prevent "the
society" from doing wrong: instead, it impels it to do that
which so many consider wrong but which it transforms into
right—if we are to go by the specious reasoning of the
judgment—by reference to a man who is described as a "menace to the society," etc.
Other than the Supreme Court, which waved it about to justify its award
of the death penalty to Mohd. Afzal, who knew of this "collective
conscience of the society"? Did "the society" itself know of it? Were
the people
of, say, Kashmir and the North-East among the possessors of this
unusual "collective conscience"? Just who are those
who make up "the society"? I am compelled to
conclude that they are those who swallow the police’ version
of facts dished out by an obliging and singularly uncritical media. I
shall not repeat what so many have said about the impossibility of
Mohd. Afzal’s getting a fair trial, given the sustained glare
of one-sided publicity his case had received.
I have argued elsewhere ("S.A.R. Geelani and the Dance of
Holy Justice," Mainstream, 3 September 2005) that, in setting
free Geelani with a face blackened for life, the Supreme Court gave the
media what they wanted. In the case of Mohd. Afzal, the Supreme Court
enabled the media to sate the public thirst for blood which they had
created while co-operating with another arm of the justice machinery,
the police. With the wheel of unreason moving in the only way in which
wheels can move, we search in vain for the distinction between
administration and judiciary.
As a side light, there was a comedy of errors in which the errors were
not those which the chief actor described as such. Colin Gonsalves,
advocate for Mohd. Afzal at a late stage, has insisted again and again
that his 250-page submissions—their length is stated each
time—did not contain the plea that his client, whose guilt
would implicitly have been accepted, be executed by lethal injection
rather than by hanging. Indeed Mr. Gonsalves’ submissions did
not contain that plea; but he forgets that he filed a supplementary
affidavit—which bore the signature of Mohd. Afzal
who, when he signed it, did not know what it contained - - which
described lethal injection as a method of execution much to be
preferred to hanging because it was humane, not painful, etc. Why
should a man sign such an affidavit who knew that above his head hung
the death penalty? In the context of larger philosophical
considerations, perhaps? Mr. Gonsalves, otherwise hardly
tongue-tied, does not say.
There is something else, however, which eminently credible people say
who were present in court at the time. It is that Mr. Gonsalves, in his
oral submissions, clearly asked that his client Mohd. Afzal be put to
death not by hanging but by lethal injection. Unlike written
submissions and supplementary affidavits, oral submissions do not form
part of the record unless the court refers to them in its
judgment. The court did not refer to them in this instance,
possibly because of their absurd nature: but, I repeat, those who say
that the defence lawyer’s spoken words included this
admission of his client’s guilt—and apparently the
foreknowledge that the sentence to be handed down would be that of
death—are credible people.
The efforts to have Mohd. Afzal’s death sentence commuted
have attracted the attention of the media, but in a strange and perhaps
predictable way: they have transformed the matter into a debate for and
against capital punishment. Whether or not Mohd. Afzal received justice
is not of any interest to them. The oak is all, the acorn forgotten.
Other than the talk about Colin Gonsalves and lethal
injections—of which Mr. Gonsalves seems to have become aware
rather more than a year after I heard it—there is the
question of whether or not the trial judge said to Mohd. Afzal, in his
chamber and in the presence of Seema Gulati, then amicus curiae, that
he should not worry because he was "our man. ' This
must remain forever a rumour, since no one can be expected to say for
the record that it happened. If it did happen, though, once again no
difference remains between judiciary and administration.
Mohd. Afzal, we might recall, is a former militant who, since his
surrender, was in close and constant contact with the "forces
of law and order." Lamb to the slaughter? One man at least
will be hanged: forget that the genesis of the plot to blow up
Parliament has not been and cannot be explicated. Do not ask if there
even was a plot. On the basis of circumstantial evidence, with no
independent witness or corroboration, the Supreme Court has passed
judgment in order to satisfy its constructed "collective
conscience of the society." A fine conscience, one which bays
for blood.
The strongest argument against the death penalty is the imperfections
of systems of justice. For example, the Stanford Law Review uncovered
350 20th-century cases in the U.S. in which "clearly
innocent" people had been sentenced to death. That 75 of
these cases dated since 1970 shows an improvement over time, it could
be argued.
Besides, execution has by no means been shown to be a deterrent. Now
and then, murderers—that is, those convicted of
murder—are hanged and the people are made to know of this.
Yet murders continue to be committed. I do not know if anyone has
tabulated these figures for a year or for a decade or two: on the one
side, the numbers of people hanged for having committed murder; and on
the other, the numbers of murders committed in the weeks and months
following the hangings. When many guilty people get away scot free, the
miscarriage of justice involved in hanging an innocent becomes all the
more appalling.
I shall probably never decide if I am absolutely for or absolutely
against the death penalty. On the one hand are the Modis, for whom a
sentence of being torn asunder by horses would be horribly mild: and on
the other are the Afzals, who are pushed towards the gallows although
against them proof positive exists by no stretch of the imagination.
In our land of justice, the Afzals are tried, never mind that for most
of their trials they have no lawyers to speak for them: while the Modis
do not even have charges framed against them. Our socially conscious,
responsible, etc., media find it convenient and safe to debate the
death penalty in the abstract.
A friend suggested another way of looking at this affair. She said that
the "attack on Parliament" had been offered as the
reason for the immediate mobilisation of the armed forces on a scale
unprecedented in peace time; and that many hold that the two countries
were brought to the brink of a nuclear war. Now Pakistan never accepted
that it had done anything wrong or that it had looked the other way
while its men did wrong and its territory was misused. For its part,
India never presented evidence so convincing as to put Pakistan
squarely in the dock. Pakistan has only expressed a general regret,
which is very different from saying "sorry." That
is, war-like India ("You tried to blow up our Parliament: we
will blow up your country") could not extract even an apology.
It was to justify that inordinately expensive and dangerous "reaction", my friend said, that Mohd. Afzal was
sentenced to be put to death. Blood alone could serve as the ink on the
rubber stamp which would close the file in a satisfactory and
satisfying way; and Mohd. Afzal was State property, a readily available
resource, an expendable pawn well placed.