October 23, 2013

Monica Vincent

The use of the death penalty undermines human dignity; there exists no conclusive evidence of its deterrent value; and miscarriage of justice leading to its imposition is irreversible and irreparable

The last 20 years have seen considerable progress on abolition of the death penalty. The growing global trend towards abolition is by far encouraging. Approximately 150 of the 193 member-states of the United Nations have abolished the death penalty or introduced a moratorium either in law or in practice.

The cruel, inhuman and degrading punishment — a colonial importation imposed upon indigenous justice systems — is certainly a blot on progressive and civilised societies. Portugal, a former colonial power, was the first in Europe to end the death penalty in 1976. While the francophone as well as Commonwealth countries lag behind in abolishing the anachronistic and barbaric form of punishment, the lusophone countries abolished the capital punishment in law in the 1990s.

Restrictive use

Although the death penalty is not outlawed, international law advocates restrictive use and propounds a policy direction not to delay or prevent the abolition. The willingness of states to ratify and commit themselves to international legal obligations prohibiting capital punishment is steadily growing. Today, more than 80 countries are party to specialised international treaties, including the International Convention on Civil and Political Rights (ICCPR) and the Optional Protocol to the International Convention on Civil and Political Rights as well as regional instruments including Protocol No 6 and Protocol No 13 of the European Convention on Human Rights, and Protocol to the American Convention on Human Rights which calls for abolition of the death penalty. Further, international criminal tribunals established by the United Nations for the former Yugoslavia, Rwanda, Sierra Leone, Lebanon as well as the International Criminal Court exclude the death penalty as a punishment.

Countries in South and Central America were pioneers in abolishing the death penalty. A majority of the countries there are either abolitionists or abolitionists for ordinary crimes except Guatemala (a retentionist) and Cuba, which has reported no execution since 2003. Cuba also abstained from the recent U.N. Resolution calling for a Moratorium on the use of Death Penalty. The English speaking Caribbean countries are largely de facto abolitionists — as no executions have been carried out over 10 years. For example, in Antigua and Barbuda, the last execution was in 1989; Barbados 1984; Belize 1989; Dominica 1986; and Saint Lucia 1995. While the statistics are revealing, some states claim that their failure to carry out executions does not manifest any change in their policy.

The road to abolition of the death penalty in the United States is rather long. Among the 32 States that allow the death penalty, there is a stark difference in enthusiasm and application as some States overuse and others barely use it. Although the overall number of death sentences issued has declined (98 in 1999 to 37 in 2008, and 46 in 2010 to 43 in 2011), it remains to be seen if the U.S. will abolish capital punishment and champion worldwide abolition.

Undisputed leader

Europe, on the other hand, is clearly the undisputed leader with Belarus being the only retentionist in the continent. The European Union’s guidelines categorically state that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights.

Countries in Africa and Asia minus the Pacific Island states show a mixed landscape of retentionists, abolitionists and de facto abolitionists. As in other regions, some countries in these two regions also fall under the de facto abolitionist category where there has been no execution for over 10 years. For example: in Ghana the last execution was carried out in 1993; Kenya-1987; Malawi-1992; Swaziland–1989; Brunei Darussalam-1957; the Maldives-1952; and Sri Lanka-1976.

The lowest common denominators in the two regions tend to represent different legal systems, traditions, cultures and religious backgrounds. While some of the retentionist countries have neither abolished nor refrained from applying the death penalty, some noteworthy efforts have been made towards restricting it. For instance, the African Commission on Human and People’s Rights set up a Working Group that recommended that the case of the abolitionists is more compelling than that of the retentionists.

Grim statistics

The statistics on retentionist countries in Asia is rather grim as the highest number of executions has been recorded in China, the Islamic Republic of Iran, the Democratic Republic of Korea, Iraq, Pakistan, Saudi Arabia and Vietnam. Nevertheless, there has been some welcome development in the region that includes China passing a law aimed at removing the death penalty for 12 non-violent economic crimes, amending its criminal procedure law to include a rigorous review process of capital cases including recording of interrogations, introducing mandatory appellate hearings and enhancing access to legal aid. The Islamic Republic of Iran decided not to award the death penalty to juveniles below 18 who commit offences under the categories of Hudud and Qisas.

On the legislative front, some remarkable decisions include those in Indian courts — declaring that the mandatory death penalty for drug trafficking and under the Arms Act 1959 is unconstitutional; and the courts of Bangladesh which declared that the mandatory imposition of the death penalty with no consideration for personal circumstances or circumstances of a particular offence was unconstitutional. Singapore recently announced a reform of its legislation providing for the mandatory death penalty for drug-related offences.

Some Asian countries have also shifted gear as depicted in the voting patterns in the U.N. General Assembly Resolutions calling for a Moratorium on the use of Death Penalty. In the first resolution introduced in 2007, a vote of 104 in favour to 54 against with 29 abstentions was recorded. In 2008, it was a vote of 106 in favour to 46 against, with 34 abstentions, and in the most recent resolution in 2012, a vote of 111 in favour to 41 against, 34 abstentions was recorded.

It is pertinent to note that the overall trend in the General Assembly resolutions indicates a steady increase of countries voting in favour and a sharp decline of countries voting against the Resolution. In the Asian context, for example, Mongolia voted against in 2008 but in favour in 2012; Thailand voted against in 2007 but abstained in 2012; and Indonesia and the Maldives voted against in 2008 but abstained in 2012.

The Pacific Island states are largely abolitionist or abolitionist in practice/abolitionist for all crimes. Whilst there is political will towards abolition, some of the Small Island States lack the resources required to report on or implement international conventions. For instance, although Kiribati, Solomon Islands and Tuvalu abolished the death penalty in the 1970s, they have not ratified the ICCPR and its Optional Protocol as resources are a real and pressing concern.

Consensus among the international community on universal abolition of the death penalty is clearly looking forward and it is just about time the handful of retentionist countries garnered the momentum and showed leadership in ending the collective embarrassment. The use of the death penalty undermines human dignity, there exists no conclusive evidence of its deterrent value, and miscarriage of justice leading to its imposition is irreversible and irreparable.

Repressive tool

The abolitionist movement has made remarkable strides in moving the death penalty debate beyond arguments of sovereignty; it has established that the death penalty, however administered, is a repressive tool of the criminal justice system and violates internationally accepted human rights standards of right to life.

While all stakeholders in the international community should continue their collective and sustained efforts, it is important to remember that political will and the leadership of the government and its parliamentarians remain pivotal in abolishing the remnants of colonial barbarism, and in entrenching a justice system that is civilised and reformative. South African judge Justice Chaskalson, in his historic opinion banning the death penalty in his country, remarked that “the right to life and dignity are the most important of all human rights … and this must be demonstrated by the state in everything it does, including the way it punishes criminals.”

(The writer is an analyst in law, public policy and international affairs. Previously Human Rights Officer at the Commonwealth Secretariat, London, she is now an advocate practising in the Madurai Bench of the Madras High Court)


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