Capital punishment: not the answer in a civilised society — Sarmad Ali


The death penalty undermines human dignity, and there is no conclusive evidence available that it deters the crime rate and miscarriage of justice 

The last 20 years have seen considerable progress on the abolition of the death penalty. Approximately 150 out of 193 states of the UN have abolished it or introduced a moratorium either in law or in practice. The inhumane punishment is certainly a blot on the progressive and civilised societies of the world. Portugal, a former colonial power, was the first to abolish the death penalty in 1976, but Francophone and Commonwealth countries lag behind in abolishing the anachronistic form of punishment. However, Lusophone countries abolished capital punishment in law in 1990.

My contention is that the death penalty undermines human dignity, and there is no conclusive evidence available that it deters the crime rate and miscarriage of justice, while its imposition is irreversible and irreparable. Although international law advocates its usage in a restricted manner, it does not prevent its abolition. In the last 20 years, many countries have been willing to abolish the death penalty, but some still prefer it in their criminal justice system.

Today, more than 80 countries are party to specialised international treaties, including the International Convention on Civil and Political Rights (ICCPR), the Optional Protocol to the International Convention on Civil and Political Rights, as well as regional instruments, including Protocol Number Six and Protocol Number 13 of the European Convention on Human Rights, and Protocol to the American Convention on Human Rights, which call for the abolition of the death penalty. Further, international criminal tribunals established by the UN for the former Yugoslavia, Rwanda, Sierra Leone, Lebanon, as well as the International Criminal Court exclude the death penalty as a punishment.

Historically speaking, South American countries were pioneers in abolishing capital punishment. A majority of these countries are either abolitionists or abolitionists for ordinary crimes, except one country, Guetamala. However, Cuba is a country that has carried out no execution since 2003. Cuba also abstained from the recent UN resolution calling for a moratorium on the use of the death penalty. The English-speaking Caribbean countries are de facto abolitionists, as no execution has been carried out there in the last 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.

Europe is the continent where almost every country has abolished capital punishment, except Belarus. Africa and Asia minus the Pacific Island states show a mixed landscape of retentionists and abolitionists. Some countries in these two regions fall under de facto abolitionists. For instance, 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 majority of Asian countries are retentionists, and the statistics are grim, as the highest number of executions has been seen in China, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, Iraq, Pakistan, Saudi Arabia and Vietnam. However, some developments have taken place in China in passing a law removing the death penalty for 12 major economic crimes. Moreover, Iran has decided not to award the death penalty to juveniles below 18 or those whose offences fall under the categories of Hudood and Qisas. Pakistan introduced a moratorium on the death penalty in 2008, and since then no execution has been carried out. To the contrary, India has had executions, including those of Ajmal Kasab and Afzal Guru.

Some good decisions have also been made in India, as the court declared the death penalty for the Arms Act 1959 and drug trafficking unconstitutional. The courts of Bangladesh 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. Asian countries gearing up for voicing against the death penalty thus can be traced from the recent developments. I have learnt from the website of the UN that 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, with 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 it in 2008 but in favour in 2012; Thailand voted against it in 2007 but abstained in 2012; and Indonesia and the Maldives voted against it in 2008 but abstained in 2012.

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 the internationally accepted human rights standards of the right to life.

While all stakeholders in the international community should continue their collective and sustained efforts, it is important to remember that the political will and leadership of individual governments remains pivotal in abolishing the remnants of colonial barbarism, and in establishment of a justice system that is civilised and reformative. South African Justice Chaskalson, in his historic opinion banning the death penalty in his country remarked, “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 attorney and lecturing in Law of International Trade and Succession. He can be reached at [email protected]

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