Calls for abolition of the death penalty gather pace
The death penalty is again at the centre of attention. Earlier this month the United Nations Human Rights Council organised in Geneva the Biennial High-Level Panel on the subject and very recently the Coalition against the Death Penalty in Asean (Cadpa) launched its namesake campaign in Bangkok with participants of civil society organisations from across the region. As a participant at both events, I have noted five key issues.
First, there is an increasing similarity between the deprivation of the right to life through the death penalty and torture, inhuman and degrading treatment. This is a main issue that was discussed at the Biennial High-Level Panel. A number of countries are pushing the position that execution of a person/prisoner is tantamount to torture. This is strongly opposed by retentionist countries in the council.
While experts noted the equation of execution with torture may not have reached the status of customary international law, different stages of application of the death penalty may be considered an act of torture. These include incarceration of death row prisoners beyond certain periods of time; 10 years is cited as the standard. Execution of prisoners in secrecy or without giving them or their family members advance notification is equally inhuman; it degrades the humanity of the prisoners who are executed and the psychological and mental wellbeing of their families. The degrading nature of certain methods of execution such as lethal injection was also raised. On this the Human Rights High Commissioner recognises the positive role played by the manufacturer of chemicals used for lethal injection, which has refused to supply them.
Secondly, the issue of the mandatory death penalty that is still being used in many countries including those in Asia was brought up for discussion. I presented the view that since the mandatory death penalty compels the court to impose the death penalty without providing the opportunity for the defendants to prove their intention and mitigating factors, it violates the rights to be heard of those defendants and directly contravenes their right to life. Additionally, since states have created courts of law that are independent and equipped with expertise to receive and weigh evidence, to preclude their ability and capacity in considering the circumstances of the offence and offender as well as relevant aggravating and attenuating factors of the case renders futile the investment that they have made on their own judiciary.
Thirdly, the impracticality of the death penalty is highlighted. As countries become increasingly interconnected and crimes such as terrorism and corruption are international, cooperation in criminal matters across borders is critical to combat these crimes. There are incidents in Thailand where our requests for extradition of suspects have been turned down since we still retain the death penalty. Many judicial bodies around the world, including the Supreme Court of Canada, the Constitutional Court of Italy and the European Court of Human Rights have declared illegal or unconstitutional extradition or deportation of a suspect to a country where he or she will face the death sentence or where the death penalty is applicable.
It must be emphasised that the fight against terrorism and corruption at national and Asean levels will be weakened if extradition of suspects cannot be achieved simply because many of our jurisdictions still maintain the death penalty. In short, the death penalty is more and more a liability rather than an asset when it comes to combatting and deterring crimes.
Fourthly, despite a rising global trend toward the abolition of the death penalty, there is a counter movement in the Asean region to reintroduce the death penalty where it has been abolished. The Human Rights Council and CADPA similarly call for states to recognise the commitment both in terms of human rights principles and legal obligation that once they have ratified the legally binding Optional Protocol to the International Covenant on Civil and Political Rights that mandates the abolition of the death penalty, no reservation on and reintroduction of this penalty is possible. I personally call for the adoption of the “stand still and roll back” requirement that applies to the members of the World Trade Organisation for states that have ratified the ICCPR; and ICCPR members must not increase the number of crimes on which the death penalty is imposed and consider their merits and timely reform.
Lastly, there is an appeal for every state to reconsider the types of offences for which the death penalty is used. Since this penalty irreversibly takes the life of a person, it must be used with extreme care and through legitimate safeguards. It follows logically that the death penalty can only be imposed for the most serious crimes. The use of the death penalty for offences like drug charges does not address the root causes of the issue and provides only a short-term solution. It has led to politicisation of the agenda while the majority of those who are charged or extra judicially murdered are the poor and marginalised population and more often than not political rivals.
As a way forward, I propose two main recommendations. The first relates to availability and reliability of data. Discussion on the death penalty tends to be emotional rather than empirical and data is shockingly absent or incomplete. We need to base our action on data that is up to date, comprehensive, disaggregated and transparent, which will help inform policy-makers and the public about the reality, efficacy and negative impacts of the death penalty as well as addressing the gaps that may exist in the delivery of justice at the national level.
Important points on which data should be collected include the number of executions, the number of death row prisoners and the duration from sentencing to the execution. This data should also be disaggregated based on, at the minimum, the types of offences, gender and sexual orientation of prisoners, their nationality and immigration, economic and social status as well as the profile of lawyers assigned to them. This set of data can then be used to analyse the potential discrimination in the application of the death penalty and effectiveness of legal aid and to enhance transparency in the criminal justice system.
The second recommendation is the role of civic education and education that is specifically targeted for specific groups such as judges and public figures on the death penalty and related issues, based on empirical data.
Since public opinion is a major swing factor on the status of the death penalty, the public needs to be provided with a new level of understanding and facts about the issue.