by: Shahizad Sulaiman
Introduction
Human
rights discourse is developing in tandem with the social and historical
development of global community. Capital punishment which is considered the
oldest punishment meted out for certain crimes for centuries until today, has
now become an indicator to determine whether a state has fully embraced the
human rights idea. Though the idea of abolishing the death penalty has been
mooted since the 1750’s by academics namely the Italian jurist, Cesare Beccaria; the French
philosopher, Voltaire; and the English law reformers, Jeremy Bentham and Samuel
Romilly, it began to gain traction in
the past 20 years. These academics along with Quaker leaders and other
social reformers defended life imprisonment as a more rational alternative.[1] Among the earliest countries to formally
abolish the capital punishment in their criminal justice system are Venezuela
in 1867, Netherlands in 1870 and Michigan in 1846.[2] As of October 2019, 142
countries have abolished the death penalty in law or practice.[3] In Malaysia, the mandatory and
discretionary capital punishment is provided in the criminal justice system.[4]
Capital Punishment from the International Human Rights Perspective
The abolition of capital punishment
was a progressive development starting with the adoption of the Universal
Declaration of Human Rights 1948 (UDHR). The UDHR does not expressly prohibit the
imposition of the death penalty. However, the question of whether capital
punishment should be incorporated in the UDHR was debated at the General
Assembly.[5]
Other international and regional human rights instruments, such as the International
Covenant on Civil and Political Rights (ICCPR) 1979, the European Convention on
Human Rights (ECHR) 1950 and the American Convention on Human Rights 1969, do
not outrightly ban the death penalty but they imposed certain limits to ensure that the death penalty is observed in the strictest sense
and would only be implemented for the most serious crimes. The Second Optional Protocol to the ICCPR[6]
is the first instrument to strongly and clearly urge the State Parties to end
all executions and to take all necessary measures to abolish the death penalty
within their jurisdiction. Subsequently, 7 resolutions entitled “Moratorium on
the use of the death penalty” were adopted by UN since 2007 to further urge
countries to end the death penalty[7].
As the abolitionists is challenging
the status quo of death penalty, understandably to find their arguments surpass
the number of arguments provided by the retentionists. For the purpose of this
article, three main arguments from the abolitionists and retentionists respectively,
are briefly discussed here.
Absoluteness
of rights to life
It is
undisputed that the rights to life is the most fundamental right upon which
other rights are granted to the individual. Therefore, it is accepted by the
international community that the right to life is a jus cogen which could
not be derogated under any circumstances[8]. Whereas, allowing the
state to impose a death sentence on any individual means empowering the state
to violate every human right to the fullest extent permitted by law. Thus, it
renders all other human rights trivial. Furthermore, death penalty is
considered by abolitionists as a form of torture. The
cruelty of the death penalty is manifest not only in the execution but in the delay
in executing the penalty[9].
Restorative Justice
It is undeniable that the purpose of
sentencing has evolved over time. According to the abolitionist, the ultimate
purpose of a sentence is to rehabilitate the offender in order to return he or
she as a productive member of society[10].
However, the death sentence denies a person the opportunity to change and it merely
serves as a retribution for the satisfaction of the victim or family of the
victim and that does not correspond to the value of the forfeited life. However,
the retentionist would rebut this argument on the basis that it fails to look
on the perspective of justice for the victim or family of the victim which will
be discussed later.
The risk of sentencing an innocent[11]
No criminal legal system is infallible and thus there is always the risk of sentencing an innocent person. This is one of the arguments strongly used by the abolitionist[12]. Most of those convicted and sentenced are persons of less advantaged socio-economic backgrounds, women and foreign nationals, and those from certain ethnic minorities[13]. The risk is compounded with several weaknesses in the criminal justice system namely the limitation on access to competent and effective legal counsel, delays in notification of arrest, lack of access to language interpretation for a non-citizen accused, secretive pardon procedure and so on so forth[14]. All these factors contribute to the miscarriage of justice and with the imposition of death penalty the error is irreversible. However, the retentionist points out that this is not the fault of the death penalty but the fault of the administration of justice system involving procedural requirement and standard of proof. It indicates there is a need to overcome the flaws in the procedural and evidential systems and the standard of proof should be raised from ‘beyond any reasonable doubt’ to ‘beyond any shadow of a doubt’[15].
The retentionist also has several other arguments or counter arguments to the abolitionist’s narratives as follows:
The risk of sentencing an innocent[11]
No criminal legal system is infallible and thus there is always the risk of sentencing an innocent person. This is one of the arguments strongly used by the abolitionist[12]. Most of those convicted and sentenced are persons of less advantaged socio-economic backgrounds, women and foreign nationals, and those from certain ethnic minorities[13]. The risk is compounded with several weaknesses in the criminal justice system namely the limitation on access to competent and effective legal counsel, delays in notification of arrest, lack of access to language interpretation for a non-citizen accused, secretive pardon procedure and so on so forth[14]. All these factors contribute to the miscarriage of justice and with the imposition of death penalty the error is irreversible. However, the retentionist points out that this is not the fault of the death penalty but the fault of the administration of justice system involving procedural requirement and standard of proof. It indicates there is a need to overcome the flaws in the procedural and evidential systems and the standard of proof should be raised from ‘beyond any reasonable doubt’ to ‘beyond any shadow of a doubt’[15].
The retentionist also has several other arguments or counter arguments to the abolitionist’s narratives as follows:
Deterrent for potential crimes
For retentionists, the purpose of
sentencing is to deter potential crimes. This can be done by making
punishment so severe that it outweighs the benefits gained from any criminal
act. Furthermore, by making “an example” of an offender, it is argued that
others will learn their lesson on the consequences of such crime and will be dissuaded
from committing a similar crime. They further argue that a death sentence is a
far more effective deterrent than life imprisonment[16].
The problem with this argument is that the current implementation of death
punishment is carried out in a ‘secretive manner’ or within the four walls of
the prison. If the punishment is meant as a deterrence to the public, the
execution should then be carried out in public. Furthermore, there is no
evidence or data that could prove that the death penalty has served or could
have served as a deterrence for future crimes as crime rates are still
increasing over the years in the countries that implement the death penalty[17].
‘An eye for an eye’ is justice for
the family of the victims
The proponent of capital punishment
argues that it provides the victim or the victim’s family the ‘closure’, in the
sense that it reduces the sorrow of the crime suffered by victims and their
family which can only be achieved through retributive punishment. Hence to sentence
a murderer to death is a form of justice as it brings closure to the family of
homicide victims. Nonetheless, there is no universal agreement on what would result
in such ‘closure’ as some argue that forgiveness could also bring closure while
others argue that there is no such thing as ‘closure’ and thus disdain the
word.[18]
Religious argument
Last but not least, the retentionist argues that some religions such as Islam provides death penalty as punishment for certain crimes and to support the abolition of death penalty would mean to go against the very command of God[19]. This is best demonstrated in the ‘Ramadan Affair’ when a prominent Islamic scholar in Europe, Tariq Ramadan published a manifesto in 2005, calling for an immediate moratorium on the application of the death penalty in Muslim-majority countries on the basis that injustices in the implementation of the punishment[20]. The call received backlashes from other prominent Muslim scholars including Taha Jabir Al-Alwani and Yusuf Qaradawi. In response to the call, Egypt’s Al-Azhar Darul Ifta’s collective opinion implied even proposing a suspension of the hudud was a violation of Islam tantamount to apostasy.[21] However, the religious argument could also be used to support the abolition of the death penalty in which it could be argued that a country which is not implementing Islamic Law is not authorized to take the life of a human being since human life is the greatest gift of God hence it can only be revoked through the procedures determined by God.
My standpoint and Conclusion
As Prof. William Schabas mentioned in his article, it is premature to suggest that customary law prohibits capital punishment[22]. While it is clear that the prohibition of death penalty is not an inherent human rights principle, it is an established principle in human rights laws that the death penalty is limited to the most serious crimes. However, what is defined by serious crime is indefinite and lacks universal agreement. In a democracy, a law is the system of rules which a particular community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. In this regard, the decision of whether death penalty should be abolished or retained should be in the hands of the majority people of a country and is hinged upon their understanding of the rights to life and capital punishment. As such, the decision may differ from one country to another. In this regard, currently the majority of Malaysians are inclined toward the retentionist’s arguments as discussed above[23]. However, as part of a global community we have to observe at the very least the minimum standards set by the international community. Therefore, while retaining the death penalty in its criminal laws, I am of the opinion that a state should strictly observe the conditions in the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty issued by the UN Economic and Social Council which among other things, capital punishment be imposed only for the most serious crimes and when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts[24].
Religious argument
Last but not least, the retentionist argues that some religions such as Islam provides death penalty as punishment for certain crimes and to support the abolition of death penalty would mean to go against the very command of God[19]. This is best demonstrated in the ‘Ramadan Affair’ when a prominent Islamic scholar in Europe, Tariq Ramadan published a manifesto in 2005, calling for an immediate moratorium on the application of the death penalty in Muslim-majority countries on the basis that injustices in the implementation of the punishment[20]. The call received backlashes from other prominent Muslim scholars including Taha Jabir Al-Alwani and Yusuf Qaradawi. In response to the call, Egypt’s Al-Azhar Darul Ifta’s collective opinion implied even proposing a suspension of the hudud was a violation of Islam tantamount to apostasy.[21] However, the religious argument could also be used to support the abolition of the death penalty in which it could be argued that a country which is not implementing Islamic Law is not authorized to take the life of a human being since human life is the greatest gift of God hence it can only be revoked through the procedures determined by God.
My standpoint and Conclusion
As Prof. William Schabas mentioned in his article, it is premature to suggest that customary law prohibits capital punishment[22]. While it is clear that the prohibition of death penalty is not an inherent human rights principle, it is an established principle in human rights laws that the death penalty is limited to the most serious crimes. However, what is defined by serious crime is indefinite and lacks universal agreement. In a democracy, a law is the system of rules which a particular community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. In this regard, the decision of whether death penalty should be abolished or retained should be in the hands of the majority people of a country and is hinged upon their understanding of the rights to life and capital punishment. As such, the decision may differ from one country to another. In this regard, currently the majority of Malaysians are inclined toward the retentionist’s arguments as discussed above[23]. However, as part of a global community we have to observe at the very least the minimum standards set by the international community. Therefore, while retaining the death penalty in its criminal laws, I am of the opinion that a state should strictly observe the conditions in the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty issued by the UN Economic and Social Council which among other things, capital punishment be imposed only for the most serious crimes and when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts[24].
[1] Vaibhav, Goel, Capital punishment: A human right examination
case study and Jurisprudence, in International NGO Journal Vol. 3 (9), September,
2008, at p. 155.
[2] C. Dieter, Richard, The Death Penalty and Human Rights: U.S.
Death Penalty and International Law, at p.3.
[3] Amnesty International, Fatally Flawed: Why Malaysia must
Abolished the Death Penalty, 2019, at p.12.
[4]Capital punishment is currently retained
under nine Malaysian laws for a total of 33 offences, including 12 for which it
is imposed as the mandatory punishment.
[5] Gudmundur, Alfredson, The Universal Declaration of Human Rights,
Asbjorn Eide: 1999, at p. 782.
[6] The Second Optional Protocol to the ICCPR was adopted and
proclaimed by General Assembly resolution 44/128. It was adopted on 15 December
1989 with the aiming to abolish the death penalty. Office of High Commissioner
for Human Rights,
> accessed on 22 April 2020.
[7] Death Penalty Information Centre, 2018, <https://deathpenaltyinfo.org/news/a-record-120-nations-adopt-un-death-penalty-moratorium-resolution>
accessed on 22 April 2020.
[8] Galtung, Dr. Irene, A Jus Cogens Approach,
accessed on 22 April 2020. J. Riga, Peter, Capital Punishment and the Right
to Life: Some Reflections on the Human Right as Absolute, University of
Puget Sound Law Review, Vol.5.23, pp. 33-45.
[9] Prokosch, Eric, Human Rights V. The Death Penalty: Abolition and
Restriction in Law and Practice, <
https://www.amnesty.org/download/Documents/148000/act500131998en.pdf>,
accessed on 23 April 2020. Human Rights Commission of Malaysia, Annual Report
2017 (2018), p. 188.
[10] G. Lambert, Eric; Clarke, Alan; & Lambert, Janet, Reasons
for Supporting and Opposing Capital Punishment in the USA: A Preliminary Study,in
Internal Journal of Criminology, 2004, pp. 3-6.
[11] The death case of Malaysian Beauty Queen, Jean Pereira in 1979, is
a perfect example of the possibility of miscarriage of justice. Malay Mail, The
Inevitability of Error, December 15, 2015,
assessed on 25 April 2020.
[12] IAIS Malaysia, Report: Roundtable Discussion on Abolishing Death
Penalty, March 19,2019, unpublished report, p.4.
[13] Note 3 at pp. 19 -22
[14] Ibid at pp. 26 -34
[15] Note 12 at p.
[16] Note 10 at p. 5.
[17] Note 12 at p. 4.
[18] Kanwar, Vik, Capital Punishment as Closure: The Limits of a
Victim-Centered Jurisprudence. LSN: Criminal Law (Public Law), 2007.
[19] Mumisa, Michael, Sharia law and the death penalty: Would
abolition of the death penalty be unfaithful to the message of Islam?,
Penal Reform International, July 2015.
[20] Ramadan, Tariq, An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World, 2005,
accessed on 23 April 2020.
[20] Ramadan, Tariq, An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World, 2005,
[21] Brown, Eric, After the Ramadan Affair: New Trends in Islamism in
the West,
https://www.hudson.org/research/3780-after-the-ramadan-affair-new-trends-in-islamism-in-the-west,
accessed on 23 April 2020.
[22] Schabas, William, The Abolition of Capital Punishment from an
International Law Perspective, ,
accessed on 23 April 2020.
[23] Hood, Roger, The Death Penalty in Malaysia; Public Opinion on
Mandatory Death Penalty for Drug Trafficking, Murder and Firearms Offences,
The Death Penalty Project, 2014, at pp. 9 -11. Abas, Azura, ‘No to
abolishing mandatory death sentence’, New Straits Times, (Kuala Lumpur
January 14, 2020) <
https://www.nst.com.my/news/nation/2020/01/556545/no-abolishing-mandatory-death-sentence>
assessed on 25 April 2020.
[24] Resolution 1985/50 was approved on 25 May 1984,
,
accessed on 25 April 2020.
