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Updated: October 24, 2013 02:08 IST

A blot on progressive societies

Monica Vincent
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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)

More In: Lead | Opinion

Capital punishment reflects the state of states but not behaviour of individuals.Capital punishment for any reason is not acceptable. Reduction of crimes by democratisation of lives and by reduction of economic in equalities leading to egalitarian society is the real civilization.

from:  ARAVEETI RAMAYOGAIAH
Posted on: Oct 24, 2013 at 12:06 IST

@MVJRao - This is a vast topic that goes to the very heart of
justice. It is a balancing act that seeks to balance the very
important need for justice owed to the victim and the victim's
family, with the need for society to fulfill its mandate with
great responsibility and a sense of conscience.
If you say that the author must come up with a punishment that
deters further rape and terrorism then I'm afraid the death
penalty too is useless in this regard. It has been repeatedly
pointed out that the correlation between the degree of punishment
and its value as a deterrent is close to zero. There may be many
other ways to deter crime, but retributive justice doesn't seem
to be one of them.

from:  Raamganesh
Posted on: Oct 24, 2013 at 11:37 IST

@Raamganesh. Please notice my comment that 'advocates' who are defending
lawyers, can as well argue in courts for getting punishment other than
death for their client "rapists and terrorists". also I requested the
writer to convincingly give an alternative mode of punishment which will
bring down the rapes and terror attacks instead of just saying hanging
is barbaric, inhuman or retrograde as though the criminals who performed
the acts are progressive, human(e) or modern in their outlook.

from:  MVJRao
Posted on: Oct 24, 2013 at 08:36 IST

These preachers,they have nothing to do but only talk humanity. Some rapists, some terrorists, some murderers and criminals are sitting there and praying for the success of these preachers.I will request these preachers to look into the eyes of victim their families and the common man and their agony before preaching. First be like a common man, feel their fear and agony and then preach. If the only fear capital punishment will be abolished, the criminals will be more relaxed, more violent and we will be forced to live with permanent fear in our heart.

from:  Rakesh
Posted on: Oct 24, 2013 at 07:28 IST

Yesterday the Hyderabad police nabbed two rapists [cab drivers] who
kidnapped a young techie waiting for the bus and later raped her for
full one hour.In fact ,they claimed that they planned to abduct any
girl and rape her.So it was a planned rape.After reading the above
article now I feel ....what is the use of nabbing them,the rapists ?
They will be punished with imprisonment and let off after few years or
counsellers will be brought in to give them lessons on "MORALS
SCIENCE" . They -the culprits -will say sorry and will be left off
.They will thank the abolitionists and human rightists for not getting
them hanged. Girls will continue to get abused while culprits will
continue to go scot-free.

from:  J.S.Acharya
Posted on: Oct 23, 2013 at 14:44 IST

Hi Monica,

A nice article but I disagree with your main argument.Let's start with
the current state of Indian system-we are not a progressive society
yet and I don't know how long it will take to become one;our social
values and some of the customs are very old.e.g.,women discrimination

Now,let me start with your argument that death penalty undermines
human dignity.Based on your argument,if someone is planning a
systematic death,then it's against human dignity.How do you justify
war?War is also a systematic way to kill people but not as
standardized as death penalty.In war soldiers are killed just because
they are employed by an army,and I am not considering civilians.In
simple words,war is a more accurate way to kill people as compared to
death penalty.You also know that war will remain forever in human
civilization.Unfortunately,we have given a false glory and prestige to
war.But,death penalty is a need just like any other law to maintain
civil order.Even a judge knows that.

from:  Raj
Posted on: Oct 23, 2013 at 14:40 IST

If terrorists are gven jail terms,one day another terrorist will highjack an aeroplane and get his release only to launch another terrorist attack killing normal innocent people.Death penalty should remain until terrorism is eradicated

from:  Ramachandran.c
Posted on: Oct 23, 2013 at 14:37 IST

If the author's line of defence is to be accepted in toto, then one could argue that there is no conclusive evidence that punishment has not deterred Income Tax evaders, customs duty evasion, misuse of electricity by use of unauthorised cables ... the list could go on and on. Which would mean no punishment should be meted out to any defaulter. Can the author kindly state what other punishment would justify the crimes perpetrated by attackers of Parliament, Mumbai 26/11, bombers of Delhi, Pune, Bangalore etc. ? This kind of rhetoric only appears to be a fashion statement of the day. It should also be noted that appeal against death Penalty lies upto the Supreme Court and even thereafter reviewable by the President for commutation.

from:  Ganesh
Posted on: Oct 23, 2013 at 13:49 IST

What is the alternative ? How long should we wait for the reformation ? How about commuting life sentences after 7/14 years ? Does it not violate the human and natural rights of the society to have a secure environment ?

from:  Krishna
Posted on: Oct 23, 2013 at 13:32 IST

Time and again articles are written to advocate for abolition of
capital punishment but rarely seen any articles on right of victims to
justice which they do not get for years.Western countries,which have
abolished capital punishment,have very low crime rate and very high
conviction rate due to highly advanced criminal justice system whereas
in India and many other third world countries,most of the crimes go
unreported and many criminal easily get away with their crime due to
poor justice system and victims do not get justice even after twenty
five years example victims of Sikh riots are still waiting justice
.under such circumstances,if capital punishment is used as tool create
fear among criminals then there is nothing wrong in it.Comparing
punishment given in third world countries with punishment given in
well developed countries,is stupidity.Editor should publish more
articles on rights of victims to justice and police reforms instead of
civil rights of criminals........

from:  anoop kumar bhardwaj
Posted on: Oct 23, 2013 at 13:29 IST

This verbose rhetoric blatantly boosts the morale of the criminals,
specially of the terrorists; simultaneously its intent is also
frustrating for the law abiding citizens. The most ridiculous part was
questioning the deterrence of death penalty. If death penalty can't
deter abominable crimes, no other form of punishment can; is it
advisable to abolish all forms of punishment? If Masood Azhar and his
accomplices were executed immediately after capture, India would never
have to go through the hijacking of the IC-814 in the year 1999, and
the subsequent release of those terrorists, who later perpetrated many
acts of terrorism against India. Without retribution there can be no
justice.

from:  Ishan Sanyal
Posted on: Oct 23, 2013 at 13:28 IST

Earlier it was Anup Surendranath's article "On the verge of unconscionable hanging"[18/10/2013],followed by the editorial "Rarest of the rare opportunities"[21/10/201] with reader S.S.Mani's letter [22/10/2013] echoing the sentiments of 'removing the death penalty from the statute book'.And today it is this article.Well taken.

But, if we have to accomodate all the pardoned culprits ,how come no one is advocating for the construction of more number of high security jails with good and well equipped hospitals,psychiatrists,counsellers,recruitment of police personnels ,security guards et al?

from:  J.S.Acharya
Posted on: Oct 23, 2013 at 13:09 IST

@MVJRao - Surely you're not suggesting that people who want to
abolish the death penalty are, as you say, "defending the rapists
and terrorists"? Kindly reconsider. Taking a stand against the
death penalty is not a stand against all punishment.

from:  Raamganesh
Posted on: Oct 23, 2013 at 12:13 IST

If the hallmark of a progressive society is that it does NOT hand down
death penalty even to the hardcore criminals and murderers as argued
by the author, I for one, would suggest that the society in India not
become progressive at all. There is nothing substantive to the
arguments except for 'circular reasoning' and cold statistics but
then the trouble with statistics according to Vin Scully too often
they are used as a drunk uses a lamp post - for support rather than
for illumination.
The author is not only oblivious of justice for the victims. Clearly,
human rights not only for the criminals but also for the victims. And
to my mind, the greatest of human rights is the right of the victims
of barbarous crimes to seek justice to which any of the rights of the
criminals is infinitely inferior. Allowing criminals to get away with
a lesser punishment than they deserve in the illusory hope of their
reformation is not only distortion of justice but its very negation.

from:  M.Jameel Ahmed
Posted on: Oct 23, 2013 at 12:04 IST

Except for using the words as inhuman, barbaric and colonial, the writer has not given any reason for abolition of the capital punishment. Does the author think that the acts of the foreign terrorists in Mumbai in 2008 in which hundreds of innocents were killed or the the Delhi gang rape of December 2012 were acts which can be termed as human and progressive? If not death penalty what is the alternative punishment to be awarded in these crimes of the rarest of the rare order. Nobody rejoice when capital punishment is awarded to a hardened criminal who has no place in a civilized society. But it has to be retained and used sparingly after exhausting all legal remedies available to the accused.

from:  c.k.saseendran
Posted on: Oct 23, 2013 at 10:40 IST

To other commenters

You fail to understand that justice is not about taking revenge. It is
natural that victims of crimes will feel like taking revenge but the
role of the justice system is NOT to satisfy emotions. Capital
punishment is an institutional crime that serves no purpose in
protecting society. Countries applying this punishment normally enjoy
the highest rates of homicides. The Indian subcontinent is a violent
part of the world and the violence of the various States in the region
is obviously not helping in fostering peaceful conditions. Besides
being progressive does not entail that one should be lenient on crime.
Law has to be enforced. In India, if only the law was adequately
enforced there would be far less problems and tensions...

from:  GILLES GEORGET
Posted on: Oct 23, 2013 at 10:40 IST

Don’t get me wrong; I am not in favour of an eye for an eye as the Bible
says. But, would the good lawyer please explain to the dead victim's
family about the human right to live peacefully until death snuffed out
by the human wrong perpetrated by the criminal assailant, or the crooks
who have stolen the food of the cyclone victims in Odisha or other poor
folk throughout India?

from:  D Mahapatra
Posted on: Oct 23, 2013 at 10:35 IST

Its not good to support abolition of death penalty.the criminals deserv much severe punishment if exist

from:  Anup Upadhyay
Posted on: Oct 23, 2013 at 10:34 IST

The writer once again takes a view which normally is taken by so called arm-chair 'progressive' people who are not affected by crimes such as gang rape or terror attack. If one is a victim of such a crime, you will realize the trauma and mental agony of not only the victim but also their close relatives and their dependents for lack of future sources of living in addition to the loss of limb and disability. An advocate can argue in a court of law defending the rapists and terrorists but cannot remove the issues stated that affect the victims and their families. The writer can however suggest what kind of punishment alternative that will bring down such cases of rape and terror.

from:  MVJRao
Posted on: Oct 23, 2013 at 09:18 IST

Death sentence is a colonial importation ? Our folklore is replete with punishment by death meted out to errants, leave alone other historical records. The world over, punishment by death had been practised from time immemorial. Those who argue for abolition of death penalty have never given a convincing answer as to why it should be abolished other than stating that it is a violation of human rights. So are all other punishments. In this article, the author goes on using adjectives like 'inhuman', 'barbaric', 'repressive' etc that can be equally applied to even any simple judicial punishment. Human rights cannot be narrowly interpreted as applying to the criminals alone. When Kasab was hanged, similar voices were heard. But, what about nine of his accomplices who were shot dead in encounters at various places in Mumbai ? If their elimination was acceptable, so was Kasab's. If human rights activists do not accept their deaths, what is their solution for tackling such issues ?

from:  Subramanyam Sridharan
Posted on: Oct 23, 2013 at 08:07 IST
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