Reducing the scope of the death penalty
This session reviewed the legal principles that condition the application and scope of the death penalty, as well as arguments from deterrence and arguments relating to Islamic law that are often advanced to widen the scope of the death penalty, before looking at the specific situations in India, Barbados, Iran, Malaysia and Afghanistan.
Overview of international law
Neetika Vishwanath examined the notion of ‘most serious crimes’ in the context of international law. She noted that “the death penalty is the only exception to the right to life recognized under Article 6 of the International Covenant on Civil and Political Rights.” International law has restricted the scope of the death penalty to ‘the most serious crimes’ and it is understood that abolition is now considered the ultimate goal. Agreement on what constitute ‘most serious crimes’ is more problematic. A number of international instruments have tried to define them and to restrict the number of eligible offences.
The Human Rights Committee provided the most authoritative opinion in its General Comment 36 on the right to life in 2018.
International law has restricted the scope of the death penalty to ‘the most serious crimes’ and it is understood that abolition is now considered the ultimate goal.
This affirmed that crimes eligible for the death penalty are restricted to acts that directly result in loss of life and are committed with the intention to kill. Article 6(5) of the ICCPR also prohibits imposition of the death penalty on persons below the age of 18 and women who are pregnant, and in various other circumstances.
With regard to procedures, a crime must be a capital crime when it was committed; death sentences cannot be reintroduced for crimes that are no longer capital crimes. Abolition must also have retroactive application for those on death row. Nor can the death penalty be imposed for crimes that are vaguely defined. With regard to conviction, guilt must be based on clear and convincing evidence. The death penalty cannot be imposed if the right to a fair trial has been violated (if confessions have been obtained by force, relevant witnesses have not been examined, the time for trial has been inadequate, relevant documents were not made available, or presumption of innocence was not respected). Further, the death penalty cannot be mandatory, because this is inconsistent with individual sentencing. The rights of a person suspected or convicted of a capital offence must be met: for example, the accused must have access to adequate legal assistance at all stages, the option of appeal to a court, and the option to seek pardon. With respect to execution, safeguards include timely notification, no extreme delay, and a stay of execution pending judicial or executive proceedings.
The panellists were asked to address the widely used argument that capital punishment deters crime. In response, they pointed out first of all that it is difficult to measure a negative. How does one ascertain that crimes would have occurred when they did not, or that the non-events in question were due to deterrence? The deterrence argument also assumes that those committing crimes are aware of the punishment they may receive.
Mr Khoo said that in Malaysia it has been useful to separate drug-related crimes from other types of crime that are eligible for the death penalty, because public opinion remains convinced that capital punishment deters most offences, whereas statistics have shown that drug-related crimes in Malaysia actually increased after mandatory death sentences were introduced. The authorities would find it relatively easy to remove the death penalty from drug sentences without creating a public outcry.
The argument from public opinion
This raises a third argument often used: that capital punishment is justified by popular support. Public opinion is perceived in Malaysia to influence political attitudes and to favour capital punishment. In fact, as others have argued, public opinion is often swayed against capital punishment by information and argument. The issue is whether “politicians lead or follow”.
The panellists were asked to comment on Islamic law and its impact on public attitudes to the death penalty. Mr Mahmodi noted that in Afghanistan legal experts frequently debate with religious scholars about Sharia and civil law. It is understood that certain elements of Hudud crimes, defined by Sharia, cannot be touched; however, the death penalty is considered to fall under Ta’zir, and as a result, as Sharia law recognizes, decisions can be made at the discretion of judges. Mr Khoo said that Malaysia stubbornly claims a form of Malaysian exceptionalism which is inconsistent with the view of Islam as universal. Mr Amiry-Moghaddam doubted that Iran imposes the death penalty for purely religious reasons; rather, it uses religion to justify and win support for capital punishment.
India has widened the scope of serious crimes by introducing the death penalty for the rape of children below the age of 18. After the issue of sexual violence became prominent, the Attorney General declared that rape is an offence even more serious than murder. In general, public opinion in India is in favour of retribution and the death penalty. India also has an extremely vague sentencing framework. Judges who wish to apply the death penalty can often find at least one precedent in case law to support their decisions.
In 2018, the Caribbean Court of Justice (CCJ) declared the mandatory death penalty unconstitutional in the case of Mr Jabari Nervais. Before this decision, a murder conviction automatically led to the death sentence.
To reach this decision, the CCJ had to reinterpret a saving clause in the Barbados Constitution which declared that mandatory death sentences were immune from challenge. It chose to consider this clause in the context of Barbados’ colonial history and applied a modern interpretation in favour of the rights of the defendant. Barbados has yet to abolish the death penalty but supports abolition, and has exercised a de facto moratorium since 1984. No execution has taken place in Barbados since 1984.
To achieve long term impact, legislative reform is required. A problem here is that, when no-one is being executed, demands
for abolition lose traction.
According to a report published recently by Iran Human Rights (IHR), Iran has imposed the highest number of executions per capita, at least in the last 11 years, and, after China, is the country with the highest number of executions. Sentences and executions have fallen following a recent amendment to Iran’s narcotics law, which restricted the scope of the death penalty. Mr Amiry-Moghaddam noted that “Iran has ratified the ICCPR […] but the term ‘most serious crimes’ has been vague and there have been many discussions around it”.
Of those sentenced to death, 68,9% have been convicted of murder, 8,8% for drug-related cases, 8,4% for rape, and 13,9% for Moharebeh (‘corruption on earth’). The latter category includes economic crimes and corruption. Three people were executed, and several more were sentenced to death, for Moharebeh crimes in 2018. The three men who were executed were arrested after the Government intensified a campaign against corruption in 2018 following demonstrations in protest at the country’s economic crisis. Corruption cases are tried by revolutionary courts, often behind closed doors. The Iranian authorities consider economic crimes to be very serious because they affect many people.
After it was elected in 2018, the new Government in Malaysia undertook to abolish mandatory death penalties. In October 2018, the minister in charge of law in the Prime Minister’s Department announced that Malaysia would abolish the death penalty entirely. However, after pushback from opposition parties, threats of public demonstrations, and media reports calling for justice for the families of murder victims, the Government returned to talking of ending mandatory death sentencing. The government is attentive to the views of religious leaders, who tend to argue that attempts to reduce or abolish the death penalty are an affront and an insult to the dignity of Islam.
Malaysia is not a party to the ICCPR, or its Second Optional Protocol, or the Convention Against Torture, or its First Optional Protocol.
Drug-related offences have been a priority for the Government. It imposes severe penalties under the Dangerous Drugs Act (1952) and in 1983 made the death penalty mandatory for a range of drug-related offences. In 2018 the law was amended to give judges discretion in sentencing. There is discussion as to whether the death penalty should be imposed for drug-related offences, because it has not proved to have had a deterrent effect and the double presumption of possession and knowledge is inherently unfair.
Afghanistan’s new criminal code (2014) limited the number of crimes subject to the death penalty. The death penalty is nevertheless frequently imposed, assisted by the fact that Afghanistan has suffered a vicious cycle of conflict for more than four decades. “The response to violence is more violence. But justice cannot be ensured by States killing their people.” Relative to most countries in the region, Afghanistan has signed many human rights instruments, including the ICCPR. “The ICCPR does not give a license [to use] the death penalty, but rather sets conditions that countries that already have it must adjust to, according to certain principles.”
Mr Mahmodi reported that the Independent Human Rights Commission has started to condemn the death penalty publicly. “We are working to obtain justice for people – not revenge.“ He drew attention to several recent incidents. In one case, public outrage after a woman was gang raped led to demands to execute the perpetrators. The government sided with the public, and the men were executed after a short trial process. After this incident, the Commission worked to raise awareness, by calling for a moratorium and organizing trainings. In another case, after a woman was killed by a street mob, the authorities followed the procedures required by the justice system, despite public demands for executions. These and other cases led the Government to draft a new penal code.
The death penalty now applies to only five categories of crime, reflecting the UN understanding of ‘most serious crimes’. The Commission continues to work for complete abolition, but this remains a difficult issue for politicians. Nevertheless, mandatory death sentences have successfully been abolished, enabling judges to exercise discretion when they consider the individual circumstances of capital cases. In addition, two important new provisions in the legal code state that no persons below the age of 20 may be sentenced to death. Though no provision yet safeguards pregnant women and elderly persons from execution, historically women have not been executed, though exceptions occurred under the Taliban.
Afghanistan remains a retentionist State and does not yet support abolition; but there has been some positive improvement. The cases of 700 people on death row are currently under review; their sentences may be commuted to imprisonment. Public opinion remains a key issue but the Commission considers that public opinion will eventually follow the law, if the law brings justice.
Challenges and recommendations
• To achieve long term impact, legislative reform is required. A problem here is that, when no-one is being executed, demands for abolition lose traction.
• Bring information before international rights bodies and local appeal courts.
• Progress step-by-step. Start by ending juvenile executions, for example.
• Focus on local research, because research describing the situation in other countries can easily be dismissed.
• Persuade journalists and the media to discuss abolition and the situation of prisoners, rather than focus exclusively on justice for victims.
“Let us be clear. Pending the full abolition of the death penalty, all human rights guarantees must be rigorously applied in every case where a person faces the prospect of capital punishment.”
UN High Commissioner for Human Rights