Sounding the death knell for capital punishment

| March 7, 2019

International condemnation couldn’t save Myuran Sukumaran or Andrew Chan.

Early on the morning of 29 April, 2015, the Bali Nine ringleaders were executed by firing squad in Indonesia for their part in a 2005 drug trafficking plot to smuggle more than eight kilograms of heroin out of Bali and into Australia.

The pair met their end dressed in white t-shirts while singing – alongside four Nigerians, a Brazilian and an Indonesian national – after their appeals for clemency were repeatedly denied.

Before the firing squad ended his life, Sukumaran reportedly asked a favour of his spiritual adviser, Reverend Christie Buckingham.

“Ask the question in a year’s time: has this made any difference? Has it made any difference in Indonesia? Has it made any difference to the way Australians feel about the death penalty? Ask this question in one year, in five years, and in 10 years. Ask it to yourself, ask it to those around you, and ask it to anyone who will listen. Has this made a difference either way? Has this made a difference?”

They’re death penalty questions still worth asking, not only as they relate to the drug trade in Indonesia, but philosophically, and on a global scale, says Bryan Horrigan, dean of Monash University’s Faculty of Law.

What difference does the death penalty make?

Not much is the short answer, he says, with no reliable evidence that demonstrates it achieves its objectives, which ostensibly are often said to be deterrence, justice and to increase safety in the community.

“Capital punishment across the globe is administered in discriminatory ways,” Professor Horrigan says. “It’s a faulty way of dispensing justice. No legal system is immune from error and someone pays the ultimate price for those flaws.

“Reliable evidence-based studies of public attitudes in countries with the death penalty show a growing popular appreciation of the diplomatic and trade downsides of a country retaining the death penalty.

“Furthermore, the death penalty disproportionately harms the marginalised – the poor, minority groups, including people who belong to racial and ethnic minorities, those who are psychologically unwell, and those whose political view, sexual orientation or gender identity does not conform to social norms in executing countries. In short, capital punishment is neither effective nor just.”

The unclear toll around the world

In 2017, 993 executions were carried out, according to Amnesty International, down four per cent on the previous year, and 39 per cent on 2015.

“These totals do not include the thousands of executions carried out in China, where data on the use of the death penalty remained a classified state secret,” the organisation states in its global report, Death Sentences and Executions, 2017.

The methods used included beheading, hanging, lethal injection and shooting.

Amnesty International recorded executions in 23 countries in 2017, the same as 2016. More than 50 countries retain a willingness to execute.

Many of these countries are in the Asia-Pacific region, including China, Pakistan, Japan, Singapore, Vietnam and Indonesia.

“It’s a faulty way of dispensing justice. No legal system is immune from error and someone pays the ultimate price for those flaws.”

Death sentences are also trending downwards, the report says, as the world aligns to the United Nations’ Sustainable Development Goal No.16, which focuses on the promotion of just, peaceful and inclusive societies, with one of its specific targets being to “promote the rule of law at national and international levels, and to ensure equal access to justice for all”.

Professor Horrigan says that while execution and death sentence numbers are falling, progress towards the worldwide abolition of the death penalty is slow; however, “the progress made in recent decades means that capital punishment has gone from majority to minority status worldwide”.

In 1977, when Amnesty started campaigning against the death penalty, 16 countries had abolished it. Today, 142 countries have abolished the death penalty in law and practice.

A strong advocate for human rights

Monash University has always been a prominent academic and social advocate for human rights. In 2000, its law faculty established the Castan Centre for Human Rights, which is an acknowledged world-leading centre for human rights scholarship and advocacy.

Then, in July last year, about the same time as the federal government was releasing Australia’s Strategy for the Abolition of the Death Penalty, the University was collaborating with Reprieve Australia to establish the Anti-Death Penalty Clinic as part of the Faculty of Law’s clinical program, under its new Clinical Guarantee for students.

Students who took part were linked with legal and NGO partner bodies in Asia to undertake research and analysis of current death penalty cases, and to assist legal teams and human rights advocates in numerous jurisdictions.

“The Anti-Death Penalty Clinic pilot has been a tremendous success,” Professor Horrigan says. “We’ve already taken steps to increase the number of students, partner organisations and countries of operation involved in the next phase.”

Based upon this platform, and strong alumni links in anti-death penalty advocacy and social justice more generally, the Faculty of Law is partnering with The Capital Punishment Justice Project (formerly Reprieve Australia) to establish a region-first Anti-Death Penalty institute, as a hub for a global network, focused on policy, research, advocacy and casework devoted to the abolition of the death penalty in Asia and beyond.

Monash University, The Capital Punishment Justice Project and the Australian government’s Department of Foreign Affairs and Trade jointly hosted an event at the five-yearly World Congress Against the Death penalty in February to discuss abolishing the death penalty in Asia, and to tell the world about the planned institute.

The institute will draw on the expertise of the Castan Centre and other Monash faculties, reach out to alumni who are committed to its objectives, and aim to partner with government and associated NGOs and organisations, such as the World Coalition Against the Death Penalty (WCADP) and the Anti-Death Penalty Asia Network (ADPAN).

“To amplify and accelerate the work already being undertaken, we need to engage government and philanthropic partners to ensure we achieve long-term success and reach our ambitious and worthy  goals,” Professor Horrigan says.

Barrister Julian McMahon is The Capital Punishment Justice Project’s president, a Monash alumnus, and was the longest-serving member of the team of lawyers representing Myuran Sukumaran and Andrew Chan in Bali.

A passionate advocate for the abolition of the death penalty, and the 2016 Victorian Australian of the Year for his work towards this, he says the execution of Sukumaran and Chan in 2015 galvanised Australia and Australians.

“If you look at Australia in 2015, there was a groundswell of opposition to the death penalty because of the executions. Since then, Australia has strongly worked against the death penalty. So that was our moment in time when everything clicked,” he says.

“Firstly, the case brought home the reality of an impending execution into the lounge-rooms of Australia.

“Secondly, Myuran and Andrew were clearly rehabilitated in a good way [and] thirdly, we had both a foreign minister and shadow foreign minister who were able to work closely and coherently together on this issue, so Australia presented a unified voice against a particular set of executions.”

A critical time to abolish the death penalty

McMahon says the fight to abolish the death penalty globally has entered a third and critical phase.

The first major phase began after World War II, with the Universal Declaration of Human Rights (UDHR), a historic document that was adopted by the United Nations General Assembly on 10 December, 1948, and later the adoption of the International Covenant on Civil and Political Rights (ICCPR) by the United Nations General Assembly in 1966.

The covenant commits its parties to respect the civil and political rights of individuals, including “the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial”,

The death penalty isn’t prohibited by the ICCPR, but a second optional protocol to that document was adopted in 1989, aimed at bringing an end to the death penalty worldwide.

McMahon traces the second phase of the fight to the expansion of the European Union in the 1990s.

“This brought countries that would once have freely executed people in Eastern Europe into the EU, and you cannot be a member of the EU if you’re an executing country,” he says.

“The momentum of this period, and the influence of the EU, added energy to the debate around the world as more and more countries abolished the practice.”

The third phase, McMahon says, is to persuade the remaining executing countries to follow by providing more high-quality, in-depth social research that challenges both indifferent politicians to pursue the end of the death penalty, and the political operators who insist on the death penalty for political ends despite its lack of utility.

In 2012, leading anti-death penalty advocates, the London-based Death Penalty Project, commissioned Oxford University’s Professor Roger Hood to design and conduct a public opinion survey in Malaysia on its citizens’ views on the then-mandatory death penalty laws.

The results showed that, while the politicians deferred to “public opinion” in support of the death penalty as their reason not to change, empirical research suggested that once citizens were made aware of the intricacies involved in capital punishment, their support for the practice actually diminished.

This, McMahon says, was undoubtedly one of the factors that led to Malaysian lawmakers in 2017 voting to remove the mandatory death penalty requirement for drug offences.

Then, on 10 October, 2018 – World Day Against Death Penalty – Malaysia’s Minister for Law in the Prime Minister’s Department, Datuk Liew Vui Keong, reinforced this commitment when he announced the government’s intention that “all death penalty will be abolished. Full Stop.”

More to be done

Sara Kowal is The Capital Punishment Justice Project’s vice-president, the clinical supervisor of Monash University’s Anti-Death Penalty Clinic, and a criminal lawyer with law firm Galbally Rolfe.

While she applauds the moves by Malaysia to abolish the death penalty, she warns there remains a lot of work to do in the Asia-Pacific region.

“We understand that it’s likely that the bill will be presented to Malaysia’s cabinet in March this year,” she says.

“If the bill is successfully passed, Malaysia will join the powerful international momentum that’s emerged over the past few decades, where we no longer tolerate the notion that the state should be empowered to kill its citizens.

“But we’re very concerned by the efforts of the Philippines government to reinstate the death penalty, despite having abolished it twice previously and having ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which commits the Philippines to the permanent abolition of the death penalty,” she adds.

“Likewise, recent reports from Sri Lanka suggest they will end their 43-year moratorium on the death penalty next month, to execute those convicted of drug-related offences, so we cannot afford to be complacent on this issue.”

This article was published by Lens at Monash University.