Choose life
Taiwan's defence ministry recently offered about NT$131 million (HK$33.7 million) in compensation to the family of an air force serviceman who was wrongly executed in 1997. Was it a case of a costly (some might say isolated) mistake or is something more fundamental at stake here?
The power to inflict capital punishment essentially raises the question about the authority and legitimacy of the state to take away life. What is the difference between the execution of Muammar Gaddafi by his fellow countrymen and executions by the state? In other words, under what circumstances could the state, which is entrusted with the duty to protect the life and liberties of its people, be justified to do exactly the opposite?
One potential justification for imposing the death penalty may be to safeguard the lives and liberties of other members of society. This encompasses elements of both preventive and redressive justice. At the preventive level, one can argue that the death penalty not only ensures that further crimes won't be committed by a given convict, it also deters other potential criminals from committing heinous crimes. However, there are more humane ways to deal with someone who is a threat to society. Alternatively, reformation of criminals and reconciliation between offenders and victims are goals worth pursuing.
The deterrence efficacy of the death penalty is shaky at best. Hong Kong is one of the safest places in the world, though it formally abolished the death penalty in 1993 and has not executed anyone since 1966. It is equally doubtful whether Singapore's low crime rate has much to do with its insistence on maintaining capital punishment. The death penalty has not made North Korea, Yemen, Saudi Arabia, Sudan and Somalia safe or attractive places to live.
Although it is undeniable that human beings respond to sticks, among other things, the severity of punishment is only one factor contributing to the deterrent effect of a given sanction. It is equally vital that the chances of offenders escaping arrest are relatively low, that the probability of carrying out the sanction is high, and that the punishment is administered swiftly, in a fair manner. Most of these variables are lacking with the death penalty.
Moreover, the death penalty has no deterrent implication for the criminal facing execution. Nor can it deter those who are willing to die for a political or religious cause.
As far as redressive justice is concerned, the current criminal justice system hardly takes into account the interests of victims of crimes while meting out the death penalty. Nor does retribution have a healing effect on victims. In fact, rather than satisfying the victims of crime, the death penalty always creates new victims: the relatives of those executed face serious economic, social and psychological consequences.
In addition to these theoretical issues, the imposition and administration of the death penalty raises serious practical challenges. Studies indicate that even independent courts with an established hierarchy cannot guarantee that no innocent person will ever be executed. Courts also struggle to be consistent in handing out death sentences.
The Indian Supreme Court is a case in point. While it has tried to stem the flow of executions with guidelines in 1980 pronouncing that the death penalty should be handed down only in the 'rarest of rare' cases, a look at its judgments reveals that the court has been utterly inconsistent and arbitrary in sentencing when it comes to conforming with these guidelines.
How much faith should we then bestow on the compulsory review process of China's Supreme People's Court? Similar to the 'rarest of rare' principle, the court's 2007 decision to review all death sentences and the recent direction to lower courts to pass more 'suspended' death sentences are definitely steps in the right direction.
Courts, however, have their limitations in stemming the flow of executions and bold legislative interventions are required to implement the mandate of the International Covenant on Civil and Political Rights. Otherwise, Asia will continue to be the hub of executions in the world. China and India - the two emerging economic powers and home to more than one-third of the world's population - should show the way to the rest of Asia. This can only enhance their international standing, without doing any harm at the domestic level.
It is not, however, easy to come up with reasons for retaining the death penalty in Asia. Retentionist countries range from Islamic states (Malaysia and Pakistan) to secular states (India), from developed economies (Japan and Singapore) to developing countries (China and Indonesia), from authoritarian states (North Korea) to liberal democracies (India), and from places that enjoy enviable law and order (Singapore) to countries with a low safety record (Afghanistan). Debating the death penalty in Asia is thus critical. Scholars, practitioners and civil society representatives from across the world are congregating at City University of Hong Kong today and tomorrow to explore ways to tame arbitrary and cruel executions.
We have done away with slavery. Discrimination on the basis of the colour of a person's skin has similarly been outlawed. Women are increasingly given equal respect and opportunities in all walks of life. The time has come for humanity to take another step and reverse this irreversible punishment. That would be especially fitting for the land of Buddha and Gandhi.
Surya Deva is an associate professor at the School of Law, City University of Hong Kong
