[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

May 4



INDONESIA:

The constitutional debate on the death penalty


The capital punishment debate resurfaces whenever a group of death row
inmates lodges a judicial review with the Constitutional Court against
death penalty articles under the 1997 Narcotics Law used by the criminal
court to sentence them. Almost 130 countries have abolished capital
punishment, while the rest, including Indonesia, still use it.

The petitioners argue that the death penalty is a denial of the right of
life as guaranteed by Articles 28A and 28I of the 1945 Constitution.
According to international human rights instruments such as the
International Covenant on Civil and Political Rights (ICCPR), the right to
life is a "non-derogable right". Indonesia is a party to the ICCPR but has
not acceded to its protocols. The petitioner's lawyers usually argue that
as the Constitution mimics the ICCPR's wording almost verbatim, they have
to be interpreted parallel to the ICCPR.

The ICCPR does not prohibit the death penalty but its protocols do. As
Indonesia is not party to any ICCPR protocol, the practice of the death
penalty will not violate any international obligation to the ICCPR as long
as the treatment of the inmates on death row and the execution of convicts
is conducted in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article
28I (1) of the Constitution guarantees that the right to life cannot be
limited under any circumstances, but Article 28J (2) states that "In
exercising his/her rights and freedoms, every person shall have the duty
to accept the restrictions established by law... based upon the
consideration of morality, religious values, security and public order in
democratic society". The debate goes on as to whether the application of
Article 28I (1) -- due to the phrase "cannot be limited under any
circumstances" -- is non-derogable, including by Article 28J (2).

The convict's attorneys think that the rights under Article 28I (1)
belongs to the cluster of rights which are non-derogable, including
Article 28J (2). The government on the other hand, is of the opinion that
Article 28J (2) may derogate Article 28I (1). Toward this polemic, there
are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of
the death penalty is stated nowhere in the Constitution. The wordings of
"cannot be limited under any circumstances" under Article 28 I (1) cannot
therefore be interpreted so as to mean prohibiting the death penalty. A
comparison with Germany and Vietnam's constitutions would reveal that the
prohibition of the death penalty is supported with a written, literal
expression of the articles of the Constitution. As Indonesia's
Constitution has no such provision, the death penalty is so far in line
with the Constitution.

Second, by using the teleological approach, it can be seen from the
preamble that the purpose of the Constitution is to first "protect the
whole people of Indonesia and the entire homeland of Indonesia". Indonesia
reportedly has 3.2 million drug users with the number of deaths around
15,000 users per year or an average of 41 deaths per day due to overdose
or drug-related AIDS infections. The state has a constitutional obligation
to prevent these deaths and to prevent the occurrence of a lost
generation. Thus, the protection of the people by the state is paramount
and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear
that Article 28 J is placed under the same chapter as Article 28 I, which
is the amended human rights chapter. It is then conclusive that Article 28
J was made "in relation and with due regard to" Article 28 I. We do not
consider it appropriate to interpret that the restriction towards the
implementation of human rights under Article 28 J refers to clusters of
rights other than Article 28 I. The restriction under Article 28 J appears
to cover the whole set of the Constitution.

Moreover, under the social contract construction, perpetrators are deemed
to have waived their right to life, which is protected under the law, by
acting in a manner that results in the loss of life. Thus, by "knowingly"
killing others and being aware that their action entails capital
punishment, they have given "implied consent" to be punished with the
death penalty.

There are also a number of non-legal arguments which support the death
penalty, especially when it comes to "the most serious crime". There is no
common understanding among UN Countries on this matter. Nonetheless, we
can refer to the concluding observation of U.N. Doc. CCPR/C/79/Add. 25,
1993, which stated that the "imposition of [the death penalty]... for
crimes that do not result in loss of life, as being contrary to the
Covenant."

The Advisory Council of Jurists of the Asia Pacific Forum considers such
crimes to be those which involve the wanton destruction of human life. In
their book, International Criminal Law and Human Rights (2003), Claire de
Than and Edwin Shorts define the scope of "most serious crimes" as
encompassing modern threats such as drug trafficking and terrorism.

Narcotics-related crimes are the sort which may result in the loss of
life. The debate however continues as narcotic accomplices does not "pull
the trigger" themselves. From a consequalist point of view, it may not be
relevant that a certain crime is conducted "willfully and knowingly",
which means that there is a direct causal relation between the intention
to kill and the consequences resulting from such intentions or only
"knowingly", which suggest that the intention to kill is not as manifest
as the previous condition, as long as it results in the loss of life.

Thus, killing by producing and dealing narcotics is by no means a lesser
evil compared to killing a person directly, as the perpetrators are fully
aware that their actions will result in the loss of life.

Comparative studies have shown that most of the retentionist countries
decided to abolish the death penalty after a long crucial public,
judiciary and legislative debate. Due to de jure reality of death penalty,
what may be done is restricting the offenses for which the death penalty
is allowed under the law.

(source: Jakarta Post; Mohamad Mova Al Afghani
(http://indolawreport.blogspot.com) is the founder of the Center for Law
Information. Pan Mohamad Faiz is the founder of the Institute for
Indonesian Law and Governance Development.)






SOUTH AFRICA:

There's only one method to install death penalty


The debate that continues to rage in all forms of media over whether the
death penalty should be reintroduced is becoming a bore.

There is only one way that the death penalty can ever be reintroduced in
South Africa, and it is not by way of referendum.

It can be done through an amendment to the country's constitution.

At least two thirds of the members of Parliament must vote in favour of
such amendment.

Even if a referendum was held and 100% of people voted in favour of the
death penalty, that alone is not enough to bring about the reintroduction.

The theory is that our elected leaders in Parliament are more astute than
the masses (yes, you can stop laughing), and if 67% of the leaders in
parliament give the go ahead for something like the re-introduction of the
death penalty, then that is far better than 100% of the masses deciding.

Mass hysteria is something that civilized societies try to avoid.

As an example, what if a deadly virus sprang up that had no cure, was
incredibly contagious and was 100% fatal within say a month of contracting
the virus, and it became immediately apparent that humanity itself was at
risk of extinction.

How would a civilized society deal with this problem?

Mass hysteria may suggest that everyone be tested immediately, and once
tested and found negative, you get a tattoo somewhere on your face and be
quarantined, and if tested and found positive you get a bullet there and
then.

(source: The Star)






GLOBAL:

Death Penalty Backed in 4 Countries


A large majority of people in several countries, including the United
States and Mexico, support the death penalty, according to a poll by
Ipsos-Public Affairs released by the Associated Press. 71 % of respondents
in Mexico and 69 % in the U.S. back the idea of sentencing convicted
murderers to death.

In South Korea, 72 % of respondents agree, as well as half of respondents
in Britain, 45 % in France, and 44 % in Canada. People in Germany, Italy
and Spain are less inclined to support capital punishment.

The United Nations (UN) opposes the death penalty, but the punishment is
legal in over 70 countries. Capital punishment was abolished in Mexico in
2005. Until then, the Mexican Constitution allowed the death penalty in
certain circumstancessuch as acts of treasonbut no person was executed in
the country for more than 50 years.

Since 1976, 1,072 people have been put to death in the United States,
including 15 this year. More than 1/3 of all executions have taken place
in the state of Texas. Fourteen states and the District of Columbia do not
engage in capital punishment, and moratoriums on executions have been
issued in Illinois and New Jersey.

More than 900 people have been executed in South Korea since 1948. A
variety of offences are punishable by death, including murder, expression
of sympathy towards North Korea and appropriation of national treasures.
Still, there have been no executions in South Korea over the past ten
years. If the death penalty is not practiced on anyone by Dec. 29, Amnesty
International will classify South Korea as a "death penalty abolitionist
in practice."

According to Amnesty International, the number of executions following a
capital punishment sentence in the world fell from 2,148 in 2005, to 1,591
in 2006.

Polling Data

Do you favour or oppose the death penalty for people convicted of murder?

Favour ---------Oppose

South Korea---72%---28%

Mexico---71%---26%

United States---69%---29%

Britain---50%---45%

France---45%---52%

Canada---44%---52%

Germany---35%---62%

Italy---31%---64%

Spain---28%---69%

[source: Ipsos-Public Affairs / Associated Press; Methodology: Telephone
interviews with 9,146 adults in Britain, Canada, France, Germany, Italy,
Mexico, Spain, South Korea and the United States, conducted from Feb. 9 to
Apr. 5, 2007. Margin of error is 3.1 %.]

(source: Angus Reid Global Monitor : Polls & Research)