Background: The Guardian
If Mr. Mollah committed the crimes he was convicted for, and if anyone deserves to die, he does. It is hence not surprising that the death penalty is on everybody’s lips in Bangladesh these days. However, we do not wish to comment on the case of Mr. Mollah, as we would hardly be in a position to do so. We leave this case to others more familiar with it and more competent than us. Instead, we will offer some thoughts on capital punishment in general, drawing from the debate about killing criminals in our respective home countries – South Africa and Germany.
This column will not be a popular one. A 2011 study of capital punishment views in Bangladesh found that two out of three college students support the death penalty, whereas only 14 percent oppose it “strongly” or “very strongly”. In June 2012, one of us asked bdnews24.com readers whether they believe that the death penalty is morally acceptable; 59 percent said it is.
If a referendum were to be held in South Africa concerning the death penalty, there is no question that the majority of people would also vote in favor of it. This may make it seem as though the banning of the death penalty in South Africa is undemocratic and fails to respect the will of the people. However, democracy is not merely a matter of majority opinion. Democracy involves the division of power and checks and balances, hence the separation of the legislative, executive and judicial branches of government. No governmental authority should dominate, and that goes for the “will of the people” too, since the people elect the parties that rule the country and make the laws. In the end, however, the ultimate authority is the constitution of the country which enshrines a bill of rights and outlines the principles of government. The first act of the Constitutional Court, led by Judge Arthur Chaskalson, in post-apartheid South Africa was to abolish the death penalty, since it was seen to violate several fundamental human rights, the right to life and the right to dignity being foremost. Proponents of the death penalty face a logical problem: if it is wrong to take a life, then it is wrong to take the life of a murderer too, and the person who takes the life of the murderer, even with the sanction of the state, also thereby does wrong.
Besides fundamental human rights, Judge Chaskalson and the Constitutional Court also had in mind the historical abuse of the death penalty for political reasons. During apartheid South Africa, as in Nazi Germany, the death penalty was used to kill the political opponents of the current regime. Often these victims of the death penalty were people of the utmost moral integrity, such as the German students and professors who formed the White Rose organization to resist the Nazi government during the Second World War. In South Africa in 1964, Nelson Mandela himself faced the death penalty during the Rivonia Trial for resisting the racist apartheid regime. He was found guilty of sabotage and only escaped the death penalty because of intense international pressure on the South African government. Ken Saro-Wiwa, a Nigerian poet who fought for the environmental rights of his people, was not so lucky and was hanged in 1995 by his government. In many countries today throughout the world, the death penalty is used not to ensure justice but to achieve its opposite.
In Germany, Article 102 of the Basic Law, the country’s constitutional law which came into effect in 1949, states that “capital punishment is abolished”. Constitutional jurists widely agree, however, that this article merely makes explicit what is already implicit in the first article of the Basic Law. Article 1 establishes human dignity as the central and highest value of the German legal order and reflects the intention to elevate Germany beyond the inhumanity of Hitler Germany. In 1952, when the German parliament debated, and eventually struck down, two motions calling for the reintroduction of the death penalty, Germany’s first post-war Justice Minister, Thomas Dehler, delivered a historic speech in which he rejected the idea that the question of capital punishment should be decided by popular vote, comparing the death penalty to witch burning. He said: “I do not care about the ‘peoples’ conviction,’ that is, the opinion of the man on the street, when the question on the table is of the highest political and legal order.” Dehler argued that the act of executing criminals would “put the state on the same level as the criminals it was condemning”. He further raised doubts about the deterrent effect of capital punishment, and he reminded law makers that executions cannot be undone and there will always be judicial errors.
In fact, there is no conclusive evidence that capital punishment is a more effective deterrent than life imprisonment. A 2009 survey of American criminologists revealed that over 88% believed that the death penalty was not a deterrent to murder. This is consistent with the fact that the crime rate is not higher in countries without the death penalty. Dehler was also right to emphasize the danger of states’ taking innocent lives. Amnesty International reports that, in the United States alone since 1973, over 130 people have been released from death rows due to evidence of their wrongful convictions. In 2004, a lower court in Dhaka sentenced Shah Alam Babu to death for murder. Two years later, the High Court ordered his release from jail after it established that Babu was convicted due to mistaken identity. Like many trials in Bangladesh, Babu’s trial at the lower court did not meet internationally recognized standards of fair trial.
In Bangladesh, the death sentence can be awarded for a number of crimes, including waging war against Bangladesh, murder and abetment of suicide of a child or an insane person. Legal scholar M. A. K. Azad estimated in 2008 that, between Bangladesh’s independence in 1971 and then, the state has hanged 247 convicted criminals, and that there are not less than 950 people on death row. In 2010, the Asian Legal Resource Center put the number of death row inmates at 407. – Do these people deserve to die? According to the principle of “an eye for an eye,” people deserve to be treated as they have treated others. In the case of punishment, this implies that we should do to the criminal whatever the criminal did to the victim: If somebody murders another person, the appropriate punishment is death. We can see that this principle is at best problematic when we ask ourselves what it would tell us to do with rapists: rape them? Or arsonists: burn down their houses?
Whether or not murderers deserve to die, killing them serves little purpose other than to demonstrate a nation’s cruelty. Capital punishment is a barbaric remnant of uncivilized society that caters to the sentiments of the mob, the dark human instincts of revenge and retribution. While the death penalty is ineffective as a deterrent to crime, it does set a violent example. When the state hangs criminals, and even if it disguises these actions as justice, it sends a message that devalues human life in general. The message is that human beings are disposable, that it is okay to answer violence with violence. It likely was this line of thought that led Mahatma Gandhi to his famous observation that an “an-eye-for-an-eye-for-an-eye-for-an-eye … ends in making everybody blind.”
The death penalty should be abolished in Bangladesh not only because it conveys the wrong message, is often administered inequitably and puts the lives of innocent human beings at risk, but also because it contradicts the values laid down in Article 11 of Bangladesh’s constitution which guarantees “respect for the dignity and worth of the human person”. The case for the unconstitutionality of capital punishment in Bangladesh is further strengthened by considering Article 35 (5) of the constitution which prohibits “cruel, inhuman, or degrading punishment”. It certainly seems a bit of a semantic stretch and quite implausible to describe hanging as neither cruel, nor inhuman, nor degrading.
So for ethical, political and legal reasons, the death penalty should be forbidden everywhere, and in particular in a criminal justice systems as deeply flawed as Bangladesh’s – even if this means that murderers and serious criminals do not receive the punishment that many people think they deserve.
This article was co-authored with Alan Northover. A version of it was published under the following title:
“Some thoughts on capital punishment,” The Independent 18 (Bangladesh, 17 February 2013)