Following the Commonwealth Lawyers Conference in Hong Kong in 2009, the Commonwealth Lawyers Association adopted and published a policy on the death penalty.
The policy is clear cut in that the CLA is opposed to the death penalty as a form of punishment in all instances.
We put upon ourselves a commitment to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.
The death penalty is always an emotive issue. It has been abolished in many of the Commonwealth countries as any form of punishment but still remains in use in a significant number of Commonwealth countries and in some instances, has been recently reintroduced after suspension.
It remains an available penalty in the world’s most powerful countries including the USA and China.
I was present at a meeting of the various Attorneys-General of the Commonwealth when one of the Attorneys was advocating for the use of the death penalty on this proposition: ‘Why should prisoners who have committed crimes be kept alive to be fed and housed at the expense of the State? ‘
How far does one take such a proposition?
Of course there are heinous crimes where one considers the most severe punishment should be appropriate. However, if you say it would be an appropriate penalty for some crimes, it then becomes an issue of what is considered to be appropriate?
Our advocacy on this position has recently come to the fore with cases arising in Bangladesh of Motiur Rahman Nizami (Executed on the 11 May) & Mir Quasem Ali (awaiting execution) who had convictions handed down against them by the Bangladesh International Crimes Tribunal.
The death penalty is now in contemplation for them. The Supreme Court has dismissed their appeals against conviction notwithstanding an acknowledgment that there were concerns with regards to the process that occurred in the proceedings.
The Tribunal was established in 2009 to investigate and prosecute suspects of crimes committed in 1971 during what is described as the Bangladesh Liberation War.
Human Rights Watch has criticised the Tribunal for issues of fairness and transparency and alleged harassment of lawyers representing the accused persons and their witnesses.
Given the absolute severity of the penalty, even if one approves of capital punishment, it has no place where there is the merest suggestion of any irregularity in proceedings or the procedures leading up to the proceedings.
In Pakistan, a moratorium on executions was in place since 2008, but following a cowardly attack on the Army Public School in December 2014 by terrorists with extensive loss of life (mostly children) the moratorium was lifted. The lifting of the moratorium was connected with the decision to execute terrorists, with the establishment of military courts to expedite such matters. Since lifting the moratorium, various organisations have estimated well over 300 executions have taken place in that country.
I certainly accept that the gutless murdering of children would give rise to calls for the most severe penalty. But the use has gone beyond that particular instance. Establishing a tribunal to deal with these matters expeditiously causes great alarm. If the death penalty is an available punishment why oust the existing Courts with their legal oversight to ensure fairness and propriety?
I note with great concern that our colleagues in Malaysia are urging the Singaporean Government to grant clemency for convicted murderer Kho Jabing, a Malaysian from Sarawak. It is reported that he was charged with murder in connexion with a robbery. Initially sentenced to hang in 2010, he appealed (twice) and in 2013 a sentence of life imprisonment and 24 strokes of the cane was imposed. This sentence was then appealed by the prosecution. Singapore Court of Appeal imposed the death penalty on a 3/2 split decision in January 2015.
An appeal from that decision was dismissed, with the Appeal Court reported as finding:
“Finality is an integral part of justice. It would be impossible to have a functioning legal system if all legal decisions were subject to constant and unceasing challenge”
The use of the term ‘finality’ in relation to death penalty cases demonstrates the very need to allow for Judicial review, especially if the sentencing court was not unanimous.
In keeping with our clear policy, we join the call for clemency in Kho Jabing’s case.
The CLA acknowledges the sovereignty of all Governments. One can certainly have a sense of the most severe justice in response to gutless acts of terrorism where innocent victims are targeted. However the CLA is committed to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.
If the death penalty is an available sentence in legal systems where there can be any concern as to the validity or propriety of proceedings, then those Commonwealth countries must be subject to urgent scrutiny by the Commonwealth of Nations. The Commonwealth has an obligation for the promotion of the administration of justice and the protection of human rights. These are in accordance with the principles enshrined in the Harare Declaration of 1991, the Latimer House Principles of the Commonwealth 1998 and the Commonwealth Charter of 2013.