Sunday, March 27, 2011

The Death Penalty

St Nicholas of Myra (a.k.a. Santa Claus) saves an innocent man from execution
On March 30 three Filipinos will be executed in China for drug trafficking offences for which they have been convicted under Chinese law. They were convicted of trafficking more than 50 gms of heroin into China. The Noynoy Aquino government has done the little too late effort of pleading clemency and sent the Vice President Jojo Binay to speak with the Chinese. However he was reminded that under Chinese law, there is no one who can grant executive clemency not even the President of China. The authority to issue death warrants or take them lies only with China's Supreme Court. In most countries, the Head of State has the power to pardon or commute sentences. This power derives from the Divine Right of Kings. While the whole idea of a King being above the law has been largely abandoned, the power to pardon, commute or reprieve penalties is the last remaining vestige of this right in a republic and the President has this sole power which cannot be reviewed.

Mr Binay was able to get a reprieve for their execution but this did not do much good as in other countries, a reprieve is granted so that convicts can mount an appeal, a review or plead for mercy. In the case of the 3 Filipinos, these avenues were largely closed even if the continue to maintain their innocence. The government has no choice but to accept the end game to the sorrow of the families of the doomed men and women.

This is the reality of the death penalty. Justice may have been done if the truly guilty are executed, but if the innocent are executed, then Justice has been terribly wronged. This is the reason why throughout the ages, the list of crimes that prescribe the death penalty has been whittled away and in today's world many countries have abolished it. The Roman Catholic Church is the biggest entity that has long campaigned for the abolition of the death penalty. Several popes have said that there are very little reasons to use it and in many countries these are non-existent. The Church looks on the positive side of rehabilitating convicts. However it must be said that the Church has not "outlawed" the death penalty since under natural law there is always a possible reason to use it. The Church cannot abrogate the natural law. The provision for the death penalty lies in the principle of self-defence.

 In Western popular tradition, if you survive your execution (most likely due to a bungling executioner) then you are automatically pardoned! The medievals believed that survival is a miracle and that the convicted was in truth innocent. Of course with the development of more technically savvy ways of killing people, the chance of living after your execution is almost nil. There has been a trend to make death more humane and that is the idea for the lethal injection, but still execution kills. In the past methods of execution included aside from the usual decapitation, "trampling by elephant" and being "eaten by wild beasts"!

Societies throughout the ages have debated the use of the death penalty and their approach to it followed changing ideas of how people are treated and generally followed acceptance of democratic values. It was only after people found slavery abhorrent that the move to abolish the death penalty has snowballed. Today a majority of countries have abolished the death penalty. Ninety five countries have abolished it completely, 8 have abolished it save for a few heinous crimes, 49 have it still in the books but have never used it and 41 still have it. Russia is the biggest nation that still has the penalty in the books but has never used it after communism collapsed. Ironically it is China which is the first country in history to have abolished the death penalty in 747 AD by order of the  Tang Emperor. It was unfortunately reinstated 12 years later due to a rebellion. Japan followed in 818 AD under the orders of Emperor Saga until 1156 AD when the Shogunate brought it back. Today China and Japan still have the death penalty.


The move to abolish the death penalty followed global acceptance of democratic values and human rights. Most democracies have abolished the death penalty with the notable exception of the United States of America. The USA is founded on the idea that all men are equal, bans under its constitution "inhumane punishment" but still has the penalty for aggravated murder and rarely for felony murder. Some states of the USA have abolished the death penalty but they are in a minority. However there is a trend for a moratorium on executions. China has executed 6000 or more convicts mostly for aggravated murder and drug trafficking. Chinese law automatically mandates a death sentence on anyone caught trafficking more than 50 grams of heroin into the country. The Chinese territories of Hong Kong and Macau do not have the death penalty. Taiwan still has it. Other countries who have it in the books have began to impose the penalty more sparingly, especially in Asia.

One major reason why the death penalty is finding less and less favour with societies worldwide that it has been historically used for political and religious oppression. Other reasons include the fact that members of minorities are likely to more convicted with the death penalty than members of the majority. However with the surge of heinous crimes some of which are drug related, many people have raised proposals to reimpose the penalty for these crimes, even in societies that have long abolished the penalty.

One of the morally vexing questions asked is this "If we have Adolf Hitler in our midst, we arrested him and he was convicted of his crimes in a court of law, would you opt that he be jailed for life?" Israel came close to this conundrum in the Eichmann trial. Israel has executed only Adolf Eichmann under proceedings of a civilian court. It has never executed anyone else since then.

The answer to the question is whether we see the need to impose the death penalty once more (in countries which have abolished it or in countries that still have it).

In the Philippines we have a knee jerk reaction about the death penalty, especially when a heinous crime has been committed such as aggravated murder or drug trafficking. This is particularly true of politicians. But in a society which has accepted the everyday fact that one can be killed for alleged crimes without a judicial warrant, then all this talk of re-imposition of the death penalty is hard to swallow. We have to put an end to extrajudicial murder first and let Justice rule over the land.

I am against the death penalty for one reason. Death is too kind for these kinds of criminals. We will all meet the Just God via death. Let them rot in jail!

As for the doomed OFWs, there are more on death row in countries which are not much different from China!  Why do they have to leave their country to meet this fate? Again this is proof positive that the Filipino poor are the ones most likely to be meted out the death penalty if convicted for crimes.

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