| by Dr. Ruwantissa Abeyratne
( November 27, 2012, Montreal, Sri Lanka
Guardian) On 21st November Ajmal Kasab,
the only surviving gunman from a 2008 Mumbai terrorist attack, in which
Pakistani infiltrators killed at least 166 people during a prolonged and
traumatizing rampage in the city, was hanged
in Pune, India. There is no room
for doubt that by any standards of terrorism, senseless massacre and
asymmetrical human reasoning, this
assault on ordinary residents and tourists, at a busy train station, a Jewish
centre and most notably a prominent hotel, was filled with vicious hatred and
psychopathic indifference.
The latest issue of the Economist
states: “Curiously, too, this week has seen a spate of executions in South
Asia. On November 15th Pakistan brought an end to its own four-year unofficial
moratorium on the death penalty, by hanging a soldier convicted of murder. And
on November 19th Afghanistan’s president, Hamid Karzai, agreed to let the
execution of 16 convicts on death row. Thus Mr Karzai, too, has ended a
self-imposed moratorium on the use of the death penalty in Afghanistan”.
Sri Lanka has a moratorium on the death
penalty, although recently the vacancy for a hangman was advertised there. There was a recent news item that Sri Lanka
might just apply the death penalty to pedophilia and drug related offences.
2012 has been an year in which we have
searched for our ethical values, whether they concentrated on Syria or Israel
and the Gaza. . There was a certain
moral immediacy in our introspection, It
was almost as though we had reached a beginning-of-the-century revolution in
conscience and consciousness and were asking ourselves “is it right”? in
various contexts. We were faced with the
stark reality that the vast technological power we had evolved over the years
could not only do good, but also bring about terrible harm both to human life
and to the environment. With the
stunning scientific knowledge and moral
commitment we had as global citizens, we were able to argue with ourselves on
the justification of retaliation.
One of the most serious ethical and
legal issues that has confronted the world
over the past few years in the
face of the proliferation of crimes against humanity which have been
perpetrated - - is whether the legislatures of the world should give serious
thought to reviving the death penalty in regard to certain offences. At the core of the issue is the deep rooted
moral dilemma which has been brought to bear by such international initiatives
as the recent signing by 19 States of the Treaty on Human Cloning. Does such action by the world community imply
that since we cannot tamper with the human body or determine its physical
attributes, it follows that we cannot decide upon the extinction of another
human’s life?
The proponents in favour of
reintroducing the death penalty would of course
argue that it has a uniquely potent deterrent effect on potentially
violent offenders for whom the threat of imprisonment is not a sufficient
restraint. Other arguments that have
been adduced by jurisdictions of the world which have introduced the death
penalty as a sanction against crime are: that death is the only penalty which
adequately reflects the gravity of the offence of murder and treason; and that
execution is the only way of ensuring that a murderer or traitor does not
repeat his crimes. The more practical
proponent has also argued that society should not pay money for the sustenance
of a criminal for long periods of time in jail, and that, in any event, a swift
execution of the criminal is more merciful than a prolonged incarceration.
Those against the imposition of the
death penalty, on the other hand, argue that there is no proof or evidence that
the death penalty is a more potent deterrent than life imprisonment and that
the death penalty could be used as a discriminatory tool against the poor and
the underprivileged. They also bring
forward the rather compelling arguments that there is a grave risk that an
innocent person may be executed and that society would not be given an
opportunity to rehabilitate its offenders. Above all, they argue that hatred
and recrimination does not beget hatred and recrimination and that a tolerant
and just society should not stoop to the level of the criminal. Criminologists have not so far solved the
question convincingly and, therefore, it behoves a society concerned to solve
the problem by its own efforts.
Some States in the United States have
enacted legislation making the death penalty mandatory in the instance of
murder, on the ground that there would be no discretion vested in the courts
with regard to the application of the death penalty if the statute concerned so
stipulated. Others have imposed the
death penalty in special circumstances where it could be imposed only after a
special hearing, at which issues pertaining to mitigation of sentence and aggravation
(or provocation)of the offender were given special consideration. This dichotomy was examined in 1976 by the
United States Supreme Court which held
that laws making the application of the death penalty automatic and ipso facto
the only penalty for the commission of a murder were unconstitutional and
therefore void ab initio. The Court also
decided that laws which provided a framework for the exercise of discretion in
a structured manner were constitutional.
About two-thirds of the United States now have the death penalty as the
penal sanction for murder, and have structured the sentence in accordance with
the decision of the Supreme Court.
In Europe, most countries have abolished
the death penalty as a sentence for murder.
Belgium has retained the death penalty in its statute books but has
never so far carried it out in practice.
Africa, on the other hand, has retained
the death penalty in many countries which now resort to it as the sanction for
new categories of offences as well, such as armed robbery and military
takeovers.
The Russian Republic, particularly in
the post Stalinist era as the Soviet Union, was prolific in its application of
the death penalty mostly in cases of vicious murders and grave and serious
instances of embezzlement. The Soviet
Union (as it then was) became one of the most ardent proponents of the
deterrence theory of the death penalty at the height of its application.
China is another country which applies
the death penalty for the offences of murder, rape and robbery with
violence. In 1981 the Chinese
legislature encompassed the death penalty to apply to such offences as theft,
bribery, embezzlement, molestation of women, gang fighting, drug trafficking,
pimping and teaching criminal methods.
Penal sanction in criminal law is one of
the most difficult to generalize and, indeed, impossible to justify with
empirical argumentation. Therefore, it
becomes very difficult to determine the extent to which a particular
punishment, such as the death penalty, serves to deter potential offenders from
committing a crime. This phenomenon has led some researchers to conclude that
in the area of penal sanction, “nothing works”.
Some researchers, however, believe that lenient penalties and severe
ones have an equal degree of effect on society and therefore would be equally
effective in preventing crime.
The issue of whether or not the
application of the death penalty as a penal sanction is desirable in a given
society should not be solely determined by the empirical observation of
criminologists and legal researchers. A
more mature approach is needed, which is capable of blending harmoniously the
applicable religious and ethical foundations of a society with the legal
justification for such a measure to be adopted.
Modern exigencies of developing economies and their scientific
enhancement call for societies to be prepared for the proliferation of crime
accordingly. Once the religious and
ethical considerations of such a society are determined appropriately and
clearly by the legislature, compelling legal considerations can inevitably be
addressed.
The legal dimension to the death penalty
lies essentially in the fundamental difference between the Natural Law and the
Positive Law or, in layman’s terms, the difference between what “ought to be”
and what “is”. David Hume, one of the
more convincing classical positivists argues:
“Take any action allowed to be vicious:
willful murder, for instance. Examine it
in all lights and see if you can find that matter of fact, or real existence,
which you call vice. In whichever way
you take it, you find only certain passions, motives, volitions and
thoughts. There is no other matter of
fact in the case. The vice entirely
escapes you, as long as you consider the object. You never can find it, till you turn your reflection
into your own breast and find a sentiment of disapprobation, which arises in
you, towards this action. Here is a
matter of fact; but, it is the object of feeling, not of reason.”
Positivism, which lays down the law as
is, comprises two aspects: analytical positivism and sociological
positivism. The former, founded by John
Austin, and the latter, founded by Roscoe Pound, are both steeped in one
traditional postulate - that law is the will of the sovereign. The essential weakness of these theories is
that none could effectively and convincingly explain why the sovereign commands
this and not that. Therefore, in
considering the death penalty in the context of positivist thought one could
conclude that positivism is based on the traditional Aristotleian syllogism:
If A commits a certain serious crime, he
ought to be punished with death;
A commits a certain serious crime;
therefore, he ought to be punished by
death.
Of course, logically, this flows
sensibly from an Aristotelian perspective.
The difficulty arises when one questions as to how and why the “ought”
proposition was imported. Why ought A to
be punished by death if he commits murder or treason? Who decides that? Legal positivism, which is the leading
doctrine professing the nature of the law, maintains that a realistic
understanding of law must respect a distinction between law as it in fact is
(de lege lata) and law as it would like to be or should be enacted in its ideal
form (de lege ferenda). This philosophy
incontrovertibly brings to bear a certain Dr. Jekyll and Mr. Hyde personality
in legal positivism, thus making it virtuous and wicked in different situations. The virtuous side of legal positivism, it is
claimed, can help inculcate morally desirable attitudes towards the law in both
judges and citizens. The wicked nature
of legal positivism, however, inherently makes it authoritarian, making judges
obliged to apply the law as it is on the principle “law is law”.
The authoritarian nature of legal
positivism has been criticised by Ronald Dworkin, a distinguished modern
jurist, as coercing jusges to decide cases in accordance with the rule of law
which distinguishes law as it is and law as it ought to be. The two extremes, according to Dworkin, are
dangerous in that judges could tend to be polarized one way or the other,
avoiding a middle path leading to “the best that can be”. The “best that can be” is a blending of
morality and the law, which, when applied to a sanction such as the death
penalty, will allow judges to interpret statutory crime demanding the death
penalty in its moral context.
Dworkin’s critique of authoritarian
positivism - which enforces a certain judicial obligation in hard cases which
leave judges with no flexibility to determine the best course of redress - has
been primarily aimed at the fundamental postulate of Professor Herbert
Hart. Hart maintained that every legal
concept should have a “core” of moral substance which is immutable and a
“penumbra” or outer layer of morality in which the exercise of judicial discretion may be permissible to an
extent. According to Dworkin, this
rigidity leaves judges with no room to apply the law to the best advantage of
the user, be it the State or the individual.
Dworkin’s criticism of authoritarian positivism is sweeping, in that he
effectively attacks not only Hart but also John Austin, who beleived that the
application of law should be based on a principle of utility that advocated
obedience of rules by society through the recognition of the utility of
political government, or a preference by the bulk of the community, of any
government to anarchy. Austin’s theory
therefore hinges itself on the premise that if his brand of positivism were to
apply to the application of the death penalty, it would reflect an outlook
favouring social arrangements under which a utilitarian elite controls a
society in which the majority may not itself share the beliefs of the elite.
Another school of thought accepts the
argument of Lon L. Fuller that, in the context of the death penalty, morality
should be totally extraneous to law and should be viewed separately, and
therefore should be given serious consideration
as a foundation of legislative thought.
The operative, and indeed most
compelling consideration of all is whether a society has the right to expunge
the life of a person. On the one hand,
one can accept the reasoning of Aristotle who justified the legitimacy of
executions by introducing certain metaphysical principles to the effect that an
individual person stands in relation to the community as a part to the
whole. Accordingly, if one accepts that
the good of the whole is more important than the good of a particular part (a
part is to the whole as imperfect is to perfect) then if a part is to threaten
the well-being of the whole, it is sometimes necessary to eradicate that part
in order to safeguard the common good. Thomas Aquinas, who also advocated the
death penalty, brings in the medical analogy of the necessity for a surgeon to
amputate a gangrenous limb because it could infect and destroy the whole body
if unchecked. Aquinas concludes that
similarly, political authority may have to kill someone whose continued
existence could threaten the health and well-being of the society concerned.
Of course, the inherent weakness of the
above argument lies again in the “ought” premise and whether a given society
can decree that a person’s life can be exterminated purely because he is considered
to be detrimental to the well-being of a society. The answer may lie in a certain deep seated
subjectivity that a legislature, which decides to enforce the death penalty
could specify in the law once moral,
ethical and religious tradition allows the consideration of the death penalty
in legislation. This way, the death penalty would not automatically apply, even
if introduced into the statute books of a society. One of the ways in which a detailed structure
leading to the sanction of the death penalty could be developed is by devolving
upon a group of legal ethicists and jurists the responsibility of laying down
criteria for such a sanction before the issue is debated before a democratic
parliament. As to how these criteria could be determined, I dare not
suggest.
 On 21st November Ajmal Kasab, the only surviving...){kind=link}