Supporters of Australians on death row in Indonesia Andrew Chan and Myuran Sukumaran light candles during a vigil at Martin Place in Sydney on April 28, 2015. The two were executed by firing squad hours later. (AFP Photo/Saeed Khan)

The Unbearable Irreversibility of the Death Penalty

BY :ISYANA ARTHARINI

JUNE 15, 2015

Kuala Lumpur. Chen Chin-Hsien walked up on stage and introduced himself before the audience: a civil court judge in Taiwan for the past four and a half years, and before that serving on the bench in juvenile and criminal courts.

“Twenty-one years ago,” he declared, “I believed firmly in retribution and the death penalty.”

But everything changed when, during a public discussion on judicial issues several years ago, a young woman asked him, “What if some day one of the defendants you have sentenced to death is found to be wrongfully convicted? What would you do?”

It was the first time anyone had brought up the possibility to him, Chen went on in his speech in Kuala Lumpur last week.

“I looked at her for a long time and I couldn’t answer her. Eventually I said, ‘I don’t really know. Maybe quit my job.’”

It was a possibility that, mercifully, Chen never had to face. One of the rare cases he heard in which the death penalty was prescribed involved a mentally ill young man on trial for slitting a child’s throat in an arcade.

Given the defendant’s mental condition, the panel of three judges, Chen among them, chose not to hand down the death penalty — and immediately drew condemnation from the press and society.

“This was no surprise. But the surprising thing was that we were also attacked so hard by our fellow judges. No judge supported our verdict. There are not many judges in Taiwan brave enough to resist such pressure,” Chen said.

He acknowledged the long tradition of martial justice in Chinese society, but argued that in the modern age, the death penalty is primitive and cruel.

Tide is turning

Chen was speaking at a congress hosted last week by the organization Together Against the Death Penalty/Ensemble Contre la Peine de Mort (ECPM) and the Anti-Death Penalty Asian Network (ADPAN). The ECPM has organized similar congresses on the abolition of the death penalty, but the Kuala Lumpur event was the first to be held in Asia, and served to highlight the use of the death penalty in the region, mostly for drug-related offenses.

Indonesia was, until 2012, among a growing number of countries exercising a de factor moratorium on the use of the death penalty. All that changed this year with the execution of 14 people, 12 of them foreigners, for drug-related offenses, drawing widespread criticism and riling diplomatic ties.

But the more than 300 delegates at the ECPM congress also heard about how the problem was not limited just to Indonesia: Singapore maintains a mandatory death sentence for drug-trafficking.

Malaysia also prescribes death for trafficking, but the tide is turning in that country, says Steven Thiru, the president of the Malaysian Bar Association.

The association has repeatedly passed resolutions at its annual meetings calling for the abolition of the death penalty, and while the government has never acquiesced, the public is increasingly in support of ending capital punishment. An opinion poll conducted in 2013 by the bar association and the Death Penalty Project, a leading human rights organization based in the Britain, found that the majority of the Malaysian public surveyed did not support the mandatory death penalty for drug trafficking, murder or firearm offenses.

Thiru said there were no more barriers to abolishing the death penalty in the country. “It is up to the government and the legislators to drive the conversation forward. If they lead, the public will follow,” he said.

Debunking the myth

In the wider context, the position maintained by law enforcement in Indonesia, Singapore and Malaysia is increasingly a marginal one. Six Asian countries — Nepal, Bhutan, Philippines, Cambodia, Timor Leste and Mongolia — have already abolished the death penalty from their statutes.

Brunei, Myanmar and South Korea are abolitionists in practice, meaning they still retain the death penalty in their legislation but have not carried out any executions for some time.

Only 25 countries in Southeast Asia, the Pacific islands and the Middle East routinely carry out executions, said Raphaël Chenuil Hazan, the executive director of the ECPM.

“This trend debunks the myth that abolishing the death sentence is a Western value,” Hazan said.

Britain-based Harm Reduction International goes deeper in its report “The Death Penalty for Drug Offences: Global Overview 2012.”

The report identifies 49 countries in the Asia and MENA (Middle East and North Africa) region as “retentionist,” or having the death penalty on their statutes; of these, only 13 carry out executions, and only five do so regularly.

Of the 92 retentionist countries and territories worldwide, a third prescribe the death penalty for drug-related offenses; only one in seven actively execute drug offenders, and only one in 18 do so with any regularity or in any great number.

That means that countries that do carry out death sentences are on the extreme fringe, a minority on the global stage.

Avoiding the real issues

Rick Lines, the executive director of HRI, said the decision to carry out death sentences was not a cultural, social or regional trend, but instead a mere political choice, which is what he saw happen in Indonesia, which went from two executions in the last five years to 13 in the last five months.

The fact that most of those executed were foreigners played to the narrative of drugs as a foreign threat, which Lines said was merely a way for the authorities to avoid dealing with developing health or harm reduction policies and therapies to treat people living with drug abuse domestically.

Julian McMahon, a lawyer for the late Andrew Chan and Myuran Sukumaran, the two Australians executed in Indonesia on April 29, refuted the Indonesian government’s insistence that the death penalty served as an effective deterrent against the drug trade.

“The drug kingpins move drugs by the tons. It’s laughable to think that by executing these two boys, it will deter consumption or distribution of drugs in Indonesia. Nobody is talking about the distribution or the making of drugs already happening inside Indonesia,” he said.

McMahon, who usually avoids giving out personal stories to the media because they tend to divert attention from the actual legal work being done by his office, made a rare exception at the congress in Kuala Lumpur.

“When I first met those boys in 2006, they were ordinary punk criminals,” he said.

“But they became poster boys for what the prison reform system could be. They turned the prison around into a safe learning space.”

He also shared his story of spending time with Mary Jane Veloso, a Filipina drug mule who was also slated to be executed with the others, and her two sons, all of them believing that it was the end.

“She held her two boys, thinking it would be for the last time. She sang to them, the boys sang to me, I gave them chocolate,” McMahon said.

When the shots rang out on the Central Java prison island of Nusakambangan, the grief of the Veloso family was immense. They were convinced she had been shot, only to be notified later that she had been granted a last-minute reprieve.

“And to think she’s going to face all of this again is just inhumane,” McMahon said.

He said what upset him the most about the Indonesian government’s approach to the issue was that there was no pretense whatsoever that President Joko Widodo had read the pleas for clemency: It was simply decided that 64 people must die, even though many of them, Chan and Sukumaran among them, still had appeals pending.

The Australians’ appeal hearing was scheduled for May 12; they were shot dead less than two weeks before their court date.

“There is no country in the world that deployed more energy, money and diplomats to get their citizens out of death row than Indonesia. And they do so in the most praiseworthy way,” McMahon said.

“So imagine my disappointment when all my legal efforts were met with the simple argument of trying to interfere with the sovereignty of another country.”

For the lawyer, the bitter experience of the Chan and Sukumaran case is the exact scenario that Chen, the Taiwanese judge, has always dreaded.

“Criminal judgment is not just about retribution, but also about a settlement between society and the defendant. In the rehabilitation process, society can embrace this defendant, or the defendant can embrace society again,” Chen said.

“But death is the ultimate retribution that leaves no chance for this settlement process to happen.”

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