By Adehlia Ebert
Approximately 70 per cent of countries have abolished the death penalty, either legally or in practice. Capital punishment has been largely eliminated from Europe, Africa and South America (Johnson 2010). One of the few exceptions to this global abolitionist trend is the ASEAN region, where many states retain, and regularly implement, the death penalty. This has not been without condemnation from the international community. Australia in particular has been a vocal supporter of abolition in the region. Australia’s ability to affect change is significantly compromised, however, by its government’s need to balance competing policy concerns.
Itself an abolitionist country, Australia has prioritised the elimination of capital punishment overseas in its diplomatic acitivies, with policies including the Department of Foreign Affairs and Trade (DFAT)’s Strategy for Abolition of the Death Penalty. Australia’s abolitionist agenda received heightened public attention in the wake of 2015, when two Australian citizens, Andrew Chan and Myuran Sukumaran, were executed by firing squad in Indonesia for drug offences. The event was the subject of extensive media coverage in Australia, as well as condemnation from government officials alongside a renewed commitment to abolition.
Australia’s abolitionist rhetoric rings somewhat hollow, however, when one considers that it was the Australian Federal Police (AFP) that provided Indonesia with the information necessary to arrest, and ultimately convict, Chan and Sukumaran (Finlay 2011). This event offers a vignette into the challenges faced by Australia as a state seeking both to encourage death penalty abolition and maintain essential diplomatic and security relations with its neighbours.
Criticisms of the death penalty
It is not without reason that capital punishment has seen a global decline. The practice has attracted widespread criticism for its ethical and practical flaws.
From a moral standpoint, the inalienable right to life, a right given significant weight by such covenants as the Universal Declaration of Human Rights, can be considered incompatible with the practice of state-sanctioned killing. Admittedly, this argument may not be universally convincing given the particularly heinous nature of some crimes. Some individuals who have committed seriously reprehensible crimes, such as serial rape and murder, may arguably be deserving of the death sentence. However, it is near impossible to create a criminal justice system that accurately condemns those guilty individuals without occasionally exhibiting mistakes of fact, law and bias, and thus inaccurately condemning innocents.
ASEAN states are no exception to this problem. In Indonesia, for example, there are many documented instances of judicial mistake and corruption. In 2015, Rodrigo Gularte, a person with diagnosed mental illness, was executed despite this being contrary to Indonesian law. Also in 2015, Achmad Yamanie and Putu Suika, judges involved in the cases if Chan and Sukumaran, were dismissed for corruption and manipulation of court proceedings. In Singapore, meanwhile, where the death penalty is mandatory for certain crimes, accused individuals are regularly denied the right to remain silent. (Choudhury 2015).
Capital punishment can also be criticised from a practical standpoint. Although retentionist countries often champion the death penalty’s deterrent effect on crime, there is no evidence to actually support this claim, as can be illustrated by statistics from Singapore and Hong Kong. While the two city-states are similar in many respects, Singapore retains the death penalty whilst Hong Kong does not. During the 1990s Singapore had a relatively large number of executions. Despite this, the homicide rates of both countries during that decade were almost identical (Johnson 2010). Alone, this comparative example is not sufficient to disprove any causal link between capital punishment and crime deterrence. However, this study forms part of a larger body of research to that effect and thus, when considered in context, dispels the widely-held assumption that the threat of execution deters individuals from committing serious crimes.
Actors in the Asia-Pacific region
There are a number of actors that may contribute, either positively or negatively, to the process of death penalty abolition. Within the highly pluralistic Asia-Pacific, these actors are almost infinite in number, however this article will consider just four: Australia, ASEAN, its member states, and people in the region.
Australia has adopted a strong stance against capital punishment. An integral component of DFAT’s Strategy for Abolition of the Death Penalty is that Australian diplomats actively advocate for abolition overseas, either through dialogue with government officials or by supporting local NGOs. However, as illustrated by continued AFP assistance on crimes carrying the death penalty, Australia’s ability to affect significant change is compromised by the country’s need to balance numerous, often competing, public policy concerns.
The AFP regularly assists in the prosecution of transnational crime, either through direct police-to-police cooperation or the sharing of information. In fact, there are international treaties explicitly requiring them to do so, such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the United Nations Convention against Transnational Organised Crime (Finlay 2011). Police cooperation can be seen as an essential practice in an age when crime is globalised. Cooperation is often necessary to prosecute crime that extends beyond borders and has been imperative in achievements such as the closure of a Jakarta amphetamine factory in 2005 (Finlay 2011). However, the fact remains that transnational crime in the Asia-Pacific will frequently involve jurisdictions where the death penalty is a legitimate sanction for drug, terror and homicide offences.
By cooperating in these jurisdictions, the AFP is actively supporting, and thus legitimising, capital punishment, however, to not cooperate on capital crimes would be difficult to justify. It would be nonsensical for the AFP to assist in the prosecution of lesser crimes, whilst refusing to assist on graver matters that carry death as a sentence. Moreover, police cooperation has mutual benefits for both Australia and the states it assists. Australia not only gives information and assistance, but also receives it, often from retentionist states such as the US, Indonesia and Vietnam. To refuse to cooperate would be to jeopardise these benefits.
Finally, non-cooperation would be contrary to Australia’s international obligations under the aforementioned treaties. Herein lies the challenges for Australia – cooperation inhibits the country’s abolitionist agenda yet is necessitated by the globalised nature of contemporary crime. These conflicting agendas present a serious challenge to Australia’s ability to use coercive diplomacy effectively in its efforts to encourage the abolition of state-sanctioned killing.
As a regional organisation of states, with an ostensible commitment to human rights, ASEAN may appear a logical instrument of abolition. It has already led coordinated efforts to address regional issues, such as climate change, and thus in theory could be an effective forum for multilateral dialogue on the death penalty. Indeed, other regional organisations, such as the European Union (EU), have played a significant role in the abolition of capital punishment (Johnson 2010). However, the success of the EU is by no means a guarantee of the success of ASEAN, given the vast differences between the two organisations. There are certain characteristics of ASEAN that inhibit its ability, and its will, to catalyse abolition.
ASEAN lacks a unified identity and thus a set of shared normative principles (Baba 2016). The region’s diversity, both inter and intra-state, presents an impediment to a united voice on human rights principles, as does ASEAN’s commitment to state sovereignty. The few examples of a truly unified ASEAN identity have, if anything, been counterproductive to the abolition of capital punishment. The first is the ASEAN-wide commitment to non-interference, which is enshrined in the organisation’s constitutional documents. This requires ASEAN to respect domestic policy choices, and thus inhibits the organisation’s ability to enforce policy change. The second is the sense of regional identity sometimes demonstrated by ASEAN in opposition to the West. This is more an identification of what ASEAN is not, rather than what ASEAN is, and is often employed as a politically motivated tactic to counter US dominance (Baba 2016). Similarly, this identity can be employed as a discursive tool to reject certain human rights as exclusively Western values.
Given the challenges of state sovereignty and anti-West rhetoric, it is not ASEAN but rather its member states that determine the status of capital punishment. It would thus require significant domestic change for a regional commitment to abolition.
ASEAN Member States
ASEAN member states remain the most influential actors over death penalty retention in the region. Observed trends suggest that it is the top leaders of those states, rather than prevailing public opinion, that ultimately determine their country’s practice of the punishment (Johnson 2010).
The justification given by retentionist leaders relies primarily on the supposed, yet unproven, deterrent value of capital punishment. Singapore and the Phillipines, for example, espouse the death penalty as a key ‘Asian Value’. Given that there is no factual basis to support capital punishment as an inherent Asian Value (Baba 2016), this claim can be interpreted as a political tactic to normatively legitimise the practice.
Despite holding final sway over capital punishment practice, individual states do not always operate in a vacuum, but rather may be influenced by external factors when implementing or rejecting the death penalty. In Indonesia, for example, the Supreme Court rejected the death penalty by citing the Universal Declaration of Human Rights. However, the same court later upheld the death penalty by citing the International Covenant on Civil and Political Rights (Butt 2014). Admittedly, these examples may suggest that international law has been relied upon arbitrarily to either support or reject the conclusions sought by different Judges. It could be argued, however, that these examples demonstrate the influence exerted by international law in Indonesia, albeit an influence used both to support and reject capital punishment.
Irregardless of which of these two conclusions is more accurate, the most influential actor over death penalty retention remains ASEAN member states. As discussed, neither Australia nor ASEAN has the geopolitical power to affect significant change domestically – the solution may be the ASEAN people.
The people of the region
The research on the links between popular opinion and capital punishment is conflicted. Some studies suggest that public opinion is the key determinant of abolition (Brown et. al. 2010), whilst others suggest the exact opposite (Johnson 2010). Consequently, it is not wholly accurate to state that a change in public opinion will translate into legislative change.
At least in theory, however, a widespread shift in public values regarding capital punishment should bear some influence on government policy – albeit to varying extents, depending on the nature of lawmaking in individual countries. This is because, whether legitimised by popular support or performance, governments acting within pluralistic East-Asian nations must at least appear to act in the interests of their people in order to maintain legitimate authority. This theoretical argument relies on the shift in public opinion permeating large majorities of society, rather than a simple majority which, as observed, does not necessarily translate into policy change.
Achieving a widespread shift in public attitudes towards the death penalty is unlikely to be an easy or a rapid process. However, it is a process in which Australia, or more specifically Australians, can play a vital role. People to people diplomacy with a focus on the death penalty’s practical and ethical flaws could place abolition on the agenda of the ASEAN public. Australia already engages in this practice to some extent, as evidenced by DFAT’s diplomatic focus on supporting local NGOs. Organisations such as AASYP could contribute further and their focus on young people is a significant asset. Given the long-term nature of this process, youth engagement is less of a buzzword and more of a practical necessity. Moreover, ASEAN has demonstrated some commitment, at least superficially, to engaging with its young people, with examples including the ASEAN Youth in Climate Action and Disaster Resilience Day (Asia News Monitor 2018).
It is important to recognise one’s limits as well as one’s capabilities. Isolated instances of cultural diplomacy will not eradicate capital punishment, nor in fact will unisolated instances of cultural diplomacy. However, given the limitations of Australia and ASEAN at affecting significant change, the people may be the most important actors in the eventual abolition of state-sanctioned killing.
Asia News Monitor 2018, ‘ASEAN: ASEAN Declaration on the Adoption of the ASEAN Youth in Climate Action and Disaster Resilience Day’, Asia News Monitor, 19 November.
Baba, G 2016, ‘Regional commonalities and regional identities: forging a normative understanding of Southeast Asian identity’, Journal of Current Southeast Asian Affairs, vol. 35, no. 1, pp. 91-122.
Brown, B, Benedict, WR, Buckler, K 2010, ‘Support for the Death Penalty in Developing Democracies: A Binational Comparative Case Study’, International Criminal Justice Review, vol. 20, no. 4, pp. 398-416.
Butt, S 2014, ‘Asia-Pacific: Judicial Responses to the Death Penalty in Indonesia’, Alternative Law Journal, vol. 39, no. 2, pp. 134-135.
Choudhury, F 2015, ‘Due process and the death penalty in the Asia-Pacific region’, Australian International Law Journal, vol. 22, pp. 15-47.
Finlay, L 2011, ‘Exporting the death penalty? Reconciling international police cooperation and the abolition of the death penalty in Australia’, Sydney Law Review, vol. 33, no. 1, pp. 95-118.
Johnson, D 2010, ‘Asia’s Declining Death Penalty’, The Journal of Asian Studies, vol. 69, no. 2, pp. 337-346.