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Nov 05

Before the gallows

Nguyen Tuong Van is an Australian who will be hanged by Singaporean authorities on 2 December for trafficking almost 400 grams of heroin. It will be impossible for anyone in Australia to not have heard about his case, though a quick search on Google News reveals that media coverage outside this country is sparse. This is the latest in a series of Australians being caught overseas with drugs, but this is a wholly different story to the Shapelle Corby affair where what at question was the reliability of the Indonesian justice system.

In the past few weeks, desperate attempts have been made to save Nguyen’s life and the whole affair has become quite confusing in terms of what rationales people have been using to justify their respective opinions.

Most Australians believe that he doesn’t deserve to die for his crime, either because they think the death penalty has no place in a developed country, or that it is not a proportionate punishment to a crime such as drug trafficking (especially when Nguyen claims to only have trafficked in an attempt to bail his brother out from debt).

The result is the Australian public urging the Australian Government to do all it can to pressure Singapore into showing clemency and sparing Nguyen’s life. However, as Prime Minister Howard has pointed out, there is only so much diplomatic channels can do and it is unrealistic to expect the traditionally authoritarian Singaporean government to do an about-face now.

It is important that we should lobby as much as possible to save the life of this man who we do not believe should die for his crimes. However, it is wrong to resent or hold anger towards Singapore should our efforts fail and should the execution proceed. It is wrong to request trade sanctions be imposed upon Singapore, or to take recent events into consideration in the deal concerning Singapore Airline’s rights to fly the trans-Pacific route as Bruce Baird has said.

As they say, the law is the law and everyone entering Singapore knows – via the scary red words, written all in capitals, emblazoned on the immigration card saying “DEATH TO DRUG TRAFFICKERS” – the consequences of their actions. That was the law at the time when Nguyen was discovered at Changi Airport with enough heroin to make over 20,000 hits strapped to his back.

Despite the strictness of the Singaporean State, and various questionable legal instruments like the Internal Securities Act, academics have reported that Singapore has performed relatively well when it comes to adhering to the cornerstone concept of the Rule of Law. To all our appeals for clemency, Singapore has rightly said that if they were to go easy on Nguyen, that would breach that fundamental concept – why should Nguyen be treated differently from a local, or any other national? What would it say about their justice system then? After all, it’s not as though they enjoy sending people to the gallows, nor do it with haste and without due process. It is also a matter of respecting the laws of the country one visits. It is a pretty arrogant thing to expect foreign visitors to our country to follow our laws, but yet request that the same not happen for our citizens who travel abroad. We can all hope for clemency, but an illusory hope it is.

Of course, the major sticking point is that a “so-called civilised nation” like Singapore shouldn’t be using a death penalty in the first place. There is a great deal of literature in international jurisprudence which has more or less debunked the validity of using capital punishment. One of the most common views is that to take someone’s life is a brutal response and our society is “above that”. However, there are clearly more arguments to the point than this. First, there is the issue of the finality of killing someone in a system which is periodically prone to miscarriages of justice (for example in the US, a disturbing proportion of people on death row have subsequently been exonerated following the production of additional evidence, such as DNA evidence). Secondly, empirical studies have shown that the deterrent effect of capital punishment (especially in countries where executions are not carried out in public) is no more effective than a maximum punishment of life imprisonment without possibility of parole. Thirdly, there is a theory called the brutalisation theory that states that executing criminals actually promotes violent crimes because:

First, potential killers are stimulated during the period following an execution … Secondly, the drama accompanying executions arguably incites some to seek notoriety. Finally, some people already predisposed toward violence seek this fate as a substitute to suicide … Data analyzing the number of homicides committed ten weeks before and ten weeks after an execution reveal a significant increase in the number of overall homicides.1

Fourthly, the argument that capital punishment in murder cases satisfies the requirement for proportionality in punishment is invalid because it is rare in our system to “seek an eye for an eye” – for instance, we do not “rape rapists, assault assailants, or burgle the home of burglars”.2 Fifthly, as a pragmatic matter, the cost of a case culminating in capital punishment is said to exceed that of one where life imprisonment is levied. Sixthly, there are worrying signs about how capital punishment is unevenly distributed in racial terms. In the US, jurors with anti-capital punishment views are routinely challenged (that is, removed from the jury panel). A black defendant is also more likely to be sentenced to death when the victim is white. Finally, it goes against the principle of everyone having a right to life.

Of course, few of the above reasons are directly applicable to the case at hand, but the imposition of a death penalty on a drug offence – one that is “less” than murder – seeks to strengthen the case against such a penalty. The body of legal research on the matter is hugely in favour of abolition of capital punishment.

The problem is, however, as much as capital punishment is regarded as an outmoded form of punishment, it is still a valid law in that it was passed validly in a democratic system (we’ll leave international law issues aside for the moment). Australians are within their rights to lobby for the abolition of the death penalty, though it is a stretch to hope that such an abolition, if implemented at all, will be implemented retrospectively by the Singapore legislature.

What’s troubling to me though is this: where was the outrage before an Australian face appeared before the gallows? Why do we not stand up for the “basic human rights” of all prisoners currently on death row in Singapore? They are not merely basic Australian rights, but basic human ones.

People complain that this latest incident is more evidence that Singapore is too strict and authoritarian – repressive, even. But why then is the media devoid of comments from readers about how the United States should also abolish the death penalty? After all, of all the nations to retain the death penalty, the US stands with some unfamiliar company – countries such as Russia, China, Japan, Nigeria, India, Indonesia and Pakistan – countries which are not known for their sterling human rights records (and neither is the US, in recent times). Granted, the US does not execute for drug offences – but remember, we are not talking about letting the punishment fit the crime here – we are talking about how the death penalty is a breach of fundamental human rights.

It will be interesting to see if the lobbying for clemency for death row prisoners continues if Nguyen is executed. To some, this may be shutting the barn door after the horse has bolted, but why should it matter to us if it is an Australian or a Singaporean staring at the hangman’s noose? If capital punishment goes against fundamental human rights, why should nationality be the basis for such strong efforts as displayed by the Australian people? No wonder the Singaporeans accuse us of having double standards.

One view that holds more weight might be arguing that capital punishment is a disproportionate punishment to levy on a drug offence. Especially concerning an offence in which the mandatory minimum sentence is to end the life of the convicted – just look at the Weldon Angelos case in the US, where a drug dealer was sentenced to 55 years in gaol for three counts of possession of a firearm (as a result, the judge imposed only one day of imprisonment for the multiple counts of drug-related offences). Mandatory minimums do not allow for the consideration of possible mitigating factors – such as, it is claimed, that he entered a plea of guilty immediately (though it is hard to see how he could plead otherwise, being caught red-handed with the stuff strapped to his back), that he co-operated with police, and that he was only doing it for his brother. However, again this falls foul of the same problems as above – the Singapore government is within its rights to levy such a punishment as distasteful as it is to us.

I think that the only avenue of appeal that has a reasonable amount of legal validity behind it – besides trying to pull on the heart strings of the Singaporean government and getting a pardon – is international law. However, this is difficult because a ruling by the International Court of Justice is only really binding if both parties voluntarily submit to its jurisdiction (just look at how the US refuses to recognise the International Criminal Court where its nationals are concerned). And even then, Singapore must be found to have breached some international treaty or customary international law by having a death penalty in order for the court to order favourably for Nguyen.

Nonetheless, a stay of execution would offer comfort of some kind if Singapore were to agree to have the ICJ hear the case. Strangely, a decision adverse to Singapore also offers it a valid reason to repeal its law without being able to be criticised for having double standards – though this is at the expense of having acknowledged it violated international law in the first place. Further, only States can utilise the ICJ and a decision by the Australian government to pursue this in The Hague is no doubt hampered by diplomatic considerations given the low probability of success.

Sadly, things do not look up for Nguyen. But one can only hope that, should he die, people will continue in their efforts to get governments around the world to abolish capital punishment as an unacceptable form of punishment in today’s international community.

1. John Truskett, “The Death Penalty, International Law and Human Rights” (2004) 11 Tulsa Journal of Comparative and International Law 557, 588.
2. Claire Finkelstein, “An A Priori Argument Against the Death Penalty” (2002) 32.