Retentionists have been arguing for years that capital penalty is necessary in order to prevent a murderer from committing crimes in the future. They argue that the criminal justice systems impose punishments for at least three important reasons, namely, just punishment, deterrence and incapacitation and it is the only effective means to that end. “Let the punishment fit the crime” is a generally accepted and sound precept of criminal justice system. Retentionists argue that capital punishment is apt for a crime as grave as a cold-blooded murder.
Nepal is the only country in the region to accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of death penalty.
Retentionists also try to justify death penalty because of its deterrent effect, which saves the lives of innocent people by discouraging potential murderers. Logic supports the conclusion that capital punishment is the most effective deterrent for premeditated murders. Similarly, incapacitation of murderers from killing again is the other logic put forward by retentionists. This incapacitation effect, for them, is particularly important because of the continuing risk posed by those who have already taken a human life.
Abolitionists, on the other hand, argue that capital penalty is unacceptable as it cannot be a uniquely effective deterrent against murderers. It is worthy to quote Lord Kennet who in a speech in the House of Lords on November 9, 1961 had summed up the whole theory of what ought to be done to a convicted murderer in five verbs: Prevent, reform, research, deter and avenge. He argued that death penalty cannot be justified as a means of preventing a murderer from committing a murder again saying nobody, besides the insane, chooses to be a murderer. In addition, abolitionists argue death penalty only serves to satisfy the desire for vengeance.
Capital punishment is definitely not new to the world. It had been in practice in almost every part of the world in the past but in the last few decades many countries have abolished it. Record shows that out of about 200 countries in the world, there are at least 60 countries that currently use capital punishment both in law and practice while there are another 46 countries whose laws still permit capital punishment but who have not used it in recent years. The remaining 94 countries have abolished capital penalty by law. Australia, Brazil, Canada, China, France, Germany, India, Iran, Iraq, Italy, Japan, Malaysia, New Zealand, Philippines, Russia, Singapore, United Kingdom and United States are some of the major countries which still practice capital punishment.
In the SAARC region, Afghanistan, Bangladesh, India, Pakistan, Sri Lanka and Maldives have maintained capital penalty in law. Afghanistan last resorted to capital punishment in November 2008, Bangladesh in February this year, India in 2004 and Pakistan in 2008.
Bhutan abolished capital punishment in 2004. Sri Lanka, despite having the provision for death penalty, has not used it since 1976. Maldives has also not used it since 1952. Among the SAARC countries, Nepal’s position, at least in principle, is skewed in favor of abolitionists. The 1990 constitution not only abolished capital punishment but it is also the only country in the region to accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of death penalty.
As an effort of international communities to abolish capital punishment, the Second Optional Protocol was adopted on Dec 15, 1989. It entered into force on July 11, 1991.
The Protocol has been acceded by Nepal on March 4, 1998 without any reservation. It has also adopted legal mechanisms for the implementation of this Protocol. So, we cannot argue for death penalty any more in this land. Our problem does not lie in the enactment of new laws or adoption of capital punishment in the new constitution; it rather lies in the effective enforcement of laws and sincere commitments to respect the rule of law. Today, crimes and politics have become synonymous. Police are not free to discharge their duties due to pressure and intervention by political parties and their cadres. The government has been a protector of crimes and criminals in one way or other.
Let me present you an instance on how our government and political parties are protecting crimes and criminals for their petty and party interests. Clause 151 in the constitution states that the president on the recommendation of the council of ministers may grant pardon (to persons convicted) and suspend, commute or reduce any sentence imposed by any court, special court, military court or by any other judicial or quasi-judicial, or administrative authority or institution. This power of executive to grant pardon has been misused by political parties and government to provide a clean-chit to criminals in the recent months.
Among others, the Maoist-led government made a record in granting pardon to convicted murderers and rapists. Thus, the present government has a lot of responsibility to bring the criminals to book, let the police work independently without any pressure and influence while making sure persons convicted of heinous crimes are not granted pardon. If these things can be ensured, there will never be a need for death penalty.
(Writer is a constitutional lawyer.)
bhimarjun@gmail.com
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