Check against delivery
I should like to begin by thanking the organisers – the Union for Civil Liberty and the Swiss embassy here in Bangkok – for bringing about such a wonderful, energizing gathering, and for giving me the opportunity to address this meeting of key players in the human rights and justice scene in Thailand. I accept the honour of addressing you today on the understanding that the honour really belongs to the body that I represent, the Council of Europe and its Parliamentary Assembly. In my address, I should like to briefly introduce the Council of Europe and its role alongside the European Union (I.); then retrace the European “success story” turning our continent into an (almost) death penalty free zone (II.); and finally, address the specific challenges facing Thailand in the struggle for abolition (III).
The Council of Europe must not to be confounded with the European Union. These two organisations and their governing bodies have similar-sounding names and they share part of their membership: the European Union has currently 27 member states all of which also belong to the Council of Europe, whose membership of 47 states covers almost the entire European continent – with the regrettable exception of Belarus. This country, whilst aspiring to membership, has so far been prevented from joining the Council of Europe because of problems in its democratic development and not least by the fact that it is the last country in Europe which has still not abolished the death penalty.
The European Union, in a way, is the brainchild of the Council of Europe, which is the oldest European political institution. A child that has in many respects grown bigger and stronger than its parent, with whom it is now entering into a new phase of cooperation. Let me explain this to you a little more.
After the horrors of World War II and the crimes against humanity the full extent of which was only discovered after the end of the war, the peoples of Europe were thoroughly tired of nationalistic propaganda. Grass roots movements, in particular young people from all over Europe literally took down border barriers and demanded from their political leaders the implementation of policies of peace and unification for the whole continent. Winston Churchill’s famous speech in Zürich on 19 September 1946 resounded among the peoples of Europe and their European-minded leaders such as Alcido de Gasperi of Italy, Konrad Adenauer of Germany, and Jean Monnet of France. Churchill offered a remedy for the misery in which Europe found itself in the post-war period: “It is to re-create the European Family, or as much of it as we can, and provide it with a structure under which it can dwell in peace, in safety and in freedom. We must build a kind of United States of Europe.”
This movement gave rise to the setting up of the “Council of Europe”, whose statutory aim was and remains until today, according to Article 1 of the Council of Europe’s Statute “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.” Article 3 specifies: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”.
When progress in the direction of true unification of the continent slowed down due to the resistance of the political classes of the existing nation states, the Schuman Plan, proposing to begin by creating new institutions with limited but supra-national competences showed the way. The Schuman Plan, adopted by the Council of Europe’s Parliamentary (then: Consultative) Assembly in August 1950, gave rise to the creation of the European Communities (note the plural!) for Coal and Steel and Atomic Energy and the European Economic Community. The three bodies were merged into a single institutional structure in the Brussels Treaty, which entered into force in 1967; in the Treaty of Maastricht (entry into force: 1993) the European Community then became the European Union.
Hence my previous statement that the EU is in some way a brainchild of the Council of Europe. At the same time, the EU has in many respects become the Council of Europe’s “big brother”: in view of its broad mandate for economic integration and development, the EU’s budgetary and other resources have naturally become incomparably larger than those of the Council of Europe. The Council, however, in its own area of competence, is proud to provide good value for the taxpayers’ money. A frequently used comparison is that with the costs of the European Parliament for travelling between its two seats in Strasbourg and Brussels, which is the equivalent of the total budget of the Council of Europe, including the European Court of Human Rights – i.e. about €200 million per year. Or the number of staff members of the Council of Europe’s Parliamentary Assembly – less than 100 – compared with over 6500 at the European Parliament.
This is not meant as a criticism vis-à-vis the European Union, which is a great success story of which all Europeans can be proud. But the success of the European Union has not made the Council of Europe irrelevant. To the contrary, the Council of Europe has taken on an important role of its own, which is complementary to that of the European Union.
To explain this better, let me go back in history to the dark days of the Cold War. For decades, the Soviet Bloc treated the Council of Europe and its approach based on democracy and human rights as the ideological arm of NATO. But when the Iron Curtain dividing the European continent fell and central and eastern Europe and even the countries resulting from the split-up of the former Soviet Union moved towards democracy, the Council of Europe became their partner of choice. The reformist President of the Soviet Union, Mikhail Gorbachev, developed his grand design of the “Common European House” in the Parliamentary Assembly of the Council of Europe. And the Council, after the Vienna Summit in October 1993, opened its doors and accepted the new and still developing democracies as full members.
Not without conditions though – and here I touch for the first time upon the main topic of my presentation, the abolition of the death penalty: the prior introduction of a moratorium on executions and the commitment for abolition of the death penalty in law became a key condition for accession to the Council of Europe. This was an idea, an initiative of the Parliamentary Assembly, launched by my illustrious predecessor as rapporteur on the death penalty, Mr. Göran Franck from Sweden. It was the Assembly which, as of 1994, made use of its power to block the accession of new member states to the Council of Europe in order to make a moratorium on executions and a commitment to completely abolish the death penalty within a reasonable time a pre-condition for accession.
After the end of the Cold War and the fall of the Berlin Wall, the Council of Europe has thus taken on the important role of cooperating with the new democracies in central and eastern Europe in order to establish democratic security, bring about the rule of law and promote human rights. The impressive progress achieved in these fields has also been a prerequisite for these countries’ successful transition to the market economy and for sustainable economic growth by creating a safe investment climate.
A number of the Council of Europe’s new member states have by now also joined the European Union. Today, the 27 EU member states which also belong to the Council of Europe constitute a block of like-minded states which play a particularly constructive role within the Organisation, whose task it is now to avoid the emergence of new dividing lines, of a new “iron curtain” in Europe.
The Council of Europe’s working methods and tools have proved quite appropriate in order to fulfil the task of promoting democratic stability, the rule of law and human rights throughout Europe. A key instrument of the Council of Europe is that of negotiating European Conventions which set common standards and provide for monitoring mechanisms which make sure that these standards are correctly applied in practice.
The most important and successful of these Conventions is the European Convention on Human Rights and its protocols, which lays down a clear-cut catalogue of human rights - including the right to life and the prohibition of torture and of inhuman and degrading treatment, which, as we will see, have played an important role in the abolition of the death penalty in Europe.
The Convention also establishes the European Court of Human Rights whose task it is to provide judicial review of the implementation of the Convention in all member states. The most important new feature of this Court is that it is open for individual applications from people from all over Europe who feel that their rights have been violated by their own states. The states have voluntarily subjected themselves to the Court’s jurisdiction. Its judgments are binding on the states. Their timely implementation (some say: execution, but I prefer not using this term today…) is supervised by the Committee of Ministers, the Council of Europe’s executive body. The ECHR system is a real European success story, despite some problems such as the high number of applications from certain countries which has caused the Court to run up a backlog of over one hundred thousand cases.
The ECHR system provides European states with an outside assessment, with an “external audit” of their performance in human rights matters, for the benefit of their citizens.
The next logical step will be for the European Union itself to join the European Convention on Human Rights so that the EU institutions may themselves benefit from such an external “human rights audit”. After the entry into force of the Lisbon Treaty finally provided the legal basis for such an accession, negotiations were launched earlier this month. EU accession to the ECHR will be the cornerstone in the construction of a truly pan-European system of protection of human rights, without double standards and new dividing lines.
In addition to the European Convention of Human Rights, the Council of Europe has produced many other Conventions aimed at improving cooperation between European states in the legal and human rights fields, such as the European Convention for the Prevention of Torture (CPT), which sets up a system of regular and surprise visits by experts in any place where people can be held against their will, for example prisons, police stations and mental health institutions. Other Conventions are designed to prevent racism and xenophobia, or to protect the rights of national minorities, or simply to facilitate cooperation between national authorities in such diverse matters as criminal law, the fight against corruption and against trafficking in human beings, or family law.
As regards world-wide abolition of the death penalty, the Council of Europe and the European Union have long been on the same wave-length. The EU organs – European Parliament, Commission and Council - have adopted the same abolitionist line, and the two European institutions have a long history of joint action for the promotion of abolition, in particular at the level of the UN and in bilateral relations with third countries. I was particularly pleased to see in the programme of your conference that a representative of the European Union will also participate. Please allow me to warmly greet my colleague from that body.
As the parliamentary body of the Council of Europe, the Parliamentary Assembly brings together delegations from the national parliaments of all 47 member states. It is proud to be the driving force behind most achievements of the Council of Europe. It was the Assembly which proposed the conclusion of the European Convention on Human Rights itself, a truly revolutionary idea in 1950, and it was in the Assembly that the great political movement started which has made almost all of Europe a death penalty free zone:
- the Assembly launched the idea of the two additional protocols to the European Convention on Human Rights banning the death penalty, i.e. Protocols 6 and 13;
- and, as I just mentioned, the Assembly made use of its powers in the process of accession of new member countries in order to encourage candidate countries to drop the death penalty.
The first time I acted as Rapporteur on the abolition of the death penalty was in 1996, when the Assembly was worried that some countries had broken or were on the brink of breaking their still recent commitments in favour of abolition. On the basis of my report, the Assembly strongly reaffirmed its abolitionist stance in Resolution 1097 (1996).
Starting in 2001, given the more and more solid consensus against the death penalty on our own continent, the Assembly’s and my own focus shifted towards the Council of Europe’s observer states, in particular the United States of America and Japan.
According to the statutory texts of the Council of Europe, observer states are expected to share the common values upheld by the Council of Europe, namely the respect for human rights, democracy and the the rule of law. These values are permanently evolving. When the United States and Japan became observers with the Council of Europe in 1995 and 1996 respectively, the strong European consensus against the death penalty was just beginning to emerge and was not yet taken on board by all member states.
In Resolution 1253 (2001), the Assembly reaffirmed its complete opposition to capital punishment. It decided to “henceforth only grant Observer status to states which strictly respect a moratorium on executions or have already abolished the death penalty.” In Resolutions 1349 (2003) and Recommendation 1760 (2006), again based on reports I had prepared as Rapporteur, the Assembly reiterated its appeals to the Council of Europe’s existing observer states to end executions. In September, I will present to the Committee on Legal Affairs and Human Rights another report on this issue. I must admit that it is frustrating to note, again and again, that progress is still very limited and slow. But progress there is, especially in the United States of America, where several states abolished the death penalty in recent years and where the Supreme Court recently stopped the execution of minors and of mentally handicapped persons. Abolition did not come over night in Europe either, so we must be persistent, until we prevail!
As I just said, almost all of Europe is now a death-penalty free zone: one European country has not yet joined the family of the Council of Europe, namely the Republic of Belarus. One of the reasons is precisely the refusal of the current regime to abolish the death penalty, or at least to introduce a moratorium.
In June 2009, the Assembly reaffirmed its commitment against the death penalty. It subjected the granting of the “special guest status” to the Belarusian parliament to the prior introduction of a moratorium. The special guest status is a kind of parliamentary observer status seen as a stepping-stone to full membership. I introduced this condition myself by way of an amendment to a more general resolution on relations with Belarus, together with some colleagues of the Assembly’s Committee on Legal Affairs and Human Rights. In June 2010, the Assembly even decided to break off high-level contacts with the Belarusian authorities in view of two new executions carried out in defiance of the Council of Europe’s stance.
Right now, it can safely be said that the death penalty is considered in Europe as a violation of human rights, both in terms of the right to life (Article 2 of the European Convention on Human Rights) and the prohibition of torture (Article 3). As early as 1989, the European Court of Human Rights found that conditions on death row to constituted “inhuman and degrading treatment” within the meaning of Article 3.
This means that States Party to the European Convention on Human Rights cannot extradite a person to a retentionist state, or provide any judicial assistance in murder cases – or even drug cases, when a country foresees the death penalty for such offenses - unless a credible assurance is given that the suspect will not be subjected to the death penalty. Just to illustrate the point I am trying to make of how much the death penalty hinders international cooperation in the fight against crime: if Usama Bin Laden himself were to be caught, say, in my country, Liechtenstein, we could not extradite him to the United States without such a specific assurance. This goes to show just how much international legal cooperation, also in the fight against terrorism or any other forms of international organised crime, such as drug smuggling, is hindered by the retention of the death penalty in the countries which should be Europe’s natural partners in this important struggle.
As you can see, shared fundamental values are not some kind of sentimental luxury. They are important preconditions for mutually beneficial international co-operation. To explain this at every opportunity in our international relations – not least at the parliamentary level - is in my view a more promising approach than waving the threat of “sanctions” or applying “pressure”.
Of course we in the Parliamentary Assembly have already thought of recommending the withdrawal of the observer status enjoyed by the United States and Japan at the Council of Europe. But would this really further the goal of abolition? In my view, such a “sanction” would merely strengthen the hand of retentionist political forces who could exploit Europe’s perceived arrogant attitude. It would be interesting to hear from our Thai hosts how “sanctions” or “pressure” aimed at abolishing the death penalty would be perceived in their country. Am I right in thinking that they would be counterproductive?
The European experience of abolition is undeniably a success story. In my view, we can “sell” it more effectively if we point out the positive outcome of abolition by giving concrete examples.
The Parliamentary seminars the Assembly organised in Washington/DC and Springfield/Illinois as well as in Tokyo some years ago are examples for this strategy. At the seminar in Springfield, one of the American participants was a brilliant, dynamic member of the State legislature’s committee on judiciary whose name you can probably guess ... yes, Barack Obama contributed to our seminar. He pleaded eloquently in favour of maintaining the moratorium on executions that the Governor of Illinois had decreed in view of the large number of wrongful convictions which were discovered at that time. Obama’s supporters now expect him to bring about real change, also to the cruel, racially and socially biased practice of capital punishment which is such a stain on this great country.
But as we are here in another great country, Thailand, I should now like to address the particular death penalty issues that you are facing here.
On August 24th, 2009, the government of Thailand executed two drug traffickers, Bundit Charoenwanich and Jirawat Phumpruek, giving them only one hour’s notice of their impending death. This brutal end to a six year moratorium on the death penalty in Thailand shined a light on the inconsistencies and abuses of the Thai penal system and added new urgency to the abolitionist campaign. Fortunately, however, along with drawing attention to work that must still be done to improve the situation, the tragic killings brought into perspective the significant ground that the abolitionist cause had gained during the moratorium. Reaction to the recent executions showed a notable change in opinion since the last executions six years ago. The Thai press picked up the story shared by the Commander of Bang Kwang Prison on receiving the order of execution. Prasert Yusuphap, praying before the image of Buddha in his office, commented:
“‘I’m a Buddhist and I don’t want to order the killing of anyone.’ On asking for three volunteers to carry out the execution by administering the lethal injections, there was no response from his assembled subordinates and he was himself forced to choose the three. Comment in the press was largely against the executions and in favor of abolition or a restored moratorium. Such a reaction did not occur six year ago when the first executions by lethal injection were carried out.”
In Thailand, death sentences are a common penalty in drug cases, and many of the prisoners on death row are foreigners sentenced for drug offenses. In figures provided by the Corrections Department, a total of 390 death sentences in a total of 857 are drug related. For cases where all legal procedures have ended 83 cases out of a total of 115, or 72%, are drug related. Despite these figures, seeing so many of you here today in support of the abolitionist cause, and in light of the recent changes in Thailand, I am hopeful that Thailand can follow in the footsteps of the 179 abolitionist states. My experience with European abolitionism convinces me that this is possible.
Having been closely involved with working toward a European-wide abolition of the death penalty, I am confident that abolition can and must also be achieved in Thailand. The reasons which galvanized European support of abolition apply to Thailand as well.
Firstly, the death penalty is irreversible. As fallible human beings, we cannot claim to be able to fashion a penal system that is free of error. Given the probability of convicting and sentencing the innocent, it is unacceptable to impose a punishment that is permanent and irreversible. A system that wrongfully convicts and imprisons an individual can take steps, however inadequate they may be, to atone for the error, but once a state has executed an innocent person, there is no way to right the wrong committed. The figures from various countries prove that such errors run rampant. In the United States, for example, 139 individuals on death row have been found innocent and exonerated since 1973, most commonly on the basis of eyewitness error, negligent or even intentional misconduct by police and prosecution officials, incompetent defense counsels, scientific errors, and false confessions.
Drug-related cases are particularly prone to human error and manipulation. It is quite easy to hide a package of drugs in a stressed, overly-tired traveller’s bag. Having arrived in your beautiful country after a long-haul flight from Europe, I know what I am talking about. People are tired, excited about arriving in an exotic place, and fail to pay attention to their luggage for just a few moments. Or some naïve youngster even knowingly accepts to “help out” someone who asks him or her to help smuggle-in some much needed foreign medicines, which may be held up by bureaucracy. I know, you have to be quite naïve to do that, but in some European countries, there is a whole generation of children brought up in a protected environment by loving parents who totally lack the “street smarts” they really need when they go on their first big trip abroad. Even when a silly foreign youngster, who grew up with drug use and possession being treated as a petty offense in his or her own country, and who was totally unaware of the severity of Thai penalties for drug-related offenses knowingly accepts to smuggle a package of drugs, this is in my view not such a serious crime that the death penalty could in any way be appropriate.
Finally, there can also be intentional manipulations by rogue policemen. In Europe, too, we have come across this problem. There have been cases of corrupt or otherwise manipulative police officers who hid drugs in someone’s car trunk at a routine traffic control; at a second check point, set up just a few hundred meters down the road, another team of policemen – possibly in perfectly good faith – will find the drugs and the owner of the car finds himself in prison, where certain collaborators of the authorities wanted him for various reasons. Such manipulations can and do occur in many countries. They are unacceptable violations of the right to freedom of the person. But when the punishment for drug possession is death, they are totally intolerable violations of the right to life!
A further factor pointing toward the necessity of abolition is the ineffectiveness of the death penalty, repeatedly demonstrated in empirical studies conducted around the world. Death penalty supporters cite two main reasons for the imposition of capital punishment: deterrence and retribution. However, data shows that neither of these ends is achieved when a state puts individuals to death. Criminologists overwhelmingly agree that the death penalty does not contribute to the deterrent effects already achieved by long imprisonment and, in particular, a high clearance rate. Since the death penalty is often applied in Thailand in drug cases, it is important to note that there is no evidence that the threat of capital punishment has any deterrent effect on drug trafficking, drug sales, or drug usage.
Rather, looking to the example of Thailand’s neighbours, we see clear indication that capital punishment is a failed policy. As Chairman of the Ministry of Interior Saksiam Chidchop explained an increase in penalties for drug trafficking, he pointed to the “successful policy of Malaysia and Singapore.” However, a comparison of Indonesia, Malaysia, and Singapore provides an excellent illustration that the threat of execution does not have the anticipated effect on the illegal drug market. Deterrence theory would predict that wholesale drug prices would be higher under conditions of heightened risk. Singapore executed 103 persons between 1999 and 2005, compared to seven executions in Indonesia and eight in Malaysia. In this case, we would expect drug prices to be far higher in Singapore, given the high number of executions, and marginally higher in Malaysia. Also, more than half of the executions in Singapore from 1999-2005 were for drug crimes. However, evidence from the United Nations Office of Drugs and Crime for 2003-2006 shows that wholesale prices for heroin and cocaine were nearly 50% lower in Singapore than prices in Indonesia; prices in Malaysia also were lower than in Indonesia. The same UN survey also shows that drugs were more prevalent in Singapore than in Indonesia, and that drug problems were increasing in Singapore and Malaysia. During this era, 73 persons were executed in Singapore, compared to two in Indonesia, yet drug trafficking was increasing and drug prices were lower in Singapore during this time.
In light of the problems presented by arbitrary, irrational imposition of the death penalty, some may propose increasing the rate of executions as a solution. Clearly this is an unacceptable alternative. To do so raises the risk of epidemic errors and reversals, and the horrific prospect of executing innocent persons. These are risks a civilized, democratic society cannot tolerate. Rather, fair and rational application of prison sentences is much more likely to serve the necessary deterrent function. As Justice Chaskalson from the Constitutional Court of South Africa so astutely noted, a criminal justice system can deter unwanted behavior without putting individuals to death:
“In the debate as to the deterrent effect of the capital punishment, the issue is sometimes dealt with as if the choice to be made is between the capital punishment and the murder going unpunished. That is of course not so. The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment. Both are deterrents, and the question is whether the possibility of being sentenced to death, rather than being sentenced to life imprisonment, has a marginally greater deterrent effect, and whether the Constitution sanctions the limitation of rights affected thereby.”
Nor does killing by the state provide retributive justice. The prolonged duration of the death row appeals process can reopen old wounds for victims’ families without providing a satisfying conclusion. An additional death, far from correcting the death of innocent victims, simply creates more suffering, particularly for the executed individual’s family and loved ones. It is unacceptable for a civilized society to allow untempered, instinctive feelings like anger, revenge, and hatred to dictate their policy of punishment. Rejection of the death penalty allows a society to uphold a respect for human life as sacred. The damage caused to society by the crime of the convicted individual is best repaired by his repentance and reform, not by his killing at the hands of the state. It is an affront to the suffering and the dignity of those wronged by the condemned person that such a brutal killing be committed in their names.
Importantly, international obligations and opinion also strongly support abolition. While 179 countries have abolished the death penalty in law or in fact, Thailand is one of 25 that still retain it, and one of a very small number that commonly impose it for drug offenses. The international norms that Thailand has subscribed to indicate a long-term commitment to rejecting the death penalty. For instance, Article 3 of the Universal Declaration of Human Rights states that everyone has the right to life. Article 6 (2) of the 1966 Covenant on Civil and Political Rights states that “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.”
Of the minority of countries still adhering to capital punishment at all, only half foresee the death penalty for drug-related offenses. While the application of capital punishment is claimed to be justified for the trafficking, cultivation, manufacturing, importing or exporting of drugs, in most states the criterion has come to be an arbitrary amount of drugs. Especially repellant is that consideration of extenuating circumstances of the crime is excluded from deliberations. Rather, a single, arbitrary number is the deciding factor.
A UN Secretary-General’s report on the death penalty noted that the threshold for a capital drug offense among retentionist countries ranged from the possession of 2 grams to the possession of 25 kilograms of heroin. Given this absurdly wide range, it is impossible to pinpoint what constitutes a “most serious crime” for purposes of imposition of the death penalty. In light of such ambiguity, a state ought not impose a death penalty in a manner that likely will contravene its obligations to uphold the right to of life under the Universal Declaration on Human Rights. The inconsistency in the application of the death penalty among states and even within individual states shows that there is no defense for capital punishment for drug crimes.
UN bodies have strived to clarify the meaning of “most serious crimes” in a way that would exclude exactly the type of drug-related crimes that Thailand so severely punishes. In July 2005 the UN Human Rights Committee in Geneva addressed Thailand’s death penalty, announcing that the state “should review the imposition of the death penalty for offences related to drug trafficking, to reduce the categories of crime punishable by death.” The Committee pointed out that drug-trafficking charges are not the “most serious crimes” for which the death penalty is tolerated as a temporary expedient on the way to total abolition, referred to in Article 6 (6) of the 1966 Covenant. This language has also been taken up in comments made by members of the UN Human Rights Commission and Committee, as well as by Special Rapporteurs. In practice the consensus is that the “most serious crimes” intended by Article 6 (2) should be limited to intentional homicide. In this context we may turn to the interpretation addressed by the Human Rights Committee particularly to Thailand, on the occasion of its initial report on observance of ICCPR:
“The Committee notes with concern that death penalty is not restricted to the ‘most serious crimes’ within the meaning of article 6, paragraph 2, and is applicable to drug-trafficking charges. The Committee regrets that, despite the amendment, in 2003, of the Penal Code, which prohibits imposition of death penalty on persons below 18 years of age, the State party has not yet withdrawn its declaration to the Covenant on article 6, paragraph 3. The State party should review the imposition of the death penalty for offences related to drug trafficking, to reduce the categories of crime punishable by death.”
Particularly indicatory of the injustice of capital punishment for drug offenders is the fact that 1) it is often the mere “cogs” in the system who are punished, while the drug bosses are experienced and powerful enough to escape the hand of the law; 2) unlike murderers who are subjected to the same penalty, drug offenders do not intend their actions to result in anyone’s death – rather, their - criminal and despicable – “business” relies on a continued relationship with their “clients”; and 3) the exact weight criterion is not only arbitrary, but opens the door to abuses motivated by corruption. Corrupt police investigators can nudge the weight up or down by the margin required, in effect playing God and determining who lives or dies. Judging from comments made by audiences during seminars on capital punishment throughout the country, of which I was informed prior to this conference, there is widespread mistrust in parts of the Thai justice system. Is the distinction between a serious and a most serious crime, in fact between life or death, to be set by a bribe?
Thailand’s retention of the death penalty ignores the majority votes of the United Nations General Assembly in December 2007 and again in December 2008 in favor of a universal moratorium on the death penalty and the growing international consensus against capital punishment. Death penalty supporters argue that Thailand is a special case requiring more drastic deterrence. At a recent symposium on the death penalty a former high ranking officer in the Ministry of Justice claimed that the death penalty was required in Thailand because “it is the most violent country on earth.” This is certainly false. Russia and Mexico register higher violent crime rates and murder rates than Thailand, and both have abolished the death penalty with no undesirable impact on crime. The example of Canada shows that violent crime actually decreased after abolition. Executions are killings in the name of the people, they contribute to the brutalization of society, to the culture of death and violence that we all strive to overcome.
The death penalty also runs up against the prohibition on torture. As tales from death row prisoners indicate, bearing the weight of impending execution constitutes mental and often physical torture. The following is related by a death row inmate from Bangkwang:
“Most times we did not know when they were coming. Sometimes they would lock us down early but would use an excuse like important visitors were coming into the building. They would tell us that we had nothing to fear and that we should remain calm. They would always come at 4:30 p.m. and the sound of the steel bars and chains being unlocked and removed from the door would strike fear and terror into the hearts of every man on the Row.
The trouble was that those men who had exhausted all possible avenues of reprieve and were on the ‘Blacklist’ were spread equally amongst each of the 20 or 50 cells. There were usually 3 – 4 “blacklisted” guys in each cell so of course when we would hear the block door being unlocked the entire block would fall into a fearful silence. Even those guys who knew it wasn’t their time would be overwhelmed with fear because of the hysteria generated. Fear is infectious and each time was mental torture because we all knew that some day it would be our turn.
The group of five or six Special Officers would walk slowly up the aisle until they reached the cell that contained the guy whose god had finally called him. There would be a kind of vacuum in the block where every condemned man had breathed in and failed to exhale again. We could all, every last one of us; hear our own hearts beating so loudly in our chests that it was deafening. The man would be called to the cell door, handcuffed then led away to oblivion.
You could cut the relief with a knife but what a terrible relief. Another of us had gone forever. I saw 21 men go this way during my time on Death Row. Every last one of them walked calmly and silently to their fate. In their heads and hearts they were already dead.”
Religion in Thailand also supports abolition. The first principle of Buddhism is respect for life. The fact that the death penalty still exists despite this prevailing religious faith creates a strong conflict of conscience. I have already referred to the testimony of the Commander of Bang Kwang Prison, Prasert Yusuphap.
In another remarkable interview by a buddhist monk whose office it was to comfort the condemned on their way to execution, the monk remarked that as a monk he would reject the death penalty, but being a Thai citizen his obligation to respect Thai authority held greater sway and he supported execution.
Drugs are obviously an evil in society, and I am in no way advocating that a government stand idly by while drug offenders prey on those who are young, vulnerable, and susceptible to their pernicious temptation. However, the way to eradicate the dangers of the drug trade is to minimize demand through educational outreach, and to cut off sources of supply through social remedies that address the root evils from which spring the desire or need to become involved in the drug trade. The current policy does little to help those destitute and desperate individuals who feel as though they are forced into a life of crime to scrape together a living, to protect those who might fall prey to drug lords, or to provide closure or redemption to those harmed by the condemned. Rather, it sets up a system through which the naïve, young, and foreign often find themselves facing death for foolishly flouting drug laws – scapegoats for a network which they had no hand in creating.
The argument most often put forward against abolition is that “public opinion” favours executions. However, the hallmark of a successful democracy is that it protects all citizens from what de Tocqueville called the “tyranny of the majority.” If the majority seeks to infringe upon the fundamental human rights of a minority, no matter how blameworthy this minority may be, a civilized, modern society cannot tolerate such a sacrifice of the few for the benefit of the many. In any case, poll results are notoriously unreliable: the outcome of opinion polls depends on the level of education and information available to those polled, the way the questions are asked, on the day’s news, and on the agenda of the pollsters or of those commissioning the poll. As we saw in Europe, abolition is an issue where politicians must lead, not follow public opinion. In no European state did public opinion support abolition at the point in time when executions were finally outlawed. At the same time, again in Europe, no governing party has lost an election due to abolition!
The point I want to make is that in almost all of Europe, following the lead of courageous politicians such as Robert Badinter, the former French Minister of Justice, who spearheaded abolition in France and is now a world-wide campaigner against the death penalty, the general public has now fully embraced the abolition of the death penalty. Only the “loony right” in a few European countries still favours executions, the political mainstream has simply moved on.
In Thailand, people may still be unaware of the huge advances in criminology and the understanding that the death penalty is not effective in deterring crime. If we must wait until public opinion opposes the death penalty, Thailand will remain an increasingly isolated outpost of capital punishment for a long time. As in Europe, a morally enlightened leadership can endeavour to educate public opinion and create an understanding that life cannot be ended on the order of anyone, for whatever reason.
The prior introduction of a moratorium on executions before outright abolition of the death penalty in most European countries has proved helpful to reassure the general public that stopping executions does not lead to an increase in violent crime. To the contrary, as the example of Canada - another observer state of the Council of Europe - shows: violent crime has actually decreased in Canada after abolition. Executions are killings in the name of the people, they contribute to the brutalisation of society, to the culture of death and violence that we all strive to overcome.
The Council of Europe is at the disposal of all interested nations, including of course Thailand, to assist them in bringing about a similar process, by sharing its positive experience with ridding itself of this inhuman, degrading punishment that violates the most fundamental human right – the right to life.
The task at hand for Thailand is a difficult one, but one which I believe and trust it can take up. Thailand is known in Europe as a friendly country, the “land of smiles”. Millions of tourists come home every year from your beautiful country forever touched by the friendliness, yes, even the loveliness of its people and its ancient civilisation built on Buddhism, a religion whose reverence for life is admired in the whole world. As a friend of your country, I am truly saddened by the stain left on the otherwise overwhelmingly positive image of Thailand by the death penalty practice that is still in use. I invite the Ministry of the Interior, the Ministry of Justice and Thai civil society to initiate a well-informed debate on the issues of capital punishment as recommended by the UN General Assembly. This debate should be accompanied by a renewed moratorium on executions so that Thai society may come together in a serene atmosphere to exchange views and information, and take another step toward protecting the most sacred of gifts: that of human life.