Illustration by Cathy Wilcox.

Capital punishment hit the news this month when Howard and Crean backed the execution of Amrozi and Howard gave the OK for State governments to bring back the death penalty. (See The danger for Australians of approving death for Amrozi and Howard to the states: capital punishment your call. I got some great responses, and today, F2 trainee Antony Loewenstein guest edits the debate.

Giving life or taking it away

by Antony Loewenstein

The debate took off with John Howard’s August 8 statement on Melbourne’s 3AW radio after Amrozi was given the death penalty in Indonesia:

I am not supporting the reintroduction, I mean my position, let me repeat, is for reasons of pragmatic concern that the law from time to time will make mistakes, I am against the death penalty. That is the basis, always has been the basis of my objection. But I respect the fact that a lot of people are in favour of the death penalty, a lot of people who are close to me are in favour of the death penalty. It’s just that different people have different views.

The letters pages have since been filled with vitriol, bile, paranoia and outright indignation. The general tone has been one of disbelief that this issue, long thought buried after the hanging of Ronald Ryan in 1967, has again reared its ugly head.

Webdiary has received any number of responses – not many topics get the blood boiling like capital punishment. And John Howard sure knows how to play it both ways, or so says Chris Saliba:

As usual, John Howard excels at having it both ways. He’s against the death penalty, but approves of it at the same time. I can’t stand the way he talks about “normal Australian” response to grief, as if there is such a thing. I think the talk of Australian values and un-Australian behaviour the most moronic expressions flung about. Next there’ll be an Australian way for buttering your toast!

Howard knows that a Federal Election can be called very shortly, and as he said recently, national security will be one of the primary planks of his re-election campaign. Who you going to trust? asks Howard, and he knows what most people are answering.

One reader in Germany, Rodney Sewell, thought he must have misheard the PM:

“Mr Howard said that even if he were in favour of reintroducing the death penalty, he could not pass such a law. I’ve lived in Europe since 1985 so either I missed news of the referendum which allows Australian Prime Ministers to personally pass laws, or the PM was misquoted. Or does John Howard really talk like that?

Yours, settled in quite well in a democratic, free and very hot Germany, where NOBODY! wants to bring back the death penalty

David Shanahan suggests that Labor, by the undignified display of both Crean and Latham, still hasn’t learnt how to beat Howard on their own terms.

Margo, you’re dead right about Crean falling into Howard’s trap of moving the goal posts again. Crean has to go, he never learns. I just wish there was someone on the Labor horizon who could replace him and be less of a sucker where Howard is concerned.

The question remains: did Crean and Latham respond as they did because they believed it was electorally wise to do so, or because they actually supported the Amrozi death sentence? Are they too afraid of going against Howard on these vitally important issues? The public is left confused. Again.

Tim Dunlop, a former Webdiarist now based in the US, posted a warning against knee-jerk opposition to the death penalty on his blog roadtosurfdom:

Clearly Prime Minister Howard is willing to use it as wedge, but I’m sure he’d use his mother to chock up the car if he thought it would get him a few votes. But this doesn’t mean we shouldn’t have a debate about the issue.

Death penalty opponents sometimes seem to fear such debate because they presume they will lose it [Ed note: quite possibly what Crean was thinking last week, a lack of ticker as a well known PM once said!]. This fear is generated not because they doubt their own debating skills or the righteousness of their arguments – both of which they have a very high opinion of – but because they think “the public” will be too stupid and bloodthirsty to follow the “no” case. They just presume that “the majority” will vote yes.

Maybe that will be the outcome, but I don’t think it’s down to people being bloodthirsty or stupid at all.

Contrary to some received wisdom, I don’t think the arguments against the death penalty are open-and-shut, though I can’t really conceive of circumstances under which I would support its introduction. Even if my own child was the victim, I would hope I could be as clearheaded as father of Bali bombing victim, Brian Deegan, who said recently that he doesn’t want the death penalty enacted in the name of his child.

Nonetheless, I can see that other parents might come to a different conclusion, and if guilt was clearly established, and as long as it was enacted strictly within the confines of the legal system, I don’t think there is anything particularly awful about people wanting this ultimate form of sanction. In fact, it is almost the most understandable thing in the world. That doesn’t mean it’s right, and like I say, I don’t think I’d want it, but maybe that’s just me.

Anyway, stuff like this is precisely why I’d like to hear the arguments a long time in advance of any final decision being taken. Still, having said all that, I don’t think there is any particular urgency in such a debate. I mean, how high a priority is it really?

One final thing that always strikes me as weird is that it often seems to be the very people who purport to hate “government” the most, and wouldn’t trust it to do anything competently or honestly who are most willing to hand this power of life and death to the very organisation that is the usual object of their ire and contempt.

The Sydney Morning Herald ran a moving piece last week by Gregory David Roberts (It’s our humanity that dies in an execution) against the death penalty. Not an academic, lawyer or journalist, and not easily dismissed as a liberal, Roberts has spent a lot of time in prison. I like this in relation to Amrozi, a level-headed response to a heinous crime:

The term capital punishment is an oxymoron when applied to fanatics. You can’t capitally punish a man or woman who embraces death. I know this to be true because I spent time in a German prison with dozens of men who were accused or convicted of terrorist crimes. While I was busily trying, Colditz-style, to escape from the concrete fortress, the political prisoners remained placid and inert, because they saw their imprisonment as a triumph for their causes.

And before we start thinking that our religious beliefs could help us out of this mess, Webdiarist Peter Woodforde writes that our Christian heritage may just have been sold to the Devil:

The Australian flag carries four symbols of the instrument of capital punishment used by the government to kill Christ – the three amalgamated crosses of the British flag and the Southern Cross. Is it not fitting that our national political leader should wanly advocate the killing of a convicted terrorist in contravention of Christ’s teachings (and in accordance with the bomber’s wishes)? We have not, after all, ever pretended to be a Christian nation. What’s the bet that the nonces at the free-to-air and cable shopping-channels are already seeking broadcast rights for the “live” execution?

Following in the religious spirit, the recent visit to Australia by Sister Helen Prejean, granted fame due to the Tim Robbins directed Dead Man Walking movie, asserts that:

Killing them (the accused) is an act of despair that says the only thing we can do with you, since you did this, is to imitate you. It shows that we as a society have sunk to your level. (Capital punishment an act of despair, says adviser)

These views are from a woman who has seen countless men on death row in the US suffering, waiting sometimes years for execution. The church, certainly in the US at least, allows a wide variety of views under its steeple.

As an aside, the generally high support in the US for the death penalty could be explained by its God-fearing sensibility. Commentator Nicholas Kristoff, writing in the New York Times on August 15, senses a country descending into mysticism, myth, old wives tales and Bible stories as truth. It certainly makes the (archaic and traditional) nature of capital punishment more palatable. Since much of the world, developed and otherwise, gets some its moral direction and compass from the US, the death penalty will continue to be a troubling blot on America’s soul. Guantanemo Bay causes more constenation outside the US than within. The rise of DNA has made many Americans against capital punishment, but only because the wrong person might be executed, not because of an ethical opposition. Kristoff wrote:

Religion remains central to American life, and is getting more so, in a way that is true of no other industrialized country, with the possible exception of South Korea. America is so pious that not only do 91 percent of Christians say they believe in the Virgin Birth, but so do an astonishing 47 percent of U.S. non-Christians The result is a gulf not only between America and the rest of the industrialized world, but a growing split at home as well. One of the most poisonous divides is the one between intellectual and religious America.

In his public statements, the PM says it is up to the States to bring back capital punishment, suggesting Victorian opposition leader Robert Doyle might consider doing so in Victoria. Perhaps Howard was thinking that Doyle’s electoral chances, after a serious bollocking last year, would be helped by debating the issue. Michael Walton, from the NSW Council for Civil Liberties, points out that if Howard was serious about stopping this debate dead in its tracks, he could do so. But of course, who says Howard wants to do that?

By floating the idea that State Liberal opposition parties use the death penalty as a re-election policy, Prime Minister Howard has signalled a dangerous attack on our civil liberties and the most fundamental of our human rights: the right to life.

Mr Howard is correct to say that he does not have the power to impose the death penalty in a State such as Victoria. But what he fails to mention is that he does have the power to stop any State or Territory from re-introducing the death penalty.

In 1991, Australia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights (OP2). OP2 commits Australia to abolishing the death penalty. So the re-introduction of the death penalty in any State or Territory would violate international law and further tarnish our international reputation.

Since 1983, the High Court of Australia has consistently held that the Federal Parliament can override States to uphold our international obligations. In 1983 that power was used to protect the Franklin River in Tasmania. In the 1990s Paul Keating used this power to override anti-gay laws in Tasmania. If Mr Howard is willing, this same power can be used again to protect all Australians from the re-introduction of the death penalty by the States or Territories.

In fact, Mr Howard does not even have to wait for the States or Territories to make the first move. The Federal Parliament already possesses all the necessary constitutional powers to pass legislation incorporating into Australian law the protections offered by OP2.

The Prime Minister is correct to say that the law can get it wrong – just ask Lindy Chamberlain or WA’s John Button. And the NSW Premier is correct to say that, when it comes to the death penalty, a mistake is irreversible. The PM has the power to protect all Australians from the irreversible errors of law that will, on his own admission, inevitably result from a re-introduction of the death penalty in Australia.

If Mr Howard really believes that the death penalty is wrong, then he should act now to prevent its re-introduction and to protect the civil liberties of all Australians.

The Age ran a very powerful editorial last week condemning the PM for flirting with the issue:

To authorise the taking of one life for another – even for many others – does not uphold or protect the inherent value and dignity of all human life, but panders to the desire for revenge. That was the lesson of the dispute over Ronald Ryan’s hanging, and Australia’s politicians should continue to heed it.

And in this stinging response to the arguments of Howard, Bush and Blair in The Australian last week, Neil Clark, a tutor in history and politics at Oxford Tutorial College in England who supports the death penalty for Amrozi, believes that opponents of the death penalty in their own countries are engaging in blatant hypocrisy, especially Tony Blair, “with [his] impeccable Left-liberal credentials”:

With their contradictory stances on capital punishment, both the British and Australian prime ministers have much explaining to do. Could Blair kindly tell us why he endorsed the dropping of four 1000kg bombs on a Baghdad restaurant where Saddam Hussein was thought to be dining, but why he would not support the execution of the ex-Iraqi leader if he were found guilty of capital crimes in a court of law?

Webdiarist Tim Goodwin from Brisbane argued, in perhaps the most convincing piece of the whole debate, that if we believe as a democratic society that we are progressing ethically, morally and indeed spiritually, how can the death penalty be used in any circumstances?

Of course John Howard would effectively support the death penalty for Amrozi and appear to equivocate on the broader implications of that very support. After all, Our Leader has wavered or given implicit support for executions on a number of occasions over the past few years. It is usually on the basis of ‘well, that’s their law and I respect that’, or similar words. That would be an interesting view if applied to stoning to death women convicted of adultery under Sharia laws in Nigeria. Or Australians sentenced to the firing squad under Vietnamese law after being caught with a bag of heroin stuffed in their luggage.

Is this John Howard the man of strong personal principles, a man of conviction, or John Howard the opportunist who is beginning to sound like he has been studying cultural relativism in his Postmodernism course at Uni?

Now we’ve long known that Howard is the master of the “slippery phrase”, the line that doesn’t actually commit to much when you look closely at it but which nonetheless sends that nod and wink of support out over the talkback airwaves. So in the past when he has been pressed about the death penalty for Osama bin Laden, Saddam Hussein and the alleged Bali bombers, John Howard has usually made some general statement about the law that applies.

When asked on American Fox News whether he’d welcome the possible execution of bin Laden, he replied: “I think everybody would.” When the follow-up questions have concerned those responsible for Bali, and in the last few days Amrozi himself, Howard has said there would be no protest from the Australian Government if the sentence were carried out. However he has played it, each time the death penalty has been raised in the last few years, John Howard has given the green light to whoever is aspiring to pull the trigger or the lever.

It is interesting then to contrast what Australia’s opposition to the death penalty means when Australians are on trial for their lives overseas. On these occasions it is left to Foreign Minister Alexander Downer to articulate in the strongest possible terms Australia’s “universal” opposition to the use of the death penalty. For example, when 43-year old Sydney woman Le My Linh was sentenced to death in Vietnam in 2002 after being convicted on drug trafficking charges, the Foreign Minister issued a statement saying: “Australia is universally and consistently opposed to capital punishment. The Government has made its opposition to the death penalty clear to the Vietnamese authorities in the lead-up to Ms Le’s trial and appeal, and will continue to do so.”

Earlier in the year, the Minister told Federal Parliament that “we do want to leave a clear message for the Vietnamese government that this government – and, I should say, almost all members of this parliament too – oppose the death penalty.” That is, the Government universally and consistently opposes capital punishment – but only when it relates to the execution of Australian citizens overseas.

David Hicks may be grateful for one half of that inconsistency, although it remains to be seen whether the US Government honours its concessions in Hicks’ case.

But there are others who are troubled by the selective and inconsistent opposition to the death penalty that is stalking the Government, and Federal politics in general over these past few months. These are the people who fear that when human rights are optional principles – to be defended when it suits and discarded when the emotions are running too high — then human rights become just one more pawn in a bigger and much more cynical game.

There are those who believe that the death penalty is an affront to the values we are supposed to be defending in the alleged “war on terror”. That it contradicts the argument that we are fighting these wars to defend the sanctity of life, to prove to the world’s darker elements that individual human lives should not be traded in as part of some broader political struggle.

I think I’m not alone when I feel that every effort to undermine the protection of universal human rights, every effort to neutralise them with specious reasoning or inconsistency, leaves us just that bit more vulnerable to people who believe that, “This is my law, and I’ll make them respect it.

Webdiarist Jacob Stam sent in this intriguing piece written around the time of the Port Arthur Massacre. It gives what is perhaps the best explanation of the extremely disconcerting behaviour of Amrozi during his trial, his constant outbursts, his laughter and nonchalance at being sentenced to death. It is important to try and understand these people as not just evil or deranged, but rather human beings with an apparent death-wish:

Amok is the Malay word meaning to rush around in a state of frenzy committing indiscriminate murder. In popular speech, Martin Bryant [the Port Arthur mass-murderer] ran amok, although frenzy doesn’t quite fit a man who, in the words of a witness, would ‘pick someone else out and line them up and shoot them’.

In 19th-century Malaya young men ran amok butchering strangers with a sword, usually after suffering a massive blow to their self-esteem or prestige. At the turn of the century the British colonial government passed legislation ordering that the men (called pengamoks) not be killed but put in insane asylums.

That decision caused a dramatic decrease in the number of pengamoks, says Paul Mullen, a forensic psychiatrist at Monash University. Instead of finding glory in death, the man was humiliated by incarceration, and the practice is said to have dwindled.

Despite great cultural differences, what the pengamoks and modern mass killers have in common is a desire to discharge some colossal grievance, and belief in heroic death. What distinguishes Martin Bryant from both groups is that he is still alive.

Everybody’s favourite Liberal MP, Chris Pyne, got a spray from Webdiarist Fergus Hancock after reading his letter in last week’s SMH stating that the death penalty “reduces recidivism.” Fergus sees and feels a slippery moral decline on the cards:

So, Chris Pyne thinks capital punishment is a good idea as it reduces recidivism. Based on overseas experience (surely a good reason for a taxpayer subsidised trip) it also is a nifty way to deal with political opponents or to conduct ethnic cleansing. Does Pyne intend to differentiate between criminals and his political opponents? If so, then which would receive higher priority? The pro-death penalty constituents have probably been waiting for this debate since 1967.

Webdiarist David Spring in Brussels delivered a stinging rebuke of recent Australian ‘experimentation’, and clearly wants a return to the days of yore. Here’s one voice of the disaffected expat:

Amrozi aside, I think it’s brilliant that Howard has resurrected this cracking idea that’s been simmering beneath the surface for years. When we lived in Australia it seemed that everyone I spoke to at functions, BBQs, over the fence, wine tastings whatever wanted the death penalty – oooohh secretly could we all be barbaric animals who bray for blood? No.

It was only because the self-righteous morons on the left told us it was barbaric, cruel et al that we ever got rid of it in the first place – it just didn’t fit in with our 70s new age Australia. Well, now that we’ve had that little social experiment and its well and truly failed we might be able to come back and revisit some of the good things. Law and order went to the dogs after the Whitlam social experiments of excessive welfare, booming populations of single mothers, poor discipline in schools. Where do you want me to stop?

Good stuff Johnny, the economy is bubbling along, the social reforms are flowing – regulated and controlled immigration policies, the smashing of the welfare state – and now capital punishment is back on the agenda. He’s gone a long way to repairing the damage the clown Keating caused with his so called “vision and foresight” that you ignorant fools on the left shovelled down our throats so long. Jeez, if this keeps up we, the educated people, might start returning to the place.

A more nuanced approach came from Scott Wickstein, who argued here that Australians should be treated as well or badly as another country’s citizens. Respect the country’s legal system, Scott says:

Margo, you write: “Would we make representations if an Australian citizen had been found guilty of the charges against Amrozi? If not, then we have decided that in certain matters, Australian citizens will be left without the support of their nation when convicted of a capital offence overseas.” I can live with that. Are we to assume that Australians abroad deserve the support of the nation, regardless of how disgraceful their conduct? I think not. This is why I’m indifferent to the fate of David Hicks – this guy thought it was OK to join up with the Taliban, which as far as I’m concerned is like signing up with the Waffen SS or Stalin’s NKVD. I don’t hold with this view that “my country right or wrong” or, in this case, fellow citizen right or wrong.

For the record, I’m quite opposed to capital punishment, on the grounds that, as a proponent of small government, the government has no right to kill people, whatever the well meaning grounds given.

Finally, Dudley Sharp, from Justice for All in the US, a pro-death penalty, “criminal justice reform organization”, sent a response to Webdiary which argues that the generally accepted notion that capital punishment does not deter violent crime is in fact incorrect. He claims that a person found guilty of a heinous crime forfeits his or her right to life and therefore should be put to death. Dudley does not mention, however, the extremely unequal nature of the US justice system, the disproportionately high number of black men on death row and the number of innocent people sentenced on faulty or tampered evidence:

Some wrongly state that executions are a human rights violation. The human rights violation argument often comes from European leadership and human rights organizations.

The argument is as follows: Life is a fundamental human right. Therefore, taking it away is a fundamental violation of human rights.

Those who say that the death penalty is a human rights violation have no solid moral or philosophical foundation for making such a statement. What opponents of capital punishment really are saying is that they just don’t approve of executions.

Certainly, both freedom and life are fundamental human rights. On this, there is virtually no disagreement. However, again, virtually all agree, that freedom may be taken away when there is a violation of the social contract. Freedom, a fundamental human right, may be taken away from those who violate society’s laws. So to is the fundamental human right of life forfeit when the violation of the social contract is most grave.

No one disputes that taking freedom away is different result than taking life away. However, the issue is the incorrect claim that taking away fundamental human rights – be that freedom or life – is a human rights violation. It is not. It depends specifically on the circumstances.

How do we know? Because those very same governments and human rights stalwarts, rightly, tell us so. Universally, both governments and human rights organizations approve and encourage taking away the fundamental human right of freedom, as a proper response to some criminal activity.

Why do governments and human rights organizations not condemn just incarceration of criminals as a fundamental human rights violation? Because they think incarceration is just fine.

Do some of those same groups condemn execution as a human rights violation? Only because they don’t like it. They have no moral or philosophical foundation for calling execution a human rights violation.

In the context of criminals violating the social contract, those criminals have voluntarily subjected themselves to the laws of the state. And they have knowingly placed themselves in a position where their fundamental human rights of freedom and life are subject to being forfeit by their actions.

Opinion is only worth the value of its foundation. Those who call execution a human rights violation have no credible foundation for that claim. What they are really saying is “We just don’t like it.