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ABSTRACT

Significant progress has been made worldwide towards abolition of death penalty in law and in practice. The pace may be slow, but the numbers of execution has continuously declined. Despite great awareness for human rights there exist a number of countries who have not yet given up on this barbaric form of punishment. It includes the Commonwealth countries who remain a tenacious supporter of death penalty in the era of human rights. Capital punishment is a widely discussed topics in Commonwealth region as majority remain retentionists. The international agencies have time and again pointed that form of punishment is associated with miscarriage of justice and disproportionate execution of poor and downtrodden. This article analyzes the position of Commonwealth countries on death penalty and makes a comparative study. The impending question remains whether death penalty is justified in modern society. The paper also discusses the dichotomy between death penalty and Human rights in cases of extradition leading to a diplomatic controversy.

Key words: human rights, death penalty, Commonwealth Countries, extradition, right to life.

1.      Introduction

The right to life is the most fundamental of all human rights… The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process…”[1]

At the end of 2018, 106 countries (a majority of the world’s states) had abolished the death penalty in law for all crimes, and 142 countries (more than two-thirds) had abolished the death penalty in law or practice.[2]

The glorious British Empire was the largest empire known in history paving its way towards becoming the first global power.[3] It comprised of states under the administration of United Kingdom. The Empire swelled to a point where it covered 22% of the landmass of earth.[4] The states under the control of British empire were largely impacted by laws enforced by British agencies and even after independence continued to carry forward British legacy in form of laws which were prevailing in former colonies. Capital punishment is one of the many laws which former colonies incorporated in their systems involuntarily without taking into account its repercussions. But a phase of transition followed when the United Kingdom itself abolished age old form of punishment and became an active supporter of movement of abolition of death penalty from all parts of world. This changed the dynamics in now independent former colonies calling for revaluation of capital punishment in modern times.

2. Death Penalty & Commonwealth Nations

History has witnessed that British Empire was unequivocally the largest empire ever known to the mankind. The famous phrase that “sun never sets on British empire” has become a gospel truth considering vast area across the globe which was under British domination. British Empire spread across length and breadth of the globe. But after enjoying a long period of domination, wind of independence blew in many colonies leading to their way to independence. The British Empire consisted of union of states which were under its control it came to be known as Commonwealth of Nations. But later Commonwealth recognized the independent states as “free and equal”. British Commonwealth majorly consists of nations which were former British colonies.

The Commonwealth association is voluntary in nature and currently comprises of 53 independent states. It covers a whopping thirty per cent of world population. The union of Commonwealth members vouches for principles of democracy, good governance, human rights, rule of law and other key features of a progressive state.[5]

After decolonization most countries retained penal codes inspired from Colonial Empire.[6] Commonwealth comprises of both big and small states. It is a unique amalgamation of distinct cultures. The shared common history and a strong criminal administration system led to adoption of many provisions present in the British Empire at the time of independence of these states. Capital punishment is one of the forms of punishment which was especially drawn from colonial regime by countries which were former colonies. The British rule sanctioned execution of criminal by way of hanging. The same form has been adopted by many commonwealth countries in their domestic penal laws.[7]

Commonwealth countries belong to diverse regions Africa, Asia, Caribbean and Americans, Europe and Pacific. The members of commonwealth are distinctive, with some having large populations and others with menial numbers.[8] Death penalty is often a debated topic in British Commonwealth as majority members remain retentionists. Out of 53 member states, 28 consist of death penalty in their statutes or are practicing it, while 16 states have abolished it. Further 9 states have abolished death penalty in practice, though it is exists in their penal laws.[9] Merely 37% of states have abolished death penalty de jure. So the pressing question remains is death penalty a commonwealth problem?[10] It is important to note here that these countries have diverse culture but what unites them is shared history. Majority of them have been ruled by Colonial regime and incorporated many laws which were readily available at the time of their independence. Colonial regime depicted a strong administrative and legal regime with structured punishment. This made the newly independent states to adopt the same penal laws as existed during British rule. Death by hanging was sanctioned as it was considered the most humane way of killing a living being. But with time some states developed an aversion towards adopting this barbaric approach into their penal system.[11] Colonization has been associated with generating norms which symbolizes freedom and human rights. Colonialism also gave one of the oldest and greatest human rights charter, Magna Carta, Bill of Rights, 1688 and Habeas Corpus Act.[12] The principles laid down under these Charters have been adopted by other parts of the world in the form of constitutional provisions. Moreover the international conventions on human rights have been significantly been inspired by Magna Carta and it remains basic premise on which all human rights find their place. The striking irony lies in application of death penalty in a system which preaches freedom and rights of man.[13]  The influence of colonialism can still be found in law making of commonwealth members. The adverse influence on penal code has allowed them to sanction primitive practices like death penalty, non recognition of LGBT rights, restrictive abortion laws.[14] There is unequivocal resemblance in penal codes of these states with that prevailing during British reign.

But with passage of time this has been realized and positive movement towards abolition began. Commonwealth countries were majorly considered primitive and conservative. They were not as progressive as the global West.[15] Also the European Commonwealth parts were prompt in abolishing death penalty than other parts. Death penalty is usually seen to exist in states having large population, crime rate and poverty. Their growths have been slow which symbolizes their hesitant nature. But there has been a transition in position of many commonwealth members which depicts a keen nature to imbibe modern practices of world. More than half of UN member states have moved towards abolition of death penalty either in law or practice.[16] There are all good reasons to abolish this draconian law sanctioning death through legal means.[17] In the era of human rights sanctioning death will be an impediment in ensuring humans with greatest amounts of freedom as it directly infringes natural rights of a being. Death penalty is not just against human rights of a person but also propels gaps in criminal justice administration as it associated with arbitrariness and inconsistent application challenging natural rights of a person.[18]

3. Abolitionist in Law

3.1 United Kingdom on Death Penalty

British era was marked with structured organizations and rule of law principles. This instilled the concepts of putting law above all. They argued for sanctioning death sentence for a number of offences, most popular being treason or sedition. Capital punishment was sanctioned the mode of execution was fixed to be hanging, calling it the most humane means of all other available methods. Even after independence, states were reluctant to abolish capital punishment as they considered it to be deterrent. But with passage of time and growing outrage for recognition of human rights, death penalty started losing its supporters. Britain witnessed a shift in opinion which led to abolition of death penalty for murder in 1965 in the region. Later in 1973 Northern Ireland also abolished death sentence for murder.[19] One of the first few countries amongst Commonwealth to abolish capital punishment was Canada.[20] Initially the abolition was de facto from 1963 but later on in 1976 Bill[21] was enacted to abolish death penalty altogether from the law.[22]

The last execution in United Kingdom (U.K.) took place in 1964. Initially de jure abolition was restricted to murder only sanctioning capital punishment for treason but this position was also later on transformed in 1998 with complete abolition of death penalty.[23] The step taken by U.K. was significant because it challenged the relevance of death sentence in commonwealth states as they sowed the seed of death penalty in these countries. U.K. has now also become a key player striving towards abolition of death penalty in the world. It has become a torch bearer for concepts of greater freedom and abolition of death penalty worldwide. Prior to 1964, U.K. sanctioned capital punishment for serious offences especially treason and murder. Execution of the wrongdoer has been present within the system since ages. There has been no point in British history where capital punishment was prevented. Until recently when the ideals of freedom became more vocal there were minimal restriction in executing offenders of serious crimes. [24]

The major reason for abolition of death penalty in Britain was public outrage. Execution of innocent people led to an outcry amongst all sections of society calling for abolition of this archaic practice. The official abolition of capital punishment came in Britain after realization that execution of people is bane rather than a boon. Though there had been attempts made for abolition prior to 1965 but they eventually failed as they could not grab much attention as deserved.[25] A significant step in British history which stirred the process of abolition was election of Labour party in 1945 whose majority members were in support for this cause. The issue picked up momentum which helped in giving up death penalty.[26]

Major reason for public outrage came from decisions which took lives of two innocents in name of capital punishment. Timothy Evans and Derek Bentley are the two cases which surfaced miscarriage of justice before the public. In both these cases judiciary failed to ensure justice and erroneously hanged two people who did not deserve it.[27]Hanging of Evans for killing his wife and daughter became controversial when 10 women dead bodies were found in an area shared by Evan with his neighbor John Christie. Throughout his trial he was pointing at his neighbor for the murders of his wife and daughter. But his arguments were dismissed and eventually he was put to death. But conviction of John Christie for the killings of women found dead in that are makes it clear that he was in turn responsible for deaths of Evans wife and daughter. Another judicial miscarriage which attracted not just eyeballs but also international criticism was when Derek Bentley was hanged for shooting a police officer, who though had not shot him, himself but was accomplice with the person who shot the officer. His friend who was accomplice was a minor at the time and hence he was hanged in place of the minor. This judgment came as a death blow to criminal justice administration of U.K. These incidents had the effect of losing faith in the world’s greatest justice system.

The last execution in U.K. of a woman took place in 1955 who was hanged for murdered of her boyfriend. Ruth Ellis killed her boyfriend in rage because of his violent nature. Though presence of murder was unmistakable in this case but element of rage was a mitigating factor and death penalty could have been avoided.[28] The last people to be put to gallows in U.K. were two men, Peter Anthony Allen and Gwynne Owen Evans. Both were hanged in 1964 for bludgeoning leading to death of a man. This was the last execution witnessed in U.K. In 1965, the Murder (Abolition of the Death Penalty) Act was promulgated which abolished death penalty for murder. Initially the Act was executed for a period of 5 five years after which it was made permanent. This step towards abolition came in form of a private member bill which was introduced by Sydney Silverman who was a Labor party leader. He had vehemently opposed capital punishment and fought for various noble causes. The credit of abolition of death penalty in U.K. can be attributed to him for his continuous efforts. In 1969 abolition of death sentence for murder became permanent finding its relevance even in today’s scenario.

After abolition of capital punishment for murder, U.K. went forward towards total abolition including for offence of treason, piracy with violence in 1998. The Criminal Justice Bill 1998 was passed for abolition of death penalty for treason and piracy with violence. [29] Now with Crime and Disorder Act, 1998 the maximum punishment for these offences is imprisonment for life. Post this monumental step another significant step taken by British Government was signing the 6th Protocol of European Convention of Human Rights[30]. The Protocol was for recognition of human rights and abolition of death penalty from the entire region. British government signed this protocol which eventually was seen as a formal declaration of becoming a death penalty free zone. In similar light death sentence also got abolished in Northern Ireland for many offences including murder in 1973. It was permanently removed from all statutes in 1990.[31] Today U.K. has become a staunch supporter of abolition of death sentence in all circumstances. It has also called for other states to move in this direction and adopt a moratorium on execution of capital punishment. They supported the UN General Assembly resolution calling out for abolition of death penalty in all member states. This was a stepping stone for all commonwealth members as they too having similar penal codes and jurisprudence called out for abolishing execution of culprits.

3.2 Canada on Death Penalty

Another country, member of Commonwealth which proceeded towards abolition of death penalty is Canada. Canada had been a British colony for a long period time, during colonization death penalty was practiced and the only mode for execution sanctioned was hanging. The movement towards abolition began in post Second World War. There was a change in dynamics of legal thinkers and scholars. Advent of liberal spirit helped in stirring the process towards ending this form of punishment. Another major reason for abolition was wrongful executions which gathered media attention. The need to reform British laws was also felt during this period which resulted in re consideration of capital punishment. The process towards abolition began with restricting offences punishable with death sentence. There were three offences for which death sentence was sanctioned- murder, rape and treason. For murder there was mandatory death punishment. In a progressive step rape was eliminated from death penalty laws in 1954. A major amendment in criminal law came in 1961 wherein murder was divided in capital and non capital offences. Also capital punishment for juveniles was abolished. In case of murder only those murders which were planned were to face capital punishment. The reforms taking place in Canada were inspired by those taking place in UK. The last execution in Canada took place in 1962, where Arthur Lucas and Robert Turpin were awarded death penalty for planned murder of police officers. Thereafter all the death sentences were commuted to life imprisonment.[32]

In 1967, Canada passed a legislation introducing a moratorium on death penalty for 5 years. The moratorium was put for all common law offences leaving murder of police or prison guard as exceptions. De jure abolition was effected with enactment of C-84 Bill in 1976. The Bill proscribes abolition of death penalty for all offences except certain military offences. The Bill was passed under the leadership of Prime Minister Pierre Trudeau. He vehemently argued for abolition of death sentence as it fails to pass the test of deterrence. Also the wrongful executions alarmed the Canadian government. Subsequently in 1998 death penalty was completely eliminated by abolition in cases of military offence.[33] This liberated Canada from clutches of lethal practice of death penalty. Today Canada is a death free zone, a flag bearer for abolition of capital punishment. The position of Canada on death penalty has become quite stringent over a period of time. In 2001, the highest court of the country, Supreme Court held unanimously that extradition of individual who is likely to face death sentence is contrary to Section 7 of Canadian Charter of Rights and Freedoms. It was observed that surrendering in such cases would be violative of “fundamental justice”. This judgment has made Canadian position of abolition even stronger making it difficult for nations to extradite for capital offences.

3.3 Australia on Death Penalty

Commonwealth of Australia another member of British Commonwealth has abolished capital punishment in all its parts. In Australia the movement of abolition was bifurcated as different jurisdictions abolished capital punishments at different points of time.  The first one to do so was Queensland in 1922. After several years another part abolishing death sentence was Tasmania in 1968. Thereafter a movement began towards abolition. The federal legislation for abolition was passed in 1973, The Commonwealth Death Penalty Abolition Act 1973. However, The Act did not prevent states from exercising power to execute person under the state laws. By 1984 all states had abolished death penalty from their legislatures.[34] To re emphasize its position on death penalty, Australia passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition Act), 2010. The legislation prevents re introduction of capital punishment in Australian system. The step was taken to repudiate introduction of death sentence in future. Australian journey towards abolition was similar to that of Canada as both these countries did not completely give up on death sentence altogether at once. There were steps towards absolute abolition. Both these countries derived their penal laws from Colonialism and after the end of Second World War they realized the need to move towards liberal ethos for uplifting human dignity.[35] Australia’s abolition was majorly because of international protest for putting an end to execution. Another positive step taken by Australia to show its allegiance to policy of no execution was when it became party to Second Optional Protocol of International Covenant on Civil and Political Rights. Australia has been an abolitionist since 1984 and has continued to re affirm its position by various representations. Also Australian law like Canadian law does not permit extradition of an individual if he was to face gallows in the country seeking to extradite the individual. A special undertaking has to be given by country requesting to extradite that the individual will not face execution. This has made Australian position on death penalty even fiercer.[36]

  • Cyprus, Kiribati, Mauritius and Namibia on Death Penalty

 The strong commitment has made it a key international player to look up when issue of abolition comes. States retaining its position can follow the path Australia took for abolition to make sure once this barbaric practice is abolished it does not crawl back into the system. Australia, Canada, and U.K. are diverse nations with progressive approach they all have stated belief in system of justice and liberty of mankind which made them abolish centuries old practice. Apart from these big players several small countries which are commonwealth members have also abolished death sentence. It includes Cyprus, Kiribati, Mauritius and Namibia. These states may be small in geographical era but have a diverse population. All these former colonies have abolished death penalty.[37]

4. Abolitionist in practice

Apart from de jure abolition there are countries which have retained death penalty in their statutes but have not practiced it. It includes Maldives, Nauru, Swaziland, Sri Lanka and Tonga. These former British colonies have not removed death penalty from their penal laws but have refrained in practicing. Executions in these states have not been taken place for a long time. It can be accessed that out of 53 Commonwealth states, 25 have either abolished it in law or in practice, while 28 states remain retentionists.[38] This shows that there is a trend towards abolition among Commonwealth states to give away primitive Imperial laws. The states which have retaining death penalty are battling to defend their position amidst contrary world position on the issue. There have been debates and consideration for abolition in these parts but their reluctance lies in losing a deterrent punishment.[39]

5. Retentionist of Death Penalty

The countries which have heavily relied on capital punishment within Commonwealth members are Bangladesh, India, Nigeria, Pakistan and Singapore. Though India has lower execution states but there are several legislations proscribing death penalty. Caribbean countries have also suffered from international criticism for not abolishing capital punishment from their system. It can be seen that these countries are developing nations and have high crime rate which have infiltrated fear of losing a deterrent punishment. These countries have a large population and struggling with economic burdens. They have held to Colonial laws for penalizing the convict with gravest punishment by putting him to gallows. Many of these countries like Pakistan, Bangladesh, Nigeria and Caribbean countries have failed to recognize rights of people. Issues of human rights violations in these countries have surfaced time and again. Pakistan has been one of the countries with highest human rights violations.[40] Bangladesh has also been accused of many human rights violation[41], it was reported to be third in ranking for imposing capital punishment in the world. It can be observed that there technical difficulties in abolishing death penalty from these states.[42]

5.1 Singapore on Death Penalty

Other Asian countries which retained death penalty on foundation of British laws are Singapore and Malaysia. Singapore contains mandatory death sentence provisions. Singaporean law sanctions death penalty under Penal code, Arms offences Act, Kidnapping Act and the most controversial Misuse of Drugs Act. Under Misuse of drugs Act there is mandatory death sentence provided to the offender.[43] In Malaysia also there are various offences which attract death penalty. Similar to Singaporean law Malaysian law also consists offences for which mandatory death sentence is sanctioned include drug trafficking, kidnapping, murder, etc.[44] Malaysia is one of the highest users of death penalty in the world.[45] The ongoing debate for abolition can be seen in both these nations as international agencies like United Nations are constantly urging its members to put an end to awarding capital punishment. Provisions for mandatory death penalty are severely criticized as no substitute has been provided. There have been active executions in drug related matters in both these countries. Efforts are being made by the international community to pressure these countries to move towards abolition. U.K. has made attempts and urged Commonwealth states to take steps towards abolition. It has also taken up of charge to create a world where application of death sentence does not exist.

5.2 India on Death Penalty

India a former British colony, heavily impacted by British law enacted its legislation which mirrored the laws prevailing in U.K. But despite change in position of U.K. on death penalty, India continues to retain this punishment. The country sanctions death penalty in “rarest of rare” cases after looking into aggravating and mitigating factors. There is no mandatory capital punishment provision under the Indian legislature, though it existed in past but it was declared unconstitutional, striking it out from the statute. The execution rate remains low but there are several legislations which allow awarding death sentence to the convict. India has been a progressive nation but it has unequivocally refused to accept abolition. The ongoing debates in the nation have helped it move forward and the rate of execution is not as high as its neighbor, Pakistan and Bangladesh.[46] A movement towards abolition can be felt in the sense that there are several agencies that have raised their voice against application of death sentence and a county recognizing human dignity there are high possibilities of moving towards abolition.

Asian Commonwealth countries have showed a regressive nature in accepting global trend towards abolition of capital punishment. Most Asian states have a strong belief in deterrence theory which enables them to practice this form of punishment.[47]

5.3 Caribbean countries on Death Penalty

The Caribbean countries have been put in criteria 1 of U.K. for active steps towards abolition. Most countries in Caribbean region have retained capital punishment with support of general public. U.K. under its HMG, Death Penalty Strategy, 2011 has initiated plans to restrict use of judicial executions through its agencies.[48]

From above discussion it can be observed that there are countries which have come forward and abolished death penalty whereas some are actively on the part of abolition and others still stuck in belief of retention. It is undeniable that progress can be seen in all Commonwealth countries from their positions in the past.[49] The ethos of human dignity has caused uproar in almost all Commonwealth states to rethink their position of retention.[50] Moreover, these states which have derived their legal principles from colonization call for re evaluation of a primitive archaic law. British rule has always been supportive of human dignity and wellbeing, the great charter Magna Carta has spread the principles of liberty all across the globe. The union of Commonwealth states has been to recognize foundational values of human existence. The active path taken by U.K. is an example for all Commonwealth states to review their laws and adjust according to growing needs of society instead of holding back to an age old practice. The foundation of death penalty has shaken as the bearer itself has given up on this form of punishment. British government has been active in acknowledging the ill effects of carrying out executions along with how they infringed the guarantees on which the entire system was based.[51]

6. Steps towards abolition

British Commonwealth countries who have gained independence from the world’s largest empire are progressive nations. The global trend towards abolition of death penalty is a much debated issue; the members of Commonwealth seem to be divided on this topic. The countries have shown progress by taking appropriate steps to ensure justice which can be seen to move in direction of abolition. For some the movement may be slow but it can definitely be felt. Commonwealth is currently lagging behind the global trend of abolition but their growth cannot be ignored. There is a long way to absolute abolition but with growing public distrust and international pressure beneficial changes are being brought in these states. The United Kingdom has actively urged members of Commonwealth to move towards abolition. It has also introduced an initiative, Her Majesty’s Government (HMG) Strategy for Abolition of Death Penalty 2010- 2015 to stir the process of abolition within Commonwealth countries. There is a need to take active steps by the developed countries of Commonwealth states to urge the retentionist states towards abolition. Currently half the UN members who have expressed their dissent on abolition of capital punishment belong to Commonwealth countries.[52] Majorly Asian Commonwealth countries have maintained their stands on non abolition including Bangladesh, India, and Pakistan. British Commonwealth association can play a pivotal role in transition towards abolition by admonishing its members to take positive steps towards abolition.

7. Dichotomy between death penalty and Human rights in case of extradition

In contemporary times, the practice of abolition of capital punishment has entered into the domain of international human rights law.  Extradition in case of capital punishment is a major cause of diplomatic controversy. The abolitionists are reluctant to return persons to nations where there is possibility of putting that person on death trial. Many times abolitionist states refuse extradition unless the requesting state gives them assurance that death penalty will not be imposed on the fugitive.[53] This leads to a pertinent issue regarding human rights on one end and capital punishment and extradition on the other end. 

In support of this movement, Article 19 of the Charter of Fundamental Rights of the European Union reiterates: “No one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”.[54]

The dichotomy between human rights law and death penalty represents an obvious hurdle for extradition. As most states who are requested state refuse to grant extradition to an offender on which death penalty may be imposed if extradited.

7.1 The London Scheme for extradition within the Commonwealth [55]

The London Scheme for extradition within the Commonwealth[56] encapsulates provisions regarding extradition from the Commonwealth country to a Commonwealth country.[57] This is a key international instrument dealing with provisions of extradition in Commonwealth nations.  The scheme provides for general guidelines regarding the procedure of extradition and offences for which extradition may be granted. The scheme permits discretionary grounds for refusal of extradition in certain cases. And in case of death penalty the requested state has the right to refuse extradition where the offence committed is not punishable by death in its legal system.[58] The dichotomy existing between death penalty and human rights acts as a possible dead lock in decisions regarding extraditions. The conflicting views of requesting and requested state on subject matter of death penalty leads to either refusal of extradition or assurance that death penalty will not be imposed. There is an immediate need to reconcile the complementary and competing goals of national security and protection of human rights of the accused in case of extradition for execution or trial of death penalty. The London scheme allows the state to refuse extradition of fugitives thereby giving primacy to human rights and with most states becoming abolitionist de jure gives an overall impression of upholding values of international human rights.

There have been many cases in which the abolitionist commonwealth state have refused to grant extradition where there was possibility of putting the person on death row. In case of Soering v. the United Kingdom[59]where the applicant was a German national detained in England pending extradition to United State of America. The applicant was to face charges of two murders committed in Commonwealth of Virgina in March 1985. The two murdered were parents of the applicant’s girlfriend. He maintained in case he is extradited to U.S.A it would be violative of Article 3 of ECHR as the same promulgates prohibition of torture.[60] The European Court of Human rights reached a conclusion by unanimously holding that Article 3 of ECHR would be violated if Soering was extradited to USA.

In another case Judge v. Canada, the Human Rights Committee found Canada guilty of violating Article 6(1) of International Covenant on Civil and Political Rights (ICCPR) by deporting Roger Judge to U.S.A. to face death sentence.[61] The Committee reached a conclusion and stated that when an abolitionist state deports a person to a retentionist state without assurance that death sentence will not be carried it is an absolute violation of Article 6 of ICCPR which protects a person’s inherent right to life.[62]

Therefore it may be concluded that the impending controversy between death penalty and human rights acts as a hurdle in cases of extradition. But with increasing realization for protection of human rights states who are abolitionists have been firm on their ground for non extradition for trial or execution of death sentence. Moreover the Commonwealth countries in the London Scheme have kept a discretionary clause which allows state to refuse granting extradition in cases of death penalty. Though there are still certain parts which have retained death penalty but the rate of execution has gone down considerably. In case of extradition the retentionist state needs to assure the abolitionist state that the fugitive will not be subjected to death sentence or execution of same.

8. Conclusion

Abolition of capital punishment in United Kingdom has acted as a catalyst in former colonies that have retained the British legacy of upholding death penalty for various offences. The process of transition remains slow but the dynamics has certainly changed after prompt steps which have been taken by U.K. in urging other states to move in the direction of abolition. Asian members of Commonwealth have remained in dilemma and are not willing to give up on this deterrent form of punishment. Despite their reluctance the debate to abolish capital punishment remains ignited reflecting a sense of contradiction from human rights agencies driving the process towards abolition. Also the dichotomy between death penalty and human rights in case of extradition has put human rights over barbaric punishments. This in turn acts as a compelling reason for retentionists to give up capital punishment and settle for a more humane punishment.


[1] Ban Ki-Moon, United Nations Secretary-General, 3 July 2012, https://www.amnesty.org/download/Documents/20000/amr050012012en.pdf.

[2] Death Penalty in 2018: Facts and Figures, Amnesty International, https://www.amnesty.org/en/latest/news/2019/04/death-penalty-facts-and-figures-2018/.

[3] 10 Greatest Empires in the History of World, Smashing Lists, https://www.smashinglists.com/top-10-greatest-empires-in-the-history-of-world/.

[4] Robert Johnson, “The 10 Greatest Empires in the History of the World”, Business Insider, Oct 1, 2011, https://www.businessinsider.com.au/the-10-greatest-empires-in-history-2011-9#1-the-british-empire-was-the-largest-empire-the-world-has-ever-seen-10.

[5] Daniel Howden, The Big Question: What is the Commonwealth’s role, and is it relevant to global politics?, Independent, Nov 26, 2009, https://www.independent.co.uk/news/world/politics/the-big-question-what-is-the-commonwealths-role-and-is-it-relevant-to-global-politics-1827478.html.

[6] Ming K Chan, “The Imperfect Legacy : Defects in British Legal system in Colonial Hong Kong”, 18(1), University of Pennsylvania Journal of International Law, 133(2014), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1422&context=jil.

[7] Clarence H. Patrick, “The Status of Capital Punishment: A World Perspective”, 56, Journal of Criminal Law and Criminology, 410 (1965), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=5328&context=jclc.

[8] Our History, The Commonwealth, http://thecommonwealth.org/our-history.

[9]Death Penalty Database, Cornell Centre on Death Penalty Worldwide, Cornell  Law School, https://www.deathpenaltyworldwide.org/country-search-post.cfm?139-9chk=on&hideinfo=on.

[10]David Kaner,The Death penalty is a commonwealth problem, Open Democracy, Jul 23,2015,  https://www.opendemocracy.net/en/openglobalrights-openpage/death-penalty-is-commonwealth-problem/ .

[11] Charles Duff, The History of Hanging, Historic UK, https://www.historic-uk.com/HistoryUK/HistoryofBritain/The-Art-of-Hanging/.

[12]Richard H. Helmholz, “Magna Carta and the Law of Nature”, 62, Loy. L. Rev., 869 (2016), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12656&context=journal_articles.

[13] Daniel Hannan, “How Britain invented freedom – and why we need to save it now”, The Spectator, Nov 23, 2013. https://www.spectator.co.uk/2013/11/how-we-invented-freedom/.

[14] Samantha Singh, The Modern Legislative Impact of British Imperialism within the Commonwealth, Medium, Sep 13, 2014, https://medium.com/@samanthasingh/the-modern-legislative-impact-of-british-imperialism-within-the-commonwealth-26c5bab96f83.

[15] Fundamental British values, Total People, https://www.totalpeople.co.uk/british-values.

[16] ROGER HOOD & CAROLYN HOOD, DEATH PENALTY : A WORLDWIDE PERSPECTIVE, 404 (2008).

[17] Five reasons to abolish death penalty, Amnesty International (2018), https://www.amnesty.org.au/5-reasons-abolish-death-penalty/.

[18] Arbitrariness and the Death Penalty, Death Penalty Information Center, https://deathpenaltyinfo.org/files/pdf/ArbitrarinessandtheDP.pdf.

[19]Tim Lambert, A history of Death Penalty in the U.K., Local Histories, http://www.localhistories.org/capital.html.

[20] Andrew S. Thompson, “Uneasy Abolitionists: Canada, the Death Penalty, and the Importance of International Norms”, 1962–2005, 42 (3), Journal of Canadian Studies, 172, 175 (2008). http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.690.9707&rep=rep1&type=pdf.

[21] Bill C-84, Criminal Law Amendment Act (No. 2) for abolition of death penalty. The Parliament resorted to “free voting” which allowed members to vote freely according to their own will without showing allegiance to their respective parties. Andrew S. Thompson, “Uneasy Abolitionists: Canada, the Death Penalty, and the Importance of International Norms”, 1962–2005, 42 (3), Journal of Canadian Studies, 172, 175 (2008). Available at  http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.690.9707&rep=rep1&type=pdf.

[22] Julian B. Knowles QC, The Abolition of the Death Penalty in the United Kingdom, The Death Penalty Project (2015), http://www.deathpenaltyproject.org/wp-content/uploads/2015/11/DPP-50-Years-on-pp1-68-1.pdf.

[23] Nisha Lilia Diu, “The End Of The Death Penalty”, The Telegraphy, Aug 13, 2014, https://www.telegraph.co.uk/lifestyle/saturday-magazine/11029262/Britains-Last-Hangings.html.

[24] Oliver Pickup, “The History Of The Death Penalty”, Racounter,  Aug 31, 2017, https://www.raconteur.net/current-affairs/the-history-of-the-death-penalty.

[25] Attempts made by Howard League in 1923- an association for penal reforms, advocated for humane treatment of prisoners and also called for abolition of death penalty. Thereafter, their views were supported by National Council for Abolition of Death Penalty in 1925. The process picked up momentum when the Labour party in 1927 in its campaign supported abolition of death penalty. But all these attempts were in vain even after a parliamentary debate over the issue as there were not enough supporters to drive the process, A brief history of capital punishment in Britain, History Extra, Mar 27, 2018. https://www.historyextra.com/period/20th-century/a-brief-history-of-capital-punishment-in-britain/.

[26] 1969: MPs vote to abolish hanging, BBC, http://news.bbc.co.uk/onthisday/hi/dates/stories/december/16/newsid_3258000/3258437.stm.

[27] Quin Hoskins, “Miscarriages of Justice: Where It Was Not Just Freedom at Stake!” LS Journal, Jan 1, 201 .,https://www.legalsecretaryjournal.com/miscarriages_of_justice_where_it_was_not_just_freedom_at_stake

[28] Duncan Campbell, “Ruth Ellis: The Murder Case We Can’t Forget”, The Guardian, Mar 12, 2018. https://www.theguardian.com/uk-news/2018/mar/12/ruth-ellis-files-bbc-documentary-murder-case-cant-let-go.

[29] Timeline of Capital Punishment in Britain, http://www.capitalpunishmentuk.org/timeline.html.

[30] Protocol No. 6 to The Convention for Protection of Human Rights and Fundamental freedoms concerning abolition of Death Penalty, 1983,  https://www.echr.coe.int/Documents/Library_Collection_P6_ETS114E_ENG.pdf.

[31] Murder (Abolition of Death Penalty) Act 1965: 50 Years, House of Lords. file:///C:/Users/MY/Downloads/LIF-2015-0044.pdf.

[32] Susan Munroe, History of Capital Punishment in Canada, Thought Co, Mar 8, 2017, https://www.thoughtco.com/history-of-capital-punishment-in-canada-508141.

[33] “Pathways to Abolition of the Death Penalty”, Cornell Law School, June 2016. https://www.deathpenaltyworldwide.org/pdf/pathways-english.pdf.

[34] Barry York, Capital Punishment in Australia, National Library of Australia. https://www.nla.gov.au/unbound/capital-punishment-in-australia.  

[35] Jo Lennan and George Williams, “The Death Penalty in Australian Law”, 34(659) Sydney Law Review, 2012. http://classic.austlii.edu.au/au/journals/SydLawRw/2012/31.pdf.

[36]Dr Daniel Pascoe, Socio-Political Determinants of the Death Penalty and Australia’s Foreign Policy, City University of Hong Kong.  file:///C:/Users/MY/Downloads/Submission%2019%20-%20Daniel%20Pascoe%20(1).pdf.

[37]The Death Penalty around the World, France Diplomatie.  https://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/death-penalty/the-death-penalty-around-the-world/.

[38]States with and without the death penalty, Death Penalty Information Center,  Nov 9, 2016, https://deathpenaltyinfo.org/states-and-without-death-penalty.

[39] Sandra Babcock, The Global Debate on the Death Penalty, 34(2), American Bar Association, https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol34_2007/spring2007/irr_hr_hr_spring07_babcospr07.html.

[40] Adam Withnall, “Amnesty International Reveals The 10 Worst Attacks On Human Rights Across The World Last Year”, Independent, Feb 24, 2016.https://www.independent.co.uk/news/world/politics/amnesty-international-reveals-the-10-worst-attacks-on-human-rights-across-the-world-last-year-a6892911.html.

[41] Bangladesh events of 2017, HRW. Available at https://www.hrw.org/world-report/2018/country-chapters/bangladesh.

[42] Nipu Roy, “Bangladesh 3rd in death penalty”, Dhaka Tribune, Apr 7, 2016.  https://www.dhakatribune.com/bangladesh/2016/04/07/report-bangladesh-3rd-death-penalty/.

[43] Nipu Roy,  Bangladesh 3rd in death penalty, Dhaka Tribune, Apr 7, 2016, https://www.dhakatribune.com/bangladesh/2016/04/07/report-bangladesh-3rd-death-penalty/.

[44]Salleh Buang, An end to mandatory death penalty?, NST, Aug 17, 2017, https://www.nst.com.my/opinion/columnists/2017/08/268727/end-mandatory-death-penalty.

[45] Malaysia ranked tenth in use of death penalty, says Amnesty International, The Star, Apr 11, 2017,
https://www.thestar.com.my/news/nation/2017/04/11/malaysia-ranked-tenth-in-use-of-death-penalty-says-amnesty-international/#zBWpkPZ6tP10wZT8.99.

[46] Soutik Biswas, Should India abolish the death penalty? , BBC News, Aug 29, 2012, https://www.bbc.com/news/world-asia-india-19410108.

[47] CONFRONTING CAPITAL PUNISHMENT IN ASIA, HUMAN RIGHTS, POLITICS, AND PUBLIC OPINION (ed. Roger Hood &Surya Dev), 2013.

[48] HMG Strategy for Abolition of the Death Penalty 2010-2015, Foreign & Commonwealth Office, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/35448/death-penalty-strategy-oct-11-15.pdf.

[49] Death Penalty Statistics Country by Country, The Guardian, https://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world.

[50] Jeannine Bringmann, Calling for Commonwealth Consensus on Capital Punishment, The Royal Commonwealth Society, Aug 8, 2016, https://thercs.org/news-and-blogs/blogs/calling-for-a-commonwealth-consensus-on-capital-punishment/.

[51] William Schabas, Human Rights, capital Punishment and the Commonwealth: still behind the curve, Commonwealth Advisory Bureau (2012), https://mail.google.com/mail/u/0/#inbox/163ff93210355a99?projector=1&messagePartId=0.1.1.

[52] David Kaner, The Death Penalty is a Commonwealth Problem, Open Global Rights, July 23, 2015, https://www.openglobalrights.org/the-death-penalty-is-a-commonwealth-problem/.

[53] Vesna Stefanovska, Right to Life vs. Capital Punishment in Extradition Proceedings: a Legal Aspect, International Journal of Scientific & Engineering Research, Volume 7, Issue 1, January-2016 https://pdfs.semanticscholar.org/d2e2/b48d114f5570a123d370d6bf70519d5e11d4.pdf.

[54] Charter of Fundamental Rights of European Union, https://www.europarl.europa.eu/charter/pdf/text_en.pdf.

[55] The London Scheme for extradition within Commonwealth, https://www.oas.org/juridico/english/mesicic3_jam_london.pdf

[56] The London Scheme for Extradition was adopted originally in 1966 and has been subjected to amendments, the last being in 2002.

[57]Supra note 55.

[58] Clause 15, The London Scheme for extradition in Commonwealth, https://thecommonwealth.org/sites/default/files/key_reform_pdfs/P15370_13_ROL_Schemes_Int_Cooperation.pdf.

[59] Application no. 14038/88, The European Court of Human Rights, https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22695496%22],%22itemid%22:[%22001-57619%22]}.

[60]  European Convention on Human Rights, https://www.echr.coe.int/Documents/Convention_ENG.pdf.

[61] Vesna, Supra note 53.

[62]International Covenant on Civil and Political Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.