The Execution Of Nguyen Tuong Van
By Sebastian De Brennan
08 January, 2006
Countercurrents.orgThe recent execution of convicted Australian drug trafficker, Nguyen Tuong Van, has forced many to reconsider the rationale of ‘punishment’ in our society.
As last fortnight’s decision by the Governor of California to “terminate” Stanley Tookie Williams brought home, capital punishment is not, like many other topics in the human rights lexicon, an issue of religious versus non-religious, North versus South, East versus West, or Developed versus Non-Developed. In short, capital punishment transcends boundaries and the convenient polarizations at international law, whether formal or informal.
Modern penal policy worldwide has been shaped by a combination of the deterrent, retributive and rehabilitative functions of the law. With the hanging of Nguyen, it is clear that Singapore prioritized the former two functions over that of rehabilitation. In its crudest form, the Singaporean Government was guided by the ancient lex talionis precept of an ‘eye for an eye’, a life for a life (or potentially hundreds of lives from heroin overdoses in this case). For those who subscribe to this Kantian view – and we should not forget that there are many both in Australia and abroad - a young Australian man, now deceased, has received his ‘just deserts’.
In an age where the importance of deterrence and retribution are emphasised (with governments of all persuasions wanting to be seen as ‘tough on crime’) the importance of rehabilitation as a genuine object of the criminal justice system has become increasingly blurred. Issues of this nature go beyond the efficacy and morality of capital punishment, and some difficult questions arise:
Can Australians, as global citizens, conscionably affirm the utility of capital punishment for the ‘Bali Bombers’, yet denounce it for their own? Is punishment inflicted merely to demonstrate the consequences of breaking the law, or is it to reaffirm the fundamental values of society? Is it aimed at deterring the offender and other members of the community from committing similar acts in the future, or is it to protect the public by isolating the offender? Or, as was argued forcefully by many in respect of the 25 year old Nguyen, is it meant to reform the offender?
Nguyen's barrister, Lex Lasry, QC, says his client was a “reformed man”. The irony, he said, was that his client was "thoroughly rehabilitated and now Singapore will kill him".
In a letter to Singapore president S.R. Nathan, Nguyen is said to have found God on death row and accepted responsibility for his actions, finding himself “in deep sorrow for the true victims; the families of those whom (sic) suffer as a result of losing a loved one to drugs”.
Nguyen’s execution reminds us that, for all the claims of globalisation, we do not live in a truly integrated world. Put squarely, Nguyen was found guilty under the national laws of a sovereign nation. Although Australia did consider making representations to the effect that Singapore had contravened International Law before the International Court of Justice (ICJ), the shortcomings of an internationalised legal order were quickly made apparent. Regrettably, Singapore does not recognise the jurisdiction of the ICJ and, accordingly, such a case could not proceed in the absence of its voluntary acceptance of the Court’s competence.
Former governor general of Australia and High Court Judge, Sir William Deane, went so far as to accuse Singapore of breaching international law. His views were echoed by many in the legal, academic and human rights community, but such propositions appeared to rest on shaky ground. Like it or not, one of the first lessons drummed into the international law student at university is the notion that all countries enjoy a 'sovereign equality', which limits greatly the extent to which international law can impinge upon domestic laws and punishments.
This is not to say that Australia - and indeed other nations presented with similar situations – cannot actively pursue diplomatic outcomes, nor continue to advocate against what they perceive to be unpalatable or arcane conceptions of punishment. It is, however, doubtful whether anything further could have been done on this front with respect to Nguyen.
Several appeals for clemency were made by Prime Minister John Howard and the Australian government. Former prime minister, Bob Hawke, made a personal appeal to Singapore.
Pope Benedict XVI, his predecessor Pope John Paul II, a United Nations human rights expert and New Zealand Prime Minister Helen Clark were among others urging Singapore to spare Nguyen.
Australia's Amnesty International parliamentary group presented Singapore's High Commissioner Joseph Koh with petitions from more than 100 parliamentarians and 300 parliamentary staff.Victorian Attorney-General Rob Hulls also took up the fight, hand delivering a letter from Premier Steve Bracks urging a change of heart by the Singapore government.
On the ground, ordinary Australian’s and union workers threatened action against Singapore Airlines, calls were made for the Prime Minister to abandon a cricket match and a Melbourne church held prayer vigils all week before ringing its bell 25 times at the time of Nguyen's execution.
Taken collectively, Nguyen's case presents, yet again, the conundrum of how Australia might seek to exert some influence over legal proceedings in another country; or, put differently, to alter the form of punishment levelled in sovereign nations. This is far from an isolated example – the Corby case, Australian police cooperation resulting in the arrest of the ‘Bali nine’, and the Michelle Leslie saga show the inherent tensions of a legal order which pretends to be universal, but in actual fact is not.
It is perhaps timely to remember that notions of punishment come in many different manifestations. As Australians we have historically had no qualms about emphasising the retributive and deterrent functions of the law over that of rehabilitation, notwithstanding the abolition of capital punishment by the Commonwealth with the Death Penalty Abolition Act (1973).
As Professor Freeland from the School of Law at the University of Western Sydney has noted, while we may all have an obligation to be vigilant and protect, as much as we can, the welfare of our nationals facing trial in other countries, one must always remember that it is the laws and punishment of those countries that will apply.
Even still, it is a sad day for all when capital punishment becomes our society’s recognition of the sanctity of human life.
Sebastian De Brennan has published widely in the field of international law and is principal of De Brennan & Co. Consulting.
