Nguyen Tuong Van - Australia cannot stand idly by

The defence team of Melbourne man Nguyen Tuong Van who is on death row in Singapore should be commended for galvanising a considerable degree of public support for their client. With less than two weeks to go before the scheduled execution, it is to be expected that they will be exploring all avenues to save their client.

However, the proposal that Australia should look to the International Court of Justice for assistance is misguided. This course of action would fail. There are two reasons for this. First, the court can only hear the case if both parties consent to it adjudicating the matter. This won’t happen. Singapore (which has the highest per capita use of the death penalty in the world) has nothing to gain by opening up its criminal justice practices to judgment by an international body.

Moreover, even if the court were conferred with jurisdiction to hear the matter, it would almost certainly rule in Singapore’s favour. Despite its futility and obvious cruelty, capital punishment is not unlawful at international law.

There are two basic types of international law: customary law and treaty law. More than 75 nations still impose capital punishment and hence it is indefensible to claim that the prohibition of the death penalty is a norm that is habitually observed out of a sense of obligation in the world setting. Further, Singapore has not ratified any international instrument which prohibits it from executing offenders who have been found guilty of an offence.

Yet the Australian Government cannot stand idly by and allow the Singaporean criminal justice system to take its inevitable tragic course.

To this end, it is important to note that considerations of moral relativity and national sovereignty should not mute the voice of the Australian Government. Moral relatively is illusory. All people are entitled to have their fundamental interests (life, liberty and physical integrity) at least minimally protected. That’s why we are witnessing a slow, but sure, convergence in fundamental moral principles across the globe.

The notion of national sovereignty has, fortunately, been beaten down by the twin forces of globalisation and the human rights movement so that it can (no) longer be invoked as an impregnable shield to justify draconian laws - a lesson that the likes of Slobodan Milosevic and Saddam Hussein have learned the hard way.

So what is the best avenue available to Australia to try to convince Singapore to grant clemency to Mr Nguyen?

There are three basic ways to get people or institutions to do what you want. Force is the crudest method but is obviously not an alternative. Even threats of imposing tangible sanctions on Singapore, such as limiting trade activities, are not likely to be effective, given our relatively minnow economic status on the world stage.

The second method of persuasion is by legitimising one’s position through the weight of numbers. This is why democracy works so well. But again this is not an option in the international arena.

The final method is the moral force of one’s arguments.

To that end, Australia is hamstrung by the fact that we are only now imploring Singapore to not apply the death penalty. This will, at least initially, have all the hallmarks of an expedient request as opposed to a principled moral stance. A fundamental aspect of all moral judgments is that they are "universalisable". This means that they apply equally to all people. It is indefensible to assert that certain people are more worthy or important than others.

Singapore has executed hundreds of convicted prisoners over the past few years. All these executions were no doubt every bit as tragic, as would be killing Mr Nguyen, yet there was no pressure by Australia to provide clemency to any of these prisoners.

Despite this, we must still continue to make the strongest possible representations to save the life of Mr Nguyen. This can only be done in an atmosphere of rational exchange aimed at advancing the interests of both nations. Insults don’t work - they tend to make people even more entrenched in their position. The prime minister is right that “megaphone” diplomacy is impotent in the international arena. The hanging of Brian Chambers and Kevin Barlow for drug trafficking by Malaysia several years ago shows that.

Diplomacy in this regard involves an element of seeing things from Singapore’s perspective and finding common ground.

This involves acknowledging that we share with Singapore an unyielding desire to eradicate the illicit drug problem and a recognition that drugs cause death and personal destruction to users and other members of the community.

However, at the same time the drug problem must be approached in a manner that is likely to be effective and respects moral values that transcend all cultures.

Although common sense would indicate that executing drug traffickers would deter people from selling drugs, wide-ranging empirical evidence conclusively rebuts this proposition. Countries with capital punishment don’t have lower levels of serious crime and when countries abolish the death penalty, the crime rate does not increase. The greatest deterrent to wrongdoing is not the size of the penalty but the perceived risk of detection. Thus, it must be pointed out the citizens of Singapore are no safer from drugs (trafficking) as a result of capital punishment.

Moreover, a fundamental sentencing principle that should underpin all sentencing systems is the principle of proportionality. This prescribes that the harshness of the penalty should match the severity of the offence. This is violated when the most severe form punishment is imposed for offences which do not constitute the most heinous forms of offending. Drug-trafficking is bad, but clearly crimes such as murder and homicide are far more serious.

Finally it needs to be impressed on the Singapore Government that we all share a common morality and ultimately are unified by a desire to maximise human flourishing where each individual's interest counts equally. The most important interest recognised in this universal moral code is the right to life - violation of this right makes all other rights devoid of meaning. The right to life can only be violated where there is a compelling reason to do so (such as self defence). This is not the situation in the case of capital punishment. No benefit is derived from killing wrongdoers.

Acknowledgement of this will enable Singapore to act as a moral beacon to the many other countries in South-East Asia that execute criminals. A failure to endorse these universal truths is likely to be a source of considerable regret for the government of Singapore in the foreseeable future.

Nguyen’s best chance of a reprieve rests with the Australian Government’s capacity to engage the Singapore Government along such lines. If Australia fails in this exercise, such a cruel blow must not discourage it from continuing to make such representations. We should not wait until the next Australian is placed on death row. All lives count equally - irrespective of where a person happens to be born.