The Fate Of The Death Penalty

By Rosie Slowe

The penalty of capital punishment for serious crimes is an ancient phenomenon. In the past the death penalty has been part of most societies’ justice systems, and its use can be traced back to the beginning of historical records. There are even some indicators that the practice was apparent amongst various primitive tribes.
The presence of the death penalty within Mongolian law can be traced throughout the country’s history. It is mentioned in numerous ancient laws, starting with Ikh Zasag, the significant legal document introduced under Chinggis Khaan. Capital punishment was also present within the Tsaaz Bichig, the 1640 penal document of the Mongol-Oirat, as well as the Khalkh Juram, the code of laws compiled in the 18th century by the Khalkh Khans. The death penalty can also be found in some legal documents of the Ardiin Zasag government.

In 1926, the first Criminal Code of the Mongolian People’s Republic was adopted. It established a statutory basis for the control of crime, and the inclusion of capital punishment within Mongolian law was an essential feature of this. Chapter 11 of the Code addressed ‘measures for the protection of the legal order and of citizens, and for the correction of criminals’. It included the death penalty along with imprisonment and other forms of punishment.
From 1929 until 1987, five revised versions of the Criminal Code were brought in. They all introduced new concepts into the law, with articles of the code being edited or omitted. Nonetheless the fundamental principles underlying the Code remained and the death penalty kept its legal status.
In response to the new constitution, adopted in 1992, an entirely new Mongolian law was introduced through the 2002 Criminal Code. This Code introduced new democratic concepts, yet nonetheless the death penalty was retained as a potential punishment for grave crimes.
The offences that remain liable to a sentence of capital punishment include terrorist acts, sabotage, premeditated and aggressive murder, and aggravated crimes of rape. Under these offences there are 59 crimes that are listed as ‘capital crimes’.
Women can never receive the death penalty as punishment and it cannot be imposed on any man older than 60 or under the age of 18 at the time of committing the crime. Under the second provision of article 53 of the code, executions must be carried out by shooting in the neck. The punishment must also be administered under the supervision of the state but whether or not the convicted person is actually executed remains a state secret, never revealed by the authorities. As executions are carried out in secrecy, the family of the condemned man is not informed of the date of the killing, or the location of the burial.
Officially studies have revealed that judges have increasingly imposed the death penalty as punishment for the most serious crimes. While in the 10 years between 1965 and 1975, only 82 people were sentenced to death. Yet more than 200 men were given this punishment from 1995 to 2005. These statistics show the significant rise in the use of capital punishment following the introduction of the new constitution.
However, after recent developments, which seem to have ended the use of capital punishment in practice, we must address two important questions. First, will the death penalty retain its place embedded in Mongolian law, and secondly, should it?
After the current president, Tsakhiagiin Elbegdorj, was elected in June 2009 he started preventing the use of the death penalty by applying his prerogative of pardon. On January the 14th 2010 he proposed to parliament that the death penalty be struck from Mongolian law and instead be replaced by a sentence of 30 years imprisonment. He announced that he would systematically use his prerogative to pardon all men who had been sentenced to capital punishment. This was a significant and controversial decision. While a number of representatives received his announcement of an executive moratorium with hostility, internationally it received a warm welcome. The president stated eight reasons behind his decision. These included irreparable judicial mistake, the use of capital punishment for political purges throughout Mongolian history, international demands for abolition and the failure of capital punishment to be a deterrent.
Since then, while the death penalty remains in the Mongolian Criminal Code, capital punishment is never applied in practice. Any man subject to execution can apply to the president to pardon him, and the president will always use his prerogative power to stop the punishment being carried out. Nonetheless, if this remained the case, as the death penalty has not been abolished in law, capital punishment could once again be applied in practice if President Elbegdorj fails to be re-elected.
There is another way capital punishment can be erased from legal practice while maintaining its status as an official form of punishment under the Criminal Code. The judiciary could simply refuse to use the death penalty as a form of sentence, resulting in the law being both irrelevant and ineffective.
Nonetheless, on the 5th of January2012, a significant step was taken towards full abolition of capital punishment when a large majority of MPs approved a bill aiming to end the death penalty. The Great Khural passed the bill despite internal resistance to President Elbegdorj‘s abolitionist position. The adopted bill ratifies, without any reservations, the Second Optional Protocol to the ICCPR, therefore indicating that Mongolia is poised to abolish the death penalty completely. All states party to the 1989 Protocol commit to the belief that abolition is essential to enhance human dignity and human rights. Article 1 of the Protocol states that, not only will no-one within a state party to the Protocol be executed, but also that each party state will take the necessary measures to abolish the death penalty within its jurisdiction. Mongolia’s ratification of the Second Optional Protocol is the culmination of President Elbegdorj’s ongoing commitment to abolishing the death penalty in his own country.
The Protocol entered into force on the 13th of June 2012 and Mongolia is now on the brink of full abolition of capital punishment. All that is left to do in order for Mongolia to be rid of the death penalty completely from its jurisdiction is to repeal the criminal laws that provide for it. However, although until the necessary provisions are removed from the national legislation the death penalty remains part of Mongolian law, it appears highly unlikely that Mongolia’s past use of capital punishment will be resumed.
Only time will tell whether the death penalty in Mongolia will be completely and legally ‘killed off’. And while we wait to see what will happen, there are a number of strongly differing views throughout society regarding whether or not this should actually be the country’s course of action.
In contrast to public opinion, 83% of surveyed Mongolian lawyers think it is necessary to have capital punishment. Of those surveyed, 50% of the lawyers questioned also believe that it is not essential to abolish the death penalty having regard to the fact that executions no longer take place in practice.

Below is an interview with Nyamsuren Munkhtuya, a research-fellow at the National Legal Institute, discussing her views on the matter.
-Do you think the death penalty should be eradicated from Mongolian law?
-Yes, I do, because there is already a tendency not to use it and it is an extremely harsh punishment.
-Does the harm it can cause outweigh any benefit it brings as a deterrent for serious crimes?
-Academics’ opinions differ on this matter. While some say we should abolish it others claim we should not. There are some benefits, by implementing it for serious crimes it sets an example to others, but I am still against it. I don’t think it has a place in a modern society. Once we have killed someone we cannot take it back, it is simply too brutal and severe a punishment.
-What about the idea of a life for a life?
-Yes, in history there have been principles that support capital punishment. The Talio Esto-Principle is about how a life can be exchanged for a life. But we now live in a different and modern society. I support societies that value human beings and the right to life.

-Amnesty International has been campaigning extensively for the abolition of the death penalty in Mongolia and has commended the substantial steps the country has now taken. The National Human Rights Commission of Mongolia applauded the governments’ ratification of the Second Optional Protocol. The Commission had been advocating against capital punishment in a number of different ways, such as through its successive recommendations in its annual reports. The commission publicly stated its gratitude to all those who had stood by it in advocating against the death penalty.

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Posted by on Aug 20 2012. Filed under Opinion. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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