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Kuros
Joined: 27 Apr 2004
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 Posted: Sat Aug 04, 2012 6:23 am Post subject: |
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| On the other hand wrote: |
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| I am not pleased with how the U.S. "rolled" when it tortured people, and I want other nations -- especially those whose citizens were victims -- to take issue with it; regarding Chinese inhumanities, likewise. |
But then what do you think about those Canadians who are demanding that their government plead for clemency on behalf of Ronald Smith, the death-row convict I mentioned earlier? Because there are those(albeit not in the current Canadian government) who think that capital punishment is an inhumanity on par with torture.
I suppose my question above can serve as a reply to Kuros as well, since the implied point is that there is no agreed-upon parameter about what constitutes "fundamental human rights existing independent of the sovereign state", even as we all pay lip service to the basic idea. |
Okay. So I did some research and the Ronald Allen Smith situation is revealing.
In 2007, the Canadian Tories announced there would be no more clemency appeals for Canadians on Death Row in the U.S.
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Liberal MP Irwin Cotler � a former justice minister and human-rights lawyer � says he was shocked by the Conservative announcement.
"We're not asking that [Smith] be returned to Canada," Cotler said.
"We're not saying he didn't get a fair trial. We are saying that on the issue of capital punishment, this country has a law, this country has a policy, this country has a principle domestically and internationally. We will not support capital punishment. Fini.
. . .
Liberals also noted that Canadian law prevents the extradition of an American to a state that uses capital punishment. |
In 2001, the Supreme Court decided the case of United States v. Burns. There, the three Canadian respondents faced extradition to the U.S. and possible death penalty charges.
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| The respondents are each wanted on three counts of aggravated first degree murder in the State of Washington. If found guilty, they will face either the death penalty or life in prison without the possibility of parole. The respondents are both Canadian citizens and were 18 years old when the father, mother and sister of the respondent Rafay were found bludgeoned to death in their home in Bellevue, Washington, in July 1994. |
The United States wanted their unconditional extradition.
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| United States authorities commenced proceedings to extradite the respondents to the State of Washington for trial. The Minister of Justice for Canada, after evaluating the respondents� particular circumstances, including their age and their Canadian nationality, ordered their extradition pursuant to s. 25 of the Extradition Act without seeking assurances from the United States under Article 6 of the extradition treaty between the two countries that the death penalty would not be imposed, or, if imposed, would not be carried out. The British Columbia Court of Appeal, in a majority decision, ruled that the unconditional extradition order would violate the mobility rights of the respondents under s. 6(1) of the Canadian Charter of Rights and Freedoms. The Court of Appeal therefore set aside the Minister�s decision and directed him to seek assurances as a condition of surrender. |
The Canadian Supreme Court recognized four factors favoring unconditional extradition, one of which sounds very similar to the principle you have already expressed.
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| In this case, it is said that a number of factors favour extradition without assurances: (1) individuals accused of a crime should be brought to trial to determine the truth of the charges, the concern being that if assurances are sought and refused, the Canadian government could face the possibility that the respondents might avoid a trial altogether; (2) justice is best served by a trial in the jurisdiction where the crime was allegedly committed and the harmful impact felt; (3) individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents; and (4) extradition is based on the principles of comity and fairness to other cooperating states in rendering mutual assistance in bringing fugitives to justice, subject to the principle that the fugitive must be able to receive a fair trial in the requesting state. |
The Canadian Supreme Court explained why Canada has rejected the death penalty.
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| Capital punishment engages the underlying values of the prohibition against cruel and unusual punishment. It is final and irreversible. Its imposition has been described as arbitrary and its deterrent value has been doubted. Second, at the international level, the abolition of the death penalty has emerged as a major Canadian initiative and reflects a concern increasingly shared by most of the world�s democracies. Canada�s support of international initiatives opposing extradition without assurances, combined with its international advocacy of the abolition of the death penalty itself, leads to the conclusion that in the Canadian view of fundamental justice, capital punishment is unjust and should be stopped. While the evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty, it does show significant movement towards acceptance internationally of a principle of fundamental justice Canada has already adopted internally -- namely, the abolition of capital punishment. International experience thus confirms the validity of concerns expressed in the Canadian Parliament about capital punishment. It also shows that a rule requiring that assurances be obtained prior to extradition in death penalty cases not only accords with Canada�s principled advocacy on the international level, but also is consistent with the practice of other countries with which Canada generally invites comparison, apart from the retentionist jurisdictions in the United States. |
Note that the Canadian stance against capital punishment incorporates the very same notion of "fundamental justice" as I have expressed above. Note that this principle has deeper origins than constitutional ones, because the Canadian Charter fails to explicitly prohibit the death penalty.
The Canadian Supreme Court upheld the British Columbian Court of Appeals decision and declared that extradition to the U.S. without assurances would be unconstitutional under the Canadian Charter. Fundamental justice prevailed over the general principle that Canadians should accept local law upon entry into a foreign jurisdiction.
Turning back to the Ronald Allen Smith case, the Tories tried to drop their clemency policy with respect to Ronald Smith, but were frustrated when the Supreme Court ruled that their decision was arbitrary and triggered procedural fairness considerations (A remarkable ruling, btw. In the U.S. the gov't's nonjusticiability argument would have prevailed, and the Executive's discretionary power over international affairs would have empowered a refusal to push clemency with a foreign state. So I am indebted to OTOH for revealing to me contrary authority I might summon to challenge administrative law decisions made here in Kentucky). So the Canadian gov't is stuck, somewhat reluctantly, with seeking clemency for Ronald Allen Smith.
If anything, I agree with the Canadian idea that fundamental justice trumps deference to local law, when the two come into conflict. Obviously, the United States sees things differently: our own Federal prohibition against cruel or unusual punishment only limits capital punishment to crimes where death occurs.
http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution
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| In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. |
There are also special procedural protections for capital cases, including a bifurcated sentencing hearing separate from trial.
But the differing conceptions of fundamental justice, and the varying levels of recognition of natural law, do not undermine fundamental justice itself. Natural law, as a higher and unwritten law, will be less obvious and more open to interpretation.
Personally, I am unsure whether fundamental justice should outright prohibit capital punishment. But like Fox, I oppose the death penalty for a host of reasons (there's an equal protection argument against its application in more than a few cases). But I view these as protections as perhaps extending beyond the scope of natural law.
At any rate, good on the Canadians protesting the capital punishment. Let's hope they prevail. Although I'm not sure the current Canadian gov't cares, and I'm certain that Ottawa is more focused on political objectives and point-scoring than Ronald Allen Smith's rights. |
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