Capital punishment comparing vietnamese and singapore criminal law

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Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS Capital Punishment: Comparing Vietnamese and Singapore Criminal Law SUPERVISORS: PROFESSOR NGUYEN NGOC HOA PROFESSOR PER OLE TRASKMAN H ANOI 2009 ACKNOWLEDMENTS I thank my family above all for their love and care; they have all helped me become the person I am today. I thank the Hanoi Law University, the Faculty of Law, University of Lund and the Swedish International Development Cooperation Agancy (Sida) for giving me the opportunity to advance my education. More specifically, I greatly thank all the professors in the Faculty of Law, University of Lund and the Hanoi Law University, who enthusiastically taught me during this course. I especially thank Professor Nguyen Ngoc Hoa and Professor Per Ole Traskman, who were patient in their supervision and supported me as I worked on this thesis. 2 Table of Content Page Acknowledments...................................................................................... 2 Table of Contents................................................................................... 3 Executive Summary ........................................................................ ....... 4 1. Introduction ............................................................................................. 5 1.1 Rational ..................................................................................................... 5 1.2 Research purpose and scope.................................................................... 5 1.3 Statement of the problem......................... ………………………………. 6 1.4 Methodology.............................................................................................. 6 2. An overview of capital punishment 7 2.1 Capital punishment: some questions of theory.......................................... 7 2.2 The international law on capital punishment.......................................... 15 2.3 Trends of regulations on capital punishment in the criminal law of countries ……………………………………………………………….. 20 3 Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law on the death penalty 25 3.1 3.2 Comparing general regulations on capital punishment ..................... ….. 25 31 4. The practice of application the death penalty in Viet Nam and Singapore and recommendations for Viet Nam ……………………. 40 4.1 The practice of application the death penalty in Viet Nam and Singapore……………………………………………………………….. 40 4.2 5 Some recommendations for Viet Nam ..................................................... Conclusion ................................................. ……………………………. 42 44 Table of legal Instruments and Judical Practices …………………… 46 Bibliography …………………………………………………………… 47 Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law regarding the death penalty 3 Executive Summary The question of the death penalty presents some of the most interesting issues in criminal law. It is important to study such legal questions as whether the use of the death penalty is a violation of international law or not? Or what can we do to ensure Vietnamese Criminal Law is in harmony with the laws of other countries and regions on the death penalty? These questions will be studied in this thesis. I review the theories of capital punishment: key notions, features, and purposes and will identify arguments for and against the death penalty. I analyze international law on the death penalty. This part will show how international law does indeed regulate the death penalty I will consider whether international law prohibits the use of the death penalty or not? I examine trends regarding the regulation of capital punishment in the criminal law of other countries. Is the trend towards abolition becoming international customary law or not? I study conditions on the application of the death penalty and exceptions to its use. Of course, I focus on comparing the regulations of the Vietnamese Criminal Law with the regulations of the Singapore Criminal Law on the death penalty in criminal. The thesis examined the situations of application on the death penalty in Viet Nam and Singapore. Moreover, I also try to identify some problems on the application of the death penalty in Viet Nam. Final, my thesis recommends some proposals for reforming Vietnamese Criminal Law on the death with a view to limiting the use of the death penalty in Vietnam. 4 1. 1.1 Introduction Rationale In Vietnam, maintaining the death penalty is regarded as necessary because the situation in respect of crimes is seen as complicated. Almost all those involved in research into and the practice of criminal law support the maintenance of the death penalty, but also feel it should be limited in its scope and use. In the field of legislation the number of regulations that carry the death penalty has reduced by 33% (from 44 Articles in the Penal Code 1985 to 29 Articles in the Penal Code 1999). The scope of application of the death penalty has been narrowed.1 However, the practical application of the death penalty in Viet Nam and the impact of the process of international integration, have raised issues that may entail a need to reform the criminal law so as to limit use of the death penalty and perhaps abolish it entirely in the future. The death penalty has been used a great deal in Southeast Asia but now many countries, such as the Philippines, Laos, Brunei and Cambodia are abolishing the death penalty. The tendencies to maintain and abolish the death penalty seem to be equally balanced in the region. To find out more about the death penalty in Viet Nam it helps to look at the criminal law of a country that also maintains the death penalty, namely, Singapore. The comparison between Vietnamese and Singapore Criminal Law is especially useful because the cultural and social backgrounds of Vietnam and Singapore are similar. By making the comparison, we can better understand the criminal law of Viet Nam, reform it and make its provisions consistent with international law and laws in other countries in the region and elsewhere in the world. 1.2 Research Purpose and Scope The purpose of this thesis is to propose some recommendations for Vietnam as it goes about reforming its criminal law. It will study the theories supporting the death penalty, arguments for and against it and international law on the death penalty. The focus is on comparing the Vietnamese with the Singapore Criminal Law and the international law so far as relates to the death penalty. After this comparison and examination of the practice of the death penalty in Vietnam, this thesis will draw some conclusions. For the provisions of the Vietnamese Criminal Law, we study the Vietnamese Penal Code (1999). For the provisions of the Singapore Criminal Law, we study the Penal Code, the Misuse of Drugs Act, the Arm Offences Act, the Internal Security Act, the Kidnapping Act and the Criminal Procedure Code. For international law, we review international laws and regional agreements on the death penalty. Article 35 of the Vietnamese Penal Code 5 1.3 Statement of the Problem The death penalty has been used commonly in most countries but there are now different opinions on this class of punishment. Since the 18th century the there have been two trends, one for and one against capital punishment. The conflict between those trends is severe and is becoming more and more so. The main questions that arise in this conflict, are (1) should we apply the death penalty at all? (2) If so, how should we use the death penalty? In Vietnam, the process of reforming criminal law is to continue. Questions on the death penalty are of interest. It is important to study such questions as whether the use of the death penalty is a violation of international law or not? Or is Vietnamese Criminal Law is harmonious with the laws of other countries and areas on the death penalty? These questions will be studied in this thesis. It is not easy to deal clearly with the questions. Answers depend on many elements: awareness of the role of capital punishment, cultural values, and specific conditions in each country. To deal with these issues, the thesis considers five questions: first, study the death penalty in theory; second, examine international law on the death penalty; then, examine the trends regarding the death penalty; next, compare Vietnamese Criminal Law with the Singapore Criminal Law on capital punishment; and finally, draw conclusions and propose reform to Vietnamese Criminal Law regarding the death penalty. 1.4 Methodology The main methodologies used in this thesis are logical analysis and the comparative method. Logical analysis is used to identify the concept of the death penalty and its features and to argue for or against the death penalty. The thesis then analyzes provisions of international laws to find out whether they prohibit the use of the death penalty. For this, the method of interpretation was used to find the true purpose of the legal documents studied. This thesis concentrates on the comparative method when compare the regulations of the Vietnamese Criminal Law and those of the Singapore Criminal Law, and of international law on the death penalty. The comparisons focus on the scope of the use of the death penalty, exceptions to the use of the death penalty and capital crimes. The thesis finds differences and similarities between Vietnamese Criminal Law, Singapore Criminal Law and international Law. The thesis tries to explain these differences and similarities. The thesis ends with some conclusions and other remarks. 6 2. 2.1 An Overview of Capital Punishment Capital Punishment: Some Questions of Theory 2.1.1 The Definition of Capital Punishment Capital punishment has existed for many centuries. In ancient times, several Eastern states used capital punishment as can be seen from the Hammurapi Code (Babylon) and the Manu Code (Indian). In the West, it was provided for in the Roman Law of the Twelve Tablets. In medieval times, capital punishment was used commonly in such diverse places as China, Vietnam, the Europena states,2 etc. The death penalty was applied far and wide; it seemed a way to take a just revenge on offenders. In modern times, there has been a major change since the French bourgeois Revolution of 1789. The scope of application of capital punishment was reduced and it was only applied for the most serious crimes. Today, although the worldwide movement towards abolition has proceeded at an increasing pace; it is not only the trend in the world. There are 91 countries which are abolitionists for all crimes, 11 are abolitionists for ordinary crimes, 33 are abolitionist de facto while 62 countries retain the death penalty.3 Although the death penalty has been widely applied, there is no single perspective on the death penalty. According to the US. Supreme Court, it penalizes those convicted of certain classes of crimes by killing them.4 This emphasized the substance of the death penalty: offenders die. The death penalty is a punishment that can take away the life of offenders. Anther view of the death penalty assumes that “the penalty of death for a person convicted of a serious crime, such as intentional murder, is called capital punishment”.5 This concerns both the scope and the consequence of the death penalty it makes clear that there should be some proportionality between offence and penalty. In Vietnam, the Penal Code (1999) does not provide any view regarding the death penalty. It only provides for its scope and exceptions to its application.6 Thus, there are several ways to define the notion of the death penalty. In general, the death penalty means a punishment that is the strictest punishment in system of punishment, provided in penal code, applied by courts and only for the particular serious crimes to take away the life of E.f., the Hittite Code The Death Penalty Information Centre: http://www.deathpenaltyinfo.org/aritcle.php?scid=30&did=140#de%20facto (accessed 14/7/2008) Answers.com: http://www.answers.com/topic/capital-punishment Answers.com: http://www.answers.com/topic/capital-punishment Article 35 the Penal Code 1999 (VN) 7 offenders.7 According to Dr. Pham Loi, “Capital punishment is the strictest punishment in system of punishment, provided in Penal Code, applied by courts and only for the particular serious crimes to take away the life of offenders.”8 This notion of capital punishment is large. It include general feature of punishment and particular feature of capital punishment. Dr. Pham Van Beo assumes that the death penalty is a special punishment, the strictest punishment. It takes the life of offenders and is only applied to offenders that are the most dangerous for society. We see these views only concern particular features of the death penalty such as that it is for particularly serious crimes, and takes away the life of offenders. So we can see that the notion of capital punishment was consider mainly as a special punishment. It has some particular features. 2.1.2 Features of the Death Penalty When comparing the death penalty with other punishments such as fines, imprisonment, life imprisonment etc, we can easily find differences between them. It can be shown that the death penalty is a special punishment but it still has advantages and disadvantages like other punishments. First of all, the death penalty is the strictest punishment in the system of punishment. Other punishments take away the property or freedom of offenders but the death penalty takes away their right to life, the most important right a person. Thus, the death penalty is the most terrible punishment for offenders though it is a consequence that offenders have to face when they commit heinous crimes. Caesar Beccaria (1738-1794) assumed that the death penalty is not in fact the strictest punishment and that perpetual slavery is harder than capital punishment. It would then be a more effective deterrent than capital punishment. “A steady example over a long period of time is more effective in creating moral habits than is a single shocking example of an execution. Beccaria argues that perpetual slavery is a more effective deterrent than capital punishment. ............ From the spectator’s perspective, observing perpetual slavery will have a more lasting impression than capital punishment. Perpetual slavery will also seem more terrible from the vantage of the spectator, than from the criminal himself”.9 The facts show the opposite of what Caesar Beccaria said. The right to life is primary and the most important for most people. Everyone is afraid of execution. Many offenders stop committing heinous crimes when recalling the death penalty. The Textbooks Vietnamese Criminal Law (2003), p.189 The death penalty and execution under Vietnamese Law (2001), p. 20 The internet Encyclopaedia of Philosophy: http://www.iep.utm.edu/b/beccaria.htm#Against%20Capital%20Punishment (accessed 02/10/2008) 8 Second, even in retention countries, the death penalty is only applied for “the most serious crimes”. There are several ways to interpret what are “the most serious crimes”;10 each state governed by law should have the freedom to determine for itself what those crimes are. Third, the death penalty deters crime. Although there are many arguments against the deterrence effect of the death penalty, many countries that maintain the death penalty believe that the deterrent effect is very strong. The deterrent effect of the death penalty has two sides, individual and general deterrence. Individual deterrence means that the death penalty prevents with 100% efficiency the perpetrator from committing more crimes. A dead criminal can do no harm to any other human being. No more murders or violent crimes, rapes or robberies or any other devilish act in this world. And if every murderer were arrested after the first murder and sentenced to death, there would no longer be any serial killers. No country will of course achieve this or try to. But if a country introduces capital punishment and applies it fairly, serial killers and violent criminals will be fewer. This is an unavoidable fact Someone may object and say that this is also the case with lifetime in prison. But this is wrong. In most countries life never really means life, but a certain number of years in prison and relapse after release is common. Moreover, escapes usually lead to new crimes; sometimes acts of violence and murder take place during leaves or even in prison. Example, the Vietnamese Penal Code (1999) Article 58 (3) provides that: “A person may be entitled to many reductions but have to execute half of the declared penalty. For persons sentenced to life imprisonment, the sentence shall be commuted for the first time to thirty years of imprisonment and despite reductions, the actual duration of penalty served must be a minimum of twenty years” There are many retention countries, which believe that the death penalty deters some people from committing heinous crimes.11 This is the general deterrent effect of the death penalty. Executing offenders has an effect on other people: they receive a warning unless they refrain from heinous crimes they may face the death penalty. This warning prevents some people from committing serious crimes. However, far from everyone will be deterred because of the death penalty.12 Abolitionists focused on this feature of the death penalty and they assume that there is no evidence of the general deterrent effect of the death penalty.13 10 In recommendations of The Human Rights Committee of the ICCPR (HRC) and in “Safeguards guaranteeing protection of the rights of those facing the death penalty” adopted by Economic and Social Council resolution 1984/50 of 25 May 1984. E.f., Singapore, Viet Nam, China ect. Anderson, David (2002) p. 28 Donohue, John. J. And Wolfers, Justin, The Death Penalty: No Evidence for Deterrence, 2006, Economics’ Voice, www.bepress.com/ev/vol3/iss5/art3/ ( accessed 28/11/2008) 9 Finally, we have to face the virtual certainty that genuinely innocent people may executed and that there is no possible way of compensating them for this miscarriage of justice. There is also another significant but much less realised danger here. A person convicted of murder may have actually killed the victim and may even admit having done so but does not agree that the killing was murder. Often the only people who know what really happened are the accused and the deceased. It then comes down to the skill of the prosecution and defence lawyers as to whether there will be a conviction for murder or for manslaughter. It is thus highly probable that people are convicted of murder when they should really have been convicted of manslaughter only. So the death penalty has risks even when applied to actual offenders. That is a disadvantage of the death penalty. The abolitionist always relies on this aspect of the death penalty. We view the death penalty as we do other punishments. It has advantages and disadvantages. However, people who are against the death penalty only focus on the disadvantages while people who for it only focus on the advantages. If this were correct, it would seem both of them are wrong. We must be able to argue both for and against the death penalty. 2.1.3 Grounds For and Against the Death Penalty Since the 18th century, opinions regarding the death penalty have been in conflict; some favoured abolition, others retention. There were many grounds raised when arguing for and against the death penalty but the key ones were based on philosophical and practical foundations. The right to life and the right to punish were the two main philosophical foundation. The practical foundations focussed on its deterrent and brutalizing effect. The right to life The right to life is a fundamental right and surely the most significant right a person has. It is received largely in every countries. However, it is not easy to understand what the right to life is. The right to life was usually understood in two ways. First, the right to life is a natural right. It cannot be taken away by anyone, that is, it is conceived of largely negatively as right not to be deprived of life. According to Hugo Adam Bedau, all such live have value even the live of murderers and a murderer as having a life to live that is on balance more valueable than not.14 People opposed to the death penalty assume that the right to life is "an inalienable attribute of human beings" and the "supreme value in the international hierarchy of human rights" and this is guaranteed by legally binding standards at universal and regional level"15 Bedau, H. A., “Abolish the death penalty even for the worst murderers” in The Killing State, Oxford, 1999, pp. 41, 42 15 Explanatory Report to Protocol No 13 to European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the abolition of the death penalty in all circumstances (1) http://conventions.coe.int/Treaty/en/reports/Html/187.htm 10 Right to life become a negative right. It means that life is protected from any deprivation of life. Oppositionists believe that “life is a gift that the Lord has given us, and we must protect it from conception until nature death... God has given us life and only God can take it away... the death sentence is not a natural death”.16 So the use of the death penalty is a violation of the right to life. This opinion was received in Europe and some countries that abolished the death penalty. Second, right to life can be seen as a positive right.17 It is not a complete right. This right to life must then be protected from being arbitrarily taken. If a state governed by law values man - the victim of a crime - with the highest level of respect, then any actions that take it away illegally must be punished. The punishments may even include the application of the death penalty to capital offenders. Thus, the right to life of offenders is limited or forfeited so as to save the right to life of other people. So, the right to life is not unqualified. Thus, the right to life is not an absolute right without limitations. The right to life is talked by State (under their laws) if offenders commit the most serious crimes. In this case, we can say that offenders took their own right to life themselves. John Locke assumed that even if the right to life is “natural” and inviolate, the murderer forfeits his life and so putting him to death at most infringes.18They took their own lives themselves; they have no right to life when they commit capital crimes. The death penalty corresponds to what such capital offenders have done. And the death penalty has deterrent effect crimes. In this case, it seems that the death penalty, as an instrument, serves to protect the right to life. Anderson argues, "Through the death penalty the respect for man's inviolable value is kept".19 It is worth to use the death penalty if we can save more than live of people in society. We can see that whether one supports or opposes the death penalty depends on how one understands the right to life. If a person assumes the right to life is always inviolable, he or she will be against the death penalty. If they assume the right to life is limited, they will be for the death penalty. These differences are also linked to the different backgrounds, cultures and interests of different countries. The right to punish The right to punish is the right of states to punish offender including by way of execution. The right to punish stands in opposition to the right to life when states apply the death penalty. To protect the interests of the community, the order of society and justice, states have the right to punish any offender. In capital cases, states can apply the death Cardinal Renato Martino: http://www.alyosha.com/dp/dp5.html. Id.,p. 212 Bedau, H. A., “Abolish the death penalty even for the worst murderers” in The Killing State, Oxford, 1999, p. 43 19 Anderson, David (2002), p. 14 11 penalty to them. Offenders have to bear the judgment of their state. They lose their life if they commit capital crimes. Why do states have the right to punish? The source of this right is the sovereignty of the state. Under a social contract theory, as part of the contract that was entered into between people in a society, states represent the people and administer society. Thus, states have sovereignty and can punish offenders. Under the social contract, people want to protect their life by way of laws, and states can even execute people who are capital offenders. Jean Jacques Rousseau wrote that: "People generally want to be protected in their life by states, they will sacrifice their life when necessary.... Execution seems to work like this. If people do not want to become victims of murderers, they should be executed when they kill others."20 People that are against the death penalty assume that the death penalty could not be contained in an original civil contract.21 If this were so, the use of the death penalty would not be legitimate. On this question, Rousseau assumes that although there are no specific clauses that states can execute capital offenders, people have to agree to this if they want to protect their life.22 In Viet Nam, under the theories of Marxism - Leninism, laws express the will of the dominant class. Laws are generally the instruments of the dominant class to help them dominate society and protect their interests first.23 In fact, the death penalty is an instrument of dominant class to maintain their domination. I. Kant (1724-1804) believed that states need to punish offenders to protect justice. The death penalty is necessary to save society. "It is better that one man should die than that the whole people should perish. For if justice and righteousness perish, human life would no longer have any value in the world."24 So he seems to value the interests of the community above the individual. The degree of punishment must be proportionate to the crime. This is the principle of equality. "If you slander another, you slander yourself; if you steal from other, you steal from yourself; if you strike another, you strike yourself; if your kill another, you kill yourself."25 If a person engages in capital crimes he should thus be executed. This is the right of retaliation (jus talionis). Rousseau, J. J. (2004), p. 92 See: Marquis Beccaria http://web.telia.com/~u15509119/ny_sida_9.htm Id., page 92 Textbook of Theories of State and Laws (2001), pp. 61, 62 See: Kant, I. http://web.telia.com/~u15509119/ny_sida_9.htm See: Kant, I. http://web.telia.com/~u15509119/ny_sida_9.htm 12 However, this principle is not that of meeting "like with like". States do not do exactly what offenders did. For example: hurt to offender when he hurt another or cut his hand if he steals. But state must use the death penalty for murderer to restore justice. The retribution of states is different from the revenge of an individual. According to Nozick's retributivism,26 there are six differences between retribution and revenge: (i) retribution is done for a wrong, while revenge may be done for an injury or harm that need not be a wrong, (ii) retribution sets an internal limit to the amount of punishment, according to the seriousness of the wrong, but revenge need set no limit, (iii) revenge is personal but retribution is governmental, (iv) revenge involves a particular emotional tone, pleasure in the suffering of another but this is not so in the case of retribution, (v) revenge need not be general in that it does not commit the revenger to avenging again in similar circumstances, (vi) retribution is only applied to the guilty but revenge can be applied to innocents. This point likes opinions that are common in Vietnam and Singapore. Community interests are prioritized over individual rights, translated into development-oriented goals, with assertions that Singapore “has always weighted group interests more heavily than individual ones”.27 This is deferent point between the Oriented Countries and the West Countries. In West Countries, they weighted individual right and assume that the sovereign of state should not infringe individual rights. The Deterrent Effect According to the theory of punishment, punishment has the purpose of preventing crime and rehabilitating offenders. The death penalty does not not the purpose of rehabilitation, but the death penalty (for those who support it) has the highest deterrent effect. It is only provided for in criminal law because of this deterrent effect. However, this effect can be weak and sometimes does not even exist.28 The effect of prevention has two aspects: individual prevention and general prevention. It is clear to see that the effect of the death penalty on an individual is maximal. Offenders that are executed have no chance to commit any further crimes. Some people, who against the death penalty assume that the life imprisonment without pardon and the death penalty are the same so far as individual deterrence is concerned. This is not necessarily the case. We cannot be sure that offenders, who are in prison, will not to commit crimes again. They can be released and then commit crimes or they can harm staff and inmates while in prison. The death penalty is the only kind of punishments that can absolutely deter the offender from committing any further crimes and is thus the greatest specific deterrence. General deterrence is the most important reason for using the death penalty. The idea is that executing persons, who are capital offenders, prevents other similarly disposed Ten C.L. (1987), pp. 41-42 Li-ann Thio (2004), p. 14 Nils, Jareborg, 2002, pp. 90-91 13 individuals from doing the same. Jeremy Bentham was its chief proponent, and he started from the position that all punishment is pain and should therefore be avoided. However, punishment might be justified if the benefits (in terms of general deterrence) would outweigh the pain inflicted on the offender punished assuming lesser punishments would not be sufficient to deter others from committing this kind of offence. The assumption is that citizens are rational being, who will adjust their conduct according to the disincentives provided by sentencing law. The same assumption leads to a belief in marginal deterrence – increasing penalty levels by a certain amount will result in a decline in offending.29 Economists such as Isaac Ehrlich, Richard Posner, and Ronald Clarke have developed a model crime theory. This theory explains crime as a process of rational choice by a person between legal and illegal behavior. These choices are influenced by how law enforcement reacts to illegal activities. Rationality, Ehrlich argued, would influence would-be offenders to avoid punishment and forego crime.30Punishment is one of the risks that people have to bear when they commit crimes. They compare the results of possible punishment to their own interests before they decide to commit a crime or not. If punishments are strict they will not commit crimes. So, the death penalty forces other peoples to avoid capital crimes. Ehrlich assumes that “One execution saves eight innocent lives.”31 Haag argues about deterrence and how it can be used to support the death penalty. In Haag's view, deterrence derives a positive from negative. The negative is that a guilty person shall die. The positive is innocent persons shall live.32 This is so because someone else who wanted to commit the same crime will now be afraid to go though with it, because of the harsh punishment. In Vietnam, most people assume that it is necessary to maintain the death penalty.33 Article 27 of the Penal Code (1999) stipulated: “Penalties also aim to educate other people to respect laws and prevent and combat crimes." According to Prof. Nguyen Ngoc Hoa, punishments (including the death penalty) generally prevent crimes in two ways. First, for people inclined to commit offences, punishments warn them and prevent them from actually engaging crime. It educates them to see the need to abide by the rules of social life that attempts to remove offenders or more careful in the hearing to avoid the hearing into his treatment of offenders. Secondly, for others people, punishment has the educational purpose of improving awareness of the law and encouraging people to struggle against and prevent crimes.34 Andrew Ashworth (2005), p. 75 The Death Penalty Imformation Centre, http://www.deathpenaltyinfo.org/FaganDeterrence.pdf , page 255 Id. Page 256 Hubpages Inc. : http://hubpages.com/hub/Death-Penalty The death penalty and execution under Vietnamese, Pham Loi (editor), 2001, p. 74 Prof. Nguyen Ngoc Hoa (1999), p. 11 14 In Singapore, warnings about the death penalty appear in public place to warn people off. http://en.wikipedia.org/wiki/Image:Singapore_Embarkation_Card.pngThe Singapore embarkation card contains a warning to visitors about the death penalty for drug trafficking. The warning may consist of "warning: death for drug traffickers under Singapore law". Warning signs can also be found at the Johor - Singapore Causeway and other border entries.35 The Brutalization Hypothesis People opposed to the death penalty often argue that there is not enough evidence of any deterrent effect has been found in studies conducted on it. In fact, they suggest the possible existence of an opposite reaction to the practice of capital punishment - brutalization. Whereas the deterrenct theory argue that the death penalty prevents violence from occuring, the brutalization theory assume that it in fact creates more violence. The brutalizing effect of the death penalty was recognized many years ago. In 1764, Caesar Beccaria observed that "the death penalty cannot be useful because of the example of barbarity it gives men etc. It is absurd that laws which are an expression of public opinion that is opposed to homicide, should commit it and that to deter citizens from murder they order a public one". Nothing in the succeeding years has detracted from the truth of that statement.36 Other persons – such as Hans von Hentig, a distinguished German criminologist, say in respect to corporal punishment "there are no certain and lasting deterrent effect on the perpetrator. The only thing certain is the brutalization of the punished, the inflictors of the punishment, the public officials in their public capacity, and especially of the population." The brutalization concept says that executions devalue human life and legitimize violence against people who appear to deserve it. In other words, the hypothesis is that executions subconsciously legitimize killing in the minds of offenders and the occurrence of an execution is more likely to increase violence rates. The theory of the brutalization effect assumes that when an execution occurs, there is an increase in violent thoughts or behavior in prison inmates and other offenders and this contributes to further violence. 2.2 International Law on Capital Punishment The question giving rise to many arguments is whether international law prohibits the use of the death penalty. People against the death penalty argue that international law prohibits it. People who support the death penalty assume that international law does not prohibit its use. I find that the international laws are unity to regulate about capital punishment. There are four trends relating to capital punishment: a trend regarding the use of the death penalty, a trend towards its limitation,a trend on safeguarding the rights of capital offenders and a trend in favour of abolition. Wikipedia: http://en.wikipedia.org/wiki/Capital_punishment_in_Singapore. Forer, Loisg (1994), p.118 15 First, international law does not prohibit the use of the death penalty. We can say that there are not any international convention to prohibit the death penalty. However, some people also assume that the use of the death penalty is a violation the international law. Cause of that defference depend on the ways to understand Article 3 of The Universal Declaration of Human Rights (1948). It was the first time that international law spoke of the "right to life". The Universal Declaration of Human Rights (1948) is also the primary source upon which those supporting the abolition of the death penalty rely. In fact, the Declaration is not a treaty and there are no state partiesnor is it enforced as a treaty law. However, the Declaration (at least part of it) have been deemed customary international.37Even so, many states have followed it in practice and it serves as a common standard of acchievement for all people and all nations.38 The Declaration seem to exists as more of a moral statement than a legal document, but states violating this Declaration will be considered as in violation of customary international law. The Declaration provides for a "right to life" at Article 3. According to Article 3 of the Declaration everyone has right to life, liberty, and the security of person. However, the phrase "right to life" is unclear. Thus, many arguments about the "right to life" can arise. Peoples who are against the death penalty assume that the "right to life" is an absolute right. It is "an inalienable attribute of human beings" and "supreme value in the international hierarchy of human rights."39 No one can forfeit the "right to life". The death penalty is thus prohibited and its use is considered as a violation of international customary law. People who support the death penalty assume that the right to life has positive meaning only. States protect the right to life in two ways. First, they punish everyone who destroys the right to life of another person. In this way murder is deterred and the life of people in general is protected. If this understanding is correct, then the death penalty is necessary to protect the right to life. Secondly, states have to follow their laws when executing capital offenders. Article 6 of the International Covenant on the Civil and Political Rights followed this meaning. I think that there are several ways to interpret Article 3 of the Declaration and it does not expressly prohibit the use of the death penalty. Thus States that maintain the death penalty do not violate it. Short, A. Christy, (1999), page 725 Id. p.725 Explanatory Report to Protocol No 13 to European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the abolition of the death penalty in all circumstances (1) http://conventions.coe.int/Treaty/en/reports/Html/187.htm 16 The International Covenant Civil and Politics Right (1966)40: this treaty does not prohibit the use of the death penalty. It only protects the “right to life” from being arbitrarily taken away.41The right to life was considered as a positive right. According to Article 6 (2), (6) of the ICCPR states can use the death penalty for the most serious crimes. Second, international law does limit the use of the death penalty. The limitations imposed by international law are of three kinds: providing cases the death penalty does not apply to, limiting the scope of the use of the death penalty and safeguarding the rights of the capital offenders. First aspect, international law provides cases that the death penalty shall not apply to. Those cases usually concern persons under eighteen year old or pregnant women. According to article 6 (5) of the ICCPR, the death penalty shall not be applied for crimes committed by persons below eighteen years of age and shall not be carried out on them. If a person committed capital crimes when under eighteen, they should not suffer the death penalty. And pregnant women cannot be executed in any case. The ICCPR does not provide for offenders that are mentally ill, over seventy years old and new mothers. The Convention on the Right of the Child:42 according to the preamble to the Convention, state parties agree that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" and "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". The right to life of child was considering as "the inherent right to life."43State parties have a duty to protect the right to life of child by their laws. Moreover, states parties have to ensure that: "no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age."44 The Safeguards also prohibited using the death penalty in some other special cases. According to point 3 of the Safeguards, the death penalty shall not be applied to persons below eighteen years of age at the time of the commission of the crime either. The death 40 The ICCPR came into force in March 1976. 144 states parties ratified this treaty but only 12 of them are Asian states (Cambodia, China (not yet ratified), Laos, Democratic People’s Republic of Korea, Indonesia, India, Japan, Nepal, Philippines, Republic of Korea, Sri Lanka, Thailand, and Vietnam). 40 Viet Nam ratified it in 1982; Singapore has not ratified this treaty. Article 6 of the ICCPR, “No one shall be arbitrarily deprived of his life” It was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 and entered into force on 2 September 1990. Every countries in the world has ratifed this treaty, except the U.S and Somalia. Viet Nam was the second country to ratify this Convention. 43 Article 1 of the Convention on the Right of the Child: "States Parties recognize that every child has the inherent right to life" Id. Article 37 (a) 17 sentence shall not be carried out on pregnant women, or on new mothers, or on persons who have become insane. We can see that there are more cases that do not apply the death penalty than are to be found in the ICCPR. Second aspect, the death penalty is to be for special cases only and should not be used widely. The death penalty is only to be applied to the most serious crimes. According to article 6 (2) to (6), state parties are not obliged to abolish the death penalty totally but they are obliged to limit its use. The sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. The question is how to understand “the most serious crimes” in Article 6 of the ICCPR. The laws of the state parties are used to interpret this article. Some states (like Viet Nam, China etc) provide a broad definition, which includes homicide, economic crimes, crimes of national security etc. However, other states assume that it can only cover homicides. The opinion of the HRC is that the expression "most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of Article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. So, "only intentional killings or attempted killings, or the intentional infliction of grievous bodily harm, may permissibly attract the death penalty under article 6 (2)".45 The HRC has also confirmed that the following are not "most serious crimes", and cannot therefore attract the death penalty without violating article 6: “Robbery, traffic in toxic or dangerous wastes, abetting suicide, drug-related offences, property offences, multiple evasion of military service, apostasy, committing a third homosexual act, embezzlement by officials, theft by force, crimes of an economic nature, adultery, corruption, crimes that do not result in the loss of life and political and economic offences.”46 However, the interpretation of the HRC does not bind the states parties in theory or in practice. Thus, this point has given rise to serious connection. The Safeguards are not only there to protect capital offenders, but also limit the scope of the use of the death penalty. Under point 1 of the Safeguards, "capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.". The most serious crimes are intentional killings or attempted killings, or the intentional infliction of grievous bodily harm. It also covers crimes such as treason that do result in extremely grave consequences for society as a whole. Third aspect, international law does also safeguard the rights of capital offenders. In particular case, the states can use the death penalty to punish offenders but they must also Joseph, S., Schultz, J., Castan, M., (2000), page 120 Id. 18 protect the rights of the capital offenders and guarantee that they are convicted fairly, and treated with humanity. According to Article 6 (2) of the ICCPR, capital offenders can only be executed pursuant to a final judgment rendered by a competent court. And they have “the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases”.47 International standards on the use of the death penalty were clearly provided in the Safeguards guaranteeing protection of the rights of those facing the death penalty (adopted by Economic and Social Council resolution 1984/50 of 25 May 1984). The Safeguards also guarantee other rights of capital offenders such as the right to an appellate process, the right to seek pardon or commutation of the death sentence, and the right to have minimal suffering inflicted upon the individual. Third, international law also has provisions that abolish the death penalty. The Second Optional Protocol was adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989 and aims at the abolition of the death penalty. The state parties to the ICCPR have the right to choose whether to ratify this Protocol or not. Up to now, 72 State Parties have ratified it. In Asia, only two countries (Nepal and Philippines) ratified the Second Optional Protocol. Viet Nam and Singapore have not yet ratified it. The right to life was regarded by the Second Optional Protocol as a negative right. The right to life cannot be taken away by anyone, even states. States parties believe that "abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights" and "all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life"48 Thus, the death penalty was considered as an action that violates the right to life. According to Article 1 of the Second Optional Protocol, states parties have to abolish the death penalty. In signing States, nobody shall be executed after ratification of the Protocol. If capital offenders were sentenced to death before the state ratified they shall not be executed either. For the Second Optional Protocol does not absolutely abolish the death penalty. There is an exception "for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime."49 This means that, State Parties can use the death penalty in wartime for the "most serious crime of a military nature”. States have to "communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime." when they begin to use the death penalty. Article 6 (4) of the ICCPR 48 Preamble of the Second Optional Protocol to the on Civil and Political Rights, aiming at the abolition of the death penalty 49 Id. Article 2 19 International Covenant 2.3 Trends of Regulations on Capital Punishment in Criminal Law of Countries A trend in favour of the abolition of the death penalty is noticeable throughout the world. There are 141 counties have abolished the death penalty.50 The abolition of the death penalty includes completely abolition (abolitionist), abolition in practice (abolitionist de facto) and abolition for ordinary crimes in peacetime (abolitionist for ordinary offences). Despite the fact that there are different levels of abolition, the abolition of the death penalty is becoming more and more common. According to Roger Hood, “the annual average rate at which countries have abolished the death penalty has increased from 1.5 to 4 per year or nearly three times as many.”51Differences in the background of countries do have an impact. Although the world-wide movement towards abolition has proceeded at an increasing pace, it is not a uniform trend. 62 countries maintain the death penalty. Many of these retentionist countries are in Africa south of the Sahara, while some are in Asia. Retentionists are the most liberal in their use of the death penalty. In some retentionist countries, the death penalty is freely applied, including for economic crimes. So one can say there are five trends regarding the regulation of the death penalty. First, completely abolish the death penalty. The death penalty is then not applied in any case. This trend has been increasing. There were 35 countries that had completely abolished in 1988 but 58 countries had completely abolished it in 1995.52 There are now 91 completely abolitionist countries . Under Protocol No 13 of the European Convention, all parties have to completely abolish the death penalty in time may . Protocol No. 13 was signed on 3 May 2002 and has a major significance for human rights law and the right to life. This Protocol is the first international treaty in which the death penalty was absolutely abolished. State parties assume that "the right to life, "an inalienable attribute of human beings" and "supreme value in the international hierarchy of human rights" is unanimously guaranteed in legally binding standards at universal and regional level"53 And state parties are also convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings. According to article 1 of Protocol No.13, the death penalty is to be abolished in all circumstances, including for acts committed in time of war or of imminent threat of war. This duty connects with article 2 of the Protocol "No derogation from the provisions of this Amnesty International: http://www.deathpenaltyinfo.org/article.php?scid=30&did=140#de%20facto Hood, R. (1996), p. 8 Id., p. 9 Explanatory Report to Protocol No 13 to European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the abolition of the death penalty in all circumstances (1) http://conventions.coe.int/Treaty/en/reports/Html/187.htm 20
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