Famous Human Rights Lawyer on Moratorium

Live and let live

THONGBAI THONGPAO

Efforts to lift capital punishment in all countries by non-governmental organisations have been going on for decades and substantial progress has been made over the years. In the latest move, a motion has been submitted to the UN General Assembly for a vote on the issue.

Actually, the UN has made its stand clear that it disagrees with the death penalty. It runs against Item 3 of the Universal Declarations of Human Rights which provides: "Everyone has the right to life, liberty and security of person." Likewise, the 1966 International Covenant on Civil and Political Rights which Thailand ratified in October 1996, prescribes: "Every human being has the inherent right to life. This right shall be protected by law."

It also provides: "In countries which have not abolished the death penalty, 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. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence, and sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women".

So far, Thai constitutions and the Penal Code have been in compliance by these commitments. We don't execute a person under 18 or a pregnant woman. Our law also grants inmates on death row the right to seek a royal pardon within 60 days from the date the Supreme Court hands down its judgement and execution may take place only after royal discretion. In most cases, the royal pardon is granted, and it is only once in a blue moon that the appeal is turned down.

From Dec 12, 2003 until now, no execution has been carried out in Thailand. There are now some 900 prisoners on death row, all of whom are either in the process of seeking the royal pardon or waiting for the Supreme Court's rulings. Throughout my counselling career, I have represented three suspects facing capital punishment for manslaughter by martial court. In these cases, I sought the royal pardon on their behalf and they were all granted. All three are now free men leading a normal life. One of them even entered politics by running for Parliament thanks to the boundless mercy of His Majesty the King.

Last month, I met Prof Speedy Rice, the representative of World Coalition Against The Death Penalty, who is here on a worldwide campaign to lobby for the lift of the death penalty, and Danthong Breen from the Union for Civil Liberty, to discuss the issue. According to them, 60 countries have abolished the punishment for all crimes, 11 have done so for all but exceptional crimes such as wartime crimes, and 32 still retain the death penalty in law but have not carried out any executions for the past 10 years or more and are believed to have a policy or established practice of not carrying out executions. This makes a total of 133 countries which have abolished the death penalty in law or practice. Sixty-four other countries, Thailand included, retain and use the death penalty.

Prof Rice also met with Thirapat Serirangsan, a minister to the Prime Minister's Office, and Charan Phakdithanakul, permanent secretary for Justice, who both agree with the principle and pledged to push the issue.

Under the Thai law, capital crimes include offences against life or national security, drug trafficking, and rapes which result in deaths.

In my view, despite the letter of the law, Thailand appears to be more willing now than ever to lift the penalty. Not only does the punishment run against our international commitments, it is also not acceptable under Buddhism, the religion of the majority of the people. Since almost all of our judges are Buddhists who uphold the value of life and the instruction against killing, the death penalty is handed down only in the most violent of cases and on the cruelest of criminals. Even after it is passed, the prisoner may appeal to the King. All of our constitutions provide that the King has the prerogative to grant a pardon and in practice His Majesty has always had mercy of them.

As this year is an auspicious one in which Thais celebrate His Majesty the King's 80th birthday, the government should therefore rethink the issue and consider lifting the penalty as a gift to His Majesty. But since the UN General Assembly is nearing, we might not be able to abolish it in time. At the least, if a vote on the issue is to be cast at the meeting, I hope Thailand at least abstains and drops its support for the penalty.

Bangkok Post, Sunday 18th November 2007