Saturday, October 17, 2015

Japanese Woman Condemned to Death in Malaysia

Malaysia’s highest court has endorsed the death sentence issued by a lower court for a 41-year-old Japanese woman over trafficking 3.5 kg of methamphetamine into the country, a source said.
The decision Thursday by the Federal Court of Malaysia in Putrajaya confirms the capital punishment ruling for Mariko Takeuchi, rejecting her appeal, according to the source.
Takeuchi had pleaded not guilty, saying she did not know what was inside a suitcase she brought in on a trip from the United Arab Emirates. She may seek a pardon from the king.
Takeuchi, a former nurse, had around 3.5 kg of methamphetamine hidden in the suitcase she brought in from Dubai to Kuala Lumpur in October 2009, according to a ruling by the Court of Appeal in March 2013.
Possession of a minimum of 50 grams of methamphetamine is considered to be trafficking in a dangerous drug and punishable by death in Malaysia.
Japan Times October 16

Death Penalty Thailand deplores the execution of women for reasons to be treated extensively on this site. In the whole modern history of Thailand three women have been executed and a Thai government official announced at a conference on the death penalty that "Thailand does not execute women".
The execution of women is repugnant and serves no purpose.

Tuesday, October 13, 2015

Abolition of the Death Penalty, Where Do We Go from Here?

With likely death sentences for perpetrators of the bombing at the Ratchaprasong shrine, Thailand will be forced to face the reality of imposing sentence of death. Given the current standing on sentence of death, what are the options for imposing such sentence?

Like all member countries of the United Nations, Thailand must report to the UN Human Rights Committee in Geneva on its observance of commitments it has freely undertaken in solemnly ratifying International Treaties which codify in detail recognised human rights. The report, referred to as the Universal Peer Review is heard in the great hall of the Palace of Justice in the presence of representatives of other UN nations, who must, in their turn, justify their human rights record, and hear the recommendations of their peers.

In 2011 Thailand first reported to such an assembly. As is usual for countries still maintaining the death penalty, many recommendations refer to the right to life, the basis of all other human rights. Thailand received such recommendations from fifteen countries, eleven in Europe and five in South America. A spectrum of the views expressed is most clearly exemplified in the recommendation of Switzerland, “Ratify the ICCPR-OP2”, and that of Brazil, “Consider abolishing the death penalty”. Both of these brief suggestions are coded reference to one of the most contentious issues for the UN.

The affirmation of the right to life is in the third of thirty two articles in the Universal Declaration of Human Rights, the basis for life and freedom in the modern world. At the time that the Declaration was adopted the world was emerging from a half century of bitter war and division, when only six nations in the world had progressed to abolition of the death penalty, and capital punishment, as was shown in the post war Nuremberg trials, was considered a necessary means of retaliation against heinous crime. Given the starting point for establishing peace and order, the Universal Declaration could not be imposed as obligatory on UN member states. Stronger and more detailed codes were elaborated in the years that followed. One of these codes is the International Covenant on Social and Political Rights (ICCPR). But even then abolition of the death penalty remained a free contractual choice which was elaborated in what is known as the second optional protocol (ICCPR-OP2) referred to in the recommendation to Thailand by Switzerland and several of the other peer recommendations. ICCPR-OP2 if imposes on states ratifying it a formal obligation in international law.

The recommendation of Brazil takes a different tack, “Consider abolishing the death penalty” indicating a stand on the freedom of a country to adhere or not to the basic founding UN document, a choice made explicit in the elaborated right to life as expressed ICCPR. Countries which maintain the death penalty, ignore the intention of the authors of the Declaration and the subsequent Convention, and commonly justify their stand on this freedom of choice. The recommendation of Brazil takes account of this constraint.

When the UPR hearing process is complete, the country under review is given the opportunity to respond to the recommendations made. The response of Thailand to the recommendations is of great interest: the spokesman for the Royal Thai Government rejected recommendations to abolish the death penalty with the words:
Thailand is embarking on a process of studying the possibility of abolishing the death penalty, in consultation with the public and relevant stakeholders. However, pending the completion of this consultation process, Thailand is unable to accept recommendations to review or amend the law in regard to capital punishment, place a moratorium on or abolish the death penalty.

In brief, the recommendation of Brazil to consider abolition is accepted while the recommendation of Switzerland to actually renounce the death penalty is rejected.

In April 2016, Thailand approaches another UPR session. True to its word Thailand has indeed considered abolition as shown by two extensive documents. The first is a study carried out by academics on behalf of the Department for the Defense of Liberties and Freedoms of the Ministry of Justice. This is the Department entrusted with the task of preparing a submission to the Thai Parliament on the issue of the death penalty, it is titled “Project on the Possibility of Abolishing the Death Penalty according to the Second National Human Rights Plan”. It is dated xx and consists of yy pages. The second is a study made by the National Human Rights Commission, which, although theoretically a unit not under government control, in its current realisation faithfully reflects and serves government policy. It is titled “The Death Penalty in Thailand”. Dated xx it is yy pages in length. The promise to Brazil and other countries recommending a stage of consideration is well fulfilled.

 Results of consideration on possibility of abolishing the death penalty
The context of abolition of the death penalty in Thailand was established by locating Thailand among the minority of countries which still retain the death penalty, 58 countries as opposed to the 140 which are abolitionist.
Four major reasons for abolition are identified:                                                                                                                                  
·      The death penalty conflicts with the most basic human right, the right to life

·      The majority of those condemned to death are the poor, who lack the means to employ effective defense

·      The justice system applying the death penalty is defective

·      The death penalty is not an effective deterrent to crime

To these may be added the possibility of execution of the innocent.

The study of the Department for the defence of Liberties and Freedoms, takes an academic stand, a study for its own sake, revealing its origin and the uncertainty of its mandate, in brief the lack of political enthusiasm and of a firm mandate from political masters.

By contrast, the study issued by the National Human Rights Commission is strongly oriented to achieving change rather than understanding. It makes an interesting identification of abolition of the death penalty as an expression of democratic power. It bases itself on a concept of penal practice which gives priority to the rehabilitation of condemned prisoners and their return to society. It bluntly accepts that capital punishment is not effective in controlling crime. If its message were accepted, the recommendation of Switzerland in 2011 would be fulfilled.

So there we are, well spiked on the horns of dilemma. We have considered so that a Thai delegation can no longer take refuge in the delaying tactic of pleading pause for reflection. But we are no closer to a decision to accept and ratify ICCPR –OP2. In the next UPR session we hope there will be even increased recommendation for the definitive step of acceptance. But the outcome is likely to be an appeal that Thailand must wait for the approval of popular opinion. As no effort has been made to launch an effective campaign to engage popular opinion, abolition will be further delayed for ever and a day.

To return to the question posed at the beginning of this article, what are the options? The first is to impose a lesser sentence than capital punishment. But for Thai courts which have imposed a sixty year sentence for an obscure charge of lèse majesté, what leeway is there for a heavy sentence for mass killing? And what of a sentence of death, for a country on its declared path to abolition? The only solution is acceptance and ratification of ICCPR-OP2 when Thailand may proceed with exactly the same measures of punishment as the International Criminal Court. So be it!

Newly Published Statistics on Death Penalty Sentencing in Thailand

Recently, new statistics on sentences passed by thai courts have been released "Annual Judicial Statistics of Thailand", " <> ".This document gives the numbers of sentences in all catagories for the years 2012 and 2013. Of particular interest are death penalties, which number 189 and 294 for the years 2012 aand 2013. These figures are a huge increase on earlier unofficial estimates.

UCL website: While we have long sought for an official statement on the number of death sentences, the figures were not available. We worked under the assumption that those condemned to death  would be refused bail and imprisoned. We were very familiar with the arguments for refusal of bail in cases of capital punishment. The incentive to flee the country would be very high and there was often repeated warnings that a person condemned to death would be very likely to intimidate witnesses in the hope that they would retract evidence. We met and interacted with prisoners condemned to death who were imprisoned; we had no means of knowing or meeting with a condemned person who might have been released on bail. On what appeared to be the rare occasion when a condemned person was granted bail, as in a case where the condemned person was a policeman, public outrage appeared to confirm the rarity of such release. The certain figures available to us were the numbers of prisoners in jails who had been condemned to death. For example, in the most recent figures available, 31 May 2015, there are 437 prisoners. A break down of these figures is available, into male and female, drug and non-drug cases, and the stage of trial, Appeal and Supreme Court. The missing statistic is the number of prioners per year. From the time of first sentence to a final Supreme Court judgement can take six to ten years and we have never known at what stage prisoners were involved. Certainly the number who have completed all stages are small; in the 2015 figures 29 out of 437 or 7%.

We had succeeded in getting some idea of the number of sentences each year from estimates provided unofficially by government officials. These numbers, obtained by examining court documents for prisoners, were in the range 50 to 53 per year, which seemed consistent with the overall number of prisoners.

The recently revealed figures for death sentences per year for 2012 and 2013, especially the 2013 figure of 294 appeared impossible. The office issueing the statistics helpfully provided a phone number for enquiries which we used to contact the official who had worked on the table of statistics. He pointed out that an apparent conflict with prison statistics was due to the majority of condemned prisoners being granted bail, and thus not appearing in prison statistics.

And here for the moment the matter rests. However, the major revelation is the virulence of the death penalty in the Thai judicial system. Rather than about one sentence per week, we are apporaching one sentence per day. Of course, executions are not being carried out, but a death sentence is a condemnation to the awful system of imprionment in appalling prison conditions for an indeterminate period, and always with the risk that active executions may be introduced at any time.

However statistical problems remain. The interpretation offered of prisoners being on bail, should mean that there would occur a surge in the number of prisoners who have completed the judicial process as the prisoners found guilty by the supreme court enter the stream of those imprisoned throughout the legal process. It may be that improved statistics revealing reversals of judgment, and of the status of prisoners on bail may help to explain the dichotomy in prison and court statistics. But at present we are still faced with an incompatibility in numbers which defies comprehension