If Not Now, When?

Two recent developments raise the question again of Thailand's adherence to the death penalty;
1. The vote in favour of a universal moratorium on capital punishment in the United Nations General Assembly despite the decision of Thailand to oppose the measure.
2. The slow but inevitable progress of the US towards abolition
a) this development is evident in the consideration by the US Supreme Court of the constitutionality of lethal injection: " The United States Supreme Court will hear arguments on Monday, January 7, on whether or not the lethal injection process in Kentucky is a violation of the Constitution’s 8th Amendment ban on cruel and unusual punishments. While the case, Baze v. Rees, has prompted a de facto moratorium on executions, it does not concern the constitutionality of the death penalty itself.

Currently, 35 of the 36 states with the death penalty use variations of the same three-drug combination in their lethal injection executions. Kentucky uses thiopental to make the inmate unconscious, pancuronium to paralyze the muscles, and potassium to ultimately stop the inmate's heart. The petitioners in Baze state that this combination of drugs has a high likelihood of producing severe and unnecessary pain in the prisoner. The second and paralyzing drug, however, makes the prisoner unable to exhibit any pain. Death row inmates in other states have also challenged lethal injection procedures in recent years."
The case is another manifestation of the realisation that there is no method to execute people without pain and indignity. The increasing numbers waiting for long delayed execution reveal that even the US has lost the stomach to send people to their death.
b) Whatever its lack of moral appeal, it is lately recognized in the US that it is more costly to execute people than to keep them in indeterminate detention, especially if one includes the cost of effective legal defense which is recognise to be a required precondition of the death penalty.

These developments raise the question for Thailand, "If not now, when?". By its vote against the Moratorium Thailand has taken a stand with the reactionary minority on one of the great moral issues of the day. And yet, Thailand lays claim to the high moral standing of its Buddhist culture which prohibits killing in any form. Will Thailand wait until it is the last state of all to renounce judicial killing?
Thailand has learned the trade of execution from the US and Government always point to US practice as an example that Thailand follows. What if the US is now visibly faltering and inching towards abolition? Whenever Thailand makes a step towards adopting world standards in human rights, it points to the moral imperative of its action. Will Thailand wait until the US has moved against the death penalty to discover its moral justification to follow?
At present there are up to 1000 men and women condemned to death in Thailand. Does the Government seriously consider beginning a process of execution at a rate determined by the facilities for execution, which could take years to complete? In the extreme, would we execute 10 persons a week for the next two years to clear the backlog?
If we do not abolish the death penalty now, then when?

Justice should be seen to be done

Conviction of Karen villager

On 25^th April 1986 a Karen man rode a motorbike returning to his home village of Ban Tai from the market town of Ban Rai. At a distance of about 6 kms from home he was killed by a single shot fired by an unknown assailant. The body was discovered about half an hour later. An autopsy on the body found that death was due to a wound caused by a shot gun, that the deceased rode a Suzuki motorbike of unknown registration and that the body was taken by a daughter to perform the usual rites.

The murdered man had been a contentious person who had made many enemies in his own and in neighbouring Karen villages. Complaints against him included concern for missing funds in local cooperatives. Among the several villagers who had quarrelled with him was one Dei Zou Naa. Speaking about the matter recently the Kamnan of the village remarked that the quarrel with Dei Zou Naa was typical of the many minor quarrels which occur between villagers living in a closed community.

Little is know of police investigation at the time. Police were later to affirm that their access to the area was affected by communist influence in the area which they claimed was a ‘pink’ zone. The only evidence they found was the butt end of a hand rolled cigarette and betal spittle, which they believed to indicate that the murderer was a hill tribe man.

Karen villagers form a close community with many social interactions, mutual dependence, and family relationships. A murder affecting these relations would be a major disturbance to normal life. A ceremony of appeasement was held before a village monk where the wife of the murdered man drank sacred water and denied that she held any vindictive feeling against members of the village, nor did she blame any particular person. At the time she had a son who was about one year old.

Years passed and the murder appeared to have little further relevance. The son of the murdered man went elsewhere to attend school, returning about three years ago as a grown teenager. He appeared to inherit the contentious character of his father and began to approach the Kamnan of the village asking him to arrest this one and that one whom he suspected of being the person responsible for murdering his father. The Kamnan refused saying that there was no evidence to implicate the persons suspected by the son. Finally, the son persuaded his mother to lay charges against Dei Zou Naa with whom she had normal friendly village dealings throughout the years. Dei Zou Naa, 66 years old, was arrested for the murder of nineteen years before. He was charged in court, found guilty, and condemned to death, a penalty then moderated to life imprisonment, a living death for a 66 year old man.

The conviction astonished the villagers of Ban Tai who remembered well the events of the day 19 years before. At least 15 of the villagers, among them the present Kamnan, asserted that Dei Sou Naa was with them throughout the day husking rice. Husking rice using a foot operated pestle was a community event, each family bringing their rice and taking turns to pound the husked rice. Dei Sou Naa had neither motorbike nor bicycle by which he could travel to the scene of the murder, and a long absence could not have passed unnoticed. Besides he would have had to pass houses in the village where his passage would have been noted. Villagers also testified that Dei Zou Naa has always been a quiet and peaceable person noted for his readiness to help others. They cannot believe that he would have carried out an act of violence. It seems that their testimony was not considered by the court.

At present the case is in appeal. It is difficult to understand the conviction on extremely flimsy evidence, a cigarette end and betal nut spittal of 19 years before. The lawyer acting for Dei Zou has firm hope that the Appeal Court will reverse the verdict.

Meanwhile bail is refused for fear that Dei Zou might flee. The wife of the convicted man has become paralysed and needs his presence, He himself is prematurely aged; to where could an elderly Karen, dependent on his village community, flee. The Karen villagers are deeply disturbed and their sense of justice injured. Their reaction reflects well the criterion for sentencing in a case incurring capital punishment which requires ‘clear and convincing evidence leaving no room for an alternative explanation of the facts’.

Image shows Karen witnesses who worked with the accused on the day of the murder and attest to his innocence

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

The Issue of Shackling

In July 2005 Thailand presented to the Human Rights Committee in Geneva its report on the implementation of its obligations under the Covenant on Civil and Political Rights. In its response the Human Rights Committee issued a stern admonition that the State "should guarantee the right of detainees to be treated humanely and with respect for their dignity". The issue of shackling was given special attention; "The use of shackling and long period of solitary confinement should be stopped immediately". Yet, two years later prisoners condemned to death are still permanently shackled. UCL has drawn attention again and again to the admonition of the Human Rights Committee and the obligation under international law to implement the terms of the Covenant. The response has been that the prison authorities are 'not yet ready' to fulfill their obligation.

To the shame of the prison authorities, prisoners themselves are taking legal initiatives against the unjust practice. A first case was submitted to the Administrative Court against the Corrections Department on the grounds that perpetual shackling is against Correctional Policy Guidelines, and causes mental stress and physical difficulties to prisoners. Photographic evidence of prison conditions demonstrated that shackling could not be claimed necessary to ensure the secure detention of prisoners. The Court immediately ordered that shackles be removed from the prisoner who submitted the complaint while the case was under consideration. On this decision another prisoner also invoked legal action. In this second case the decision of the Court has already been handed down, that perpetual shackling is indeed illegal. At present fifty prisoners are bringing similar action. If the precedent has been established it is difficult to see how a favourable decision will not be granted in other cases.

A worrying consequence is that prisoners whose shackles have been removed are being restricted to their cell block, unlike shackled prisoners who are free to go outside.
The Corrections Department is appealing the case where a decision has already been given. Can this be considered acceptable given the ruling of the Human Rights Committee two years ago?

And does the Corrections Department intend to oppose the legal case of every individual prisoner who seeks redress under the law?

Text of Moratorium on Death Penalty

United Nations A/C.3/62/L.29

General Assembly Distr.: Limited
1 November 2007
Original: English

Sixty-second session

Third Committee

Agenda item 70 (b)

Promotion and protection of human rights: human
rights questions, including alternative approaches
for improving the effective enjoyment of human rights
and fundamental freedoms

Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Micronesia (Federated States of), Moldova, Monaco, Montenegro, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Samoa, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Timor-Leste, Turkey, Tuvalu, Ukraine, United Kingdom of Great Britain and Northern Ireland, Uruguay, Vanuatu and Venezuela (Bolivarian Republic of): draft resolution

Moratorium on the use of the death penalty

The General Assembly,

Guided by the purposes and principles contained in the Charter of the United Nations, Recalling the Universal Declaration of Human Rights,[1] the International Covenant on Civil and Political Rights[2] and the Convention on the Rights of the Child,[3]

Recalling also the resolutions on the question of the death penalty adopted over the past decade by the Commission on Human Rights in all consecutive sessions, the last being its resolution 2005/59,[4] in which the Commission called upon States that still maintain the death penalty to abolish it completely and, in the meantime, to establish a moratorium on executions,

Recalling further the important results accomplished by the former Commission on Human Rights on the question of the death penalty, and envisaging that the Human Rights Council could continue to work on this issue,

Considering that the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the death penalty’s deterrent value and that any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable,

Welcoming the decisions taken by an increasing number of States to apply a moratorium on executions, followed in many cases by the abolition of the death penalty,

1. Expresses its deep concern about the continued application of the death penalty;

2. Calls upon all States that still maintain the death penalty to:

(a) Respect international standards that provide safeguards guaranteeing the protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;

(b) Provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing the protection of the rights of those facing the death penalty;

(c) Progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed;

(d) Establish a moratorium on executions with a view to abolishing the death penalty;

3. Calls upon States which have abolished the death penalty not to reintroduce it;

4. Requests the Secretary-General to report to the General Assembly at its sixty-third session on the implementation of the present resolution;

5. Decides to continue consideration of the matter at its sixty-third session under the same agenda item.

---

[1] Resolution 217 A (III).

[2] See resolution 2200 A (XXI), annex.

[3] United Nations, Treaty Series, vol. 1577, No. 27531.

[4] See Official Records of the Economic and Social Council, 2005, Supplement No. 3 and

corrigenda (E/2005/23 and Corr.1 and 2), chap. II, sect. A.

Abolish Death Penalty in Iran

deathpenaltythailand fully supports the movement against the death penalty in every country in the world, above all in the major executing countries, China, USA, Saudi Arabia, Iran, and Singapore. Humanity is diminished by every execution. Abolition will only be accomplished when it is accepted by every state.

Stoning in Iran - a Barbaric Horror

New stoning to death and hanging in Iran

Paris, 11 July 2007 : The International Federation for Human Rights (FIDH) and the Iranian league for the Defence of Human Rights (LDDHI) express their deep concern at the stoning to death of a man for adultery, on 5 July 2007, in Takistan (province of Qazvin). On July 10, a spokesperson of the Judiciary confirmed the execution of Jafar Kiani, and stressed that stoning is a legal penalty in Iran.

Jafar Kiani and his partner, Ms. Mokaraameh Ebrahimi, spent 11 years in prison. They were both condemned to stoning. The execution of Mokaraameh Ebrahimi has been postponed up to now thanks to domestic and international mobilisation.
In addition, in Sistan, in the South East of the Islamic Republic, a man whose first name is Mohamad-Gol, was hanged for armed rebellion, but no information is available concerning the date of his arrest and condemnation, the circumstances of his trial, or his family name.

The spokesperson of the Judiciary also announced on 10 July that 20 “thugs” condemned to death will be hanged in the coming days and that 15 other “thugs” may be condemned to death shortly.

Public hanging is generally used as the method of execution in the Islamic Republic of Iran, while stoning is prescribed in certain cases, including adultery (Art. 83 of the Islamic Criminal Code). The Code prescribes that men be buried up to their waist, women up to their chest (Art. 102). The size of the stones, which must not be too large so as to kill the person immediately but not too small either, is described in article 104.

Stoning is an inhuman and degrading punishment violating Article 7 of the International Covenant on Civil and Political Rights, ratified by the Islamic Republic, which states that «No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ». Numerous UN bodies, including the UN Human Rights Committee, the UN Committee against Torture and the UN Special Rapporteur on Torture have called for the abolition of corporal punishment.

With regard to the death by stoning, an order was reportedly made by the Iranian Judiciary in 2003 not to carry out death by stoning anymore. However, the July 5 execution by stoning is the second one since that order was made.

“We vigorously condemn the recent executions in Iran. They bring the execution toll since the beginning of the year to more than one hundred”, declared Karim Lahidji, Vice-president of FIDH and President of LDDHI. “We urge the Iranian authorities to adopt an immediate moratorium on all executions and, as a first minimal step, to pass a law prohibiting the death by stoning”, he concluded.

In Iran, the death penalty is generally pronounced after blatantly unfair trials, the executions are carried out in public, and the death sentence is not restricted to the “most serious crimes”, as required under international law. Those circumstances make an immediate moratorium on executions all the more urgent.

Little by Little - Exemption for Pregnant Women

Pregnant women exempted from death row in Thailand

Legislators on Wednesday amended the criminal code to exempt pregnant women from the death penalty.

The National Legislative Assembly approved an amendment to the Criminal Case Procedural Code to make a life sentence the maximum penalty allowed for women who are pregnant when on trial.

Under the previous code, pregnant women were eligible for capital punishment but were allowed at least one year on death row before the execution was carried out to spare the life of the child.

The death penalty is rarely carried out in Thailand, a Buddhist country.

Another amendment to the criminal code will require Thai jails to provide facilities for prison moms to take care of their children for at least three years after birth

At the UN Crime Prevention Congress in Bangkok, 2004, the then Permanent Secretary of the Justice Department declared that 'Thailand does not execute women'

Stoning to Death in Iran

See post below

"This Horrendous Practice"

Second Thoughts on an Executioner - Chavoret Jaruboon

Addendum to 'The Last Executioner' (see below)

The fascinating biography of Susan Aldous, ‘The Angel of Bang Kwang’ (Maverick House, 2007; widely available in Bangkok bookshops) gives a complementary picture of Chavoret Jaruboon. Susan has devoted herself to the inmates of Bang Kwang, and the inmates include the staff of the prison as well as prisoners, with a fierce generosity. She describes him as ‘one of the most honest and practical people I know ..who always tries to be fair and respectable to his charges’. He was to become her friend and biggest advocate within the prison and cooperated with her on several projects.

One senses the tragedy of a fair and honest man who has been doomed to take on the tragic guilt of carrying out judicial killing on behalf of others who sleep easily at night by reducing capital punishment to the paperwork of a judicial decision, while hiding the awful reality of the execution process.