Death Penalty in ASEAN: No Progress Should be Taken for Granted

Rafendi Djamin is co-founder of Coalition for the Abolition of Death Penalty in ASEAN (CADPA), and Wirya Adiwena is is Head of International Relations at The Habibie Center, the article is published in Thinking ASEAN Issue 31 / January 2018
 
The abolition of the death penalty has increasingly become a worldwide trend. Today, 105 countries have abolished the death penalty for all crimes, with an additional 29 countries abolishing the death penalty in practice – meaning while the punishment is still legal, these countries have not executed anyone in the last ten years, in line with their national policy or a commitment against the death penalty. Indeed, capital punishment is increasingly seen as an exception rather than a norm.
 
There is an increasing acceptance that the death penalty is no longer appropriate as they go against human rights. Moreover, it also suffers from the challenges that many justice systems face: potential discrimination based on class or ethnicity, and/or the influence of factors not related to guilt or innocence such as mistakes and inaccuracies during legal proceedings that might lead to the execution of an innocent person.
 
Southeast Asia is not an exception to this trend. Throughout the last decade, the region saw important developments in the legislations concerning death penalty across all ASEAN Member States. However, this progress did not come easily and should not be taken for granted. This article will review the current achievements in regards to the abolition of the death penalty in Southeast Asia, as well as to observe the challenges that it still faces.
 
The road towards the abolition of the death penalty is moving forward in Southeast Asia
 
Two ASEAN Member States have abolished the death penalty, namely the Philippines and Cambodia. The former abolished the death penalty in 2006 when President Gloria Macapagal Arroyo signed an act to downgrade the punishment of the death penalty to life imprisonment instead, citing its failure in deterring crimes.[1] Meanwhile, Cambodia abolished the death penalty much earlier. After banning the use of the death penalty in 1989, it further enshrined its abolition in the Cambodian Constitution in 1993.[2] Afterwards, Cambodia has been consistent in supporting the worldwide movement against the death penalty by continuously showing its support for a moratorium on the use of the death penalty at the United Nations General Assembly.
 
Furthermore, Singapore has put restrictions on the use of the death penalty. The city-state is an interesting case as they have always taken pride on their ability to effectively deter drug trafficking through the strong deterrence effect of the death penalty. However, a key change occurred in 2012 with amendments to the Misuse of Drugs Act. Under the earlier version of the act, capital punishment was mandatory for drug traffickers who possess a requisite amount of drugs. The amendments allow for a less draconian approach as Singaporean courts are now able to impose a life imprisonment instead of a death sentence, on the conditions that the accused is “only a drug courier” or “suffering from such an abnormality of mind that it substantially impaired his mental responsibility for committing the offence.”[3] However, it is important to note that this trend happened amidst criticisms by national, regional, and international NGOs. In practice, the discretion given to a judge is still limited and depends on the result of the investigation conducted by the Attorney General’s Office—further increasing the bar to not implement the death penalty.
 
Vietnam also imposed more legal restrictions toward the death penalty. A revision to the Penal Code abolished the death penalty for seven crimes, including “surrendering to the enemy, opposing order, destruction of projects of national security importance, robbery, drug possession, drug appropriation and the production and trade of fake food.”[4] Additionally, a person who is above 75 years old will also be exempted from death penalty.
 
Meanwhile,Thailand is taking steps toward abolishing the death penalty. At the moment, they have allowed for a judge’s discretion to decide between life or death sentences, instead of prescribing for a mandatory death penalty. The country expects to abolish the death penalty for crimes that do not affect the lives of others in the future.[5]
 
A positive development also occurred in Malaysia. An effort to lift the mandatory requirement of imposing the death penalty for a number of crimes—including drug trafficking and murder—was started by the Malaysian government in 2015. More recently in 2017, the Malaysian parliament voted to remove the mandatory death penalty for drug offences and allow judges the discretion to decide sentences for drug offenders.[6]
 
In contrast, meanwhile, Indonesia has resumed practicing the death penalty in 2013 after a four-year moratorium. However, despite this setback it should be noted that a review of the penal code by the Indonesian parliament is currently taking place. A proposed new code would impose a 10-year stay on executions, after which the death penalty could be commuted to a prison term.[7] This will allow room for the death penalty to not be used as the primary punishment but only as an alternative to be used in certain cases.
 
Finally, Brunei Darussalam, Laos, and Myanmar have imposed a de facto moratorium on death penalty. The last known execution in Brunei occurred in 1957 when they were still a protectorate under the United Kingdom. Meanwhile, Laos’ last known execution was in 1990, and Myanmar was in 1993. However it is still legal to hand out death sentences in these countries.
 
These positive developments suggest that there is increasing support in the region towards the abolition of the death penalty. While the above examples highlight the development in the legislations or policies of each ASEAN Member States, it is also important to note that there is also a corresponding and active movement towards the abolition of the death penalty coming from civil society organisations that conduct their work both nationally as well as transnationally. One recent example is the Coalition for the Abolition of the Death Penalty in ASEAN (CADPA) which launched the ‘End Crime Not Life’ campaign in Southeast Asia. CADPA members are based all around the region advocating for the abolition of the death penalty.
 
No progress is set in stone
 
The problem with the movement to abolish the death penalty is similar with other human rights movements in Southeast Asia: no progress is ever set in stone. Thus no development should be taken for granted.This applies to countries that have implemented legislations as well as others that have not.
 
The Philippines is an important reminder of this. As was mentioned above, they have already implemented legislation to abolish the death penalty. However, the current administration of President Rodrigo Duterte is attempting to reinstate the death penalty for drug-related crimes with some support within Congress. This is part of Duterte’s ongoing strong-armed policy against drugs.
 
Indeed, although the new law has not yet passed, this has not stopped Duterte from enforcing punitive actions in drug cases. According to a 2018 Human Rights Watch (HRW) report, the Philippine ‘war on drugs’ has claimed more than 12,000 lives in unlawful or extrajudicial killings.[8]
 
There is still strong opposition among civil society in the Philippines against the death penalty, including from the prominent Catholic Church which led the abolitionist campaign in the early turn of this century. However, Duterte’s policy towards drugs – and the President’s high public approval ratings - shows that support for the death penalty is also still strong in the Philippines, to the point that legislation outlawing the death penalty may be reversed and where the authorities may conduct unlawful or extrajudicial killings with impunity as long as the purpose is to combat drugs.
 
This highlights the next challenge: drug- related crimes. Despite the progress outlined above, Southeast Asian states continue to subscribe to the belief that as drugs have a significant impact on society, the punishment for drug-related crimes should be the death penalty. In addition to the Philippines, other countries also often cite combating drugs to justify imposing the death penalty—regardless of whether the suspects are drug kingpins or low level ‘drug-mule’.
 
One example is Indonesia. The administrations of both Joko Widodo and Susilo Bambang Yudhoyono have carried out the death penalties. There were 34 executions carried out in the country since 2007 with a lot more still awaiting their death sentences, many of them are from drug-related offences.[9] This position is ironic as Indonesia is also well known for its active diplomacy to free their citizens who are under death penalty abroad under the principle to go ‘beyond protection’ for Indonesians facing legal problems.[10]
 
Another example is Singapore. Despite the previously mentioned progress in the country, it has been a difficult one to achieve as Singapore continues to hold strong beliefs toward the deterrence effect of the death penalty against drug- related crimes. Singapore is well known for globally advocating the use of the death penalty to other countries who are fighting drug-related crimes. Furthermore, Singapore is also the current chair of the ASEAN Intergovernmental Commission on Human Rights (AICHR) and also this
year’s ASEAN chair. Their active advocacy for the death penalty will mean that it will be significantly more difficult for abolitionist movements to put their agenda on the regional table.
 
Finally, the lack of internalization of human rights norms in Southeast Asia means that human rights issues such as the death penalty are often under threat by changing political circumstances. In Brunei, the de facto moratorium against the death penalty does not mean that human rights activists can rest assured. A recent adoption of ‘stoning’ in the increasingly conservative country as a means of execution shows that the Sultanate still considers the death penalty as a viable instrument.
 
The death penalty has also been considered as a move to bolster the legitimacy/ popularity of political figures. While Duterte is a prominent example, he is not alone as Indonesia’s Joko Widodo has also done the same. In 2015, not long after he assumed office, a number of executions were carried out in Indonesia and have been interpreted as a political tour-de- force by Joko Widodo to counter public perceptions that he was not assertive enough and was a weak leader when compared to his political rival during the 2014 presidential election. At that time, Joko Widodo also claimed that Indonesia was in a state of drug emergency to justify the executions of drug-related offenders.
 
Conclusion
 
There has been some traction in the movement to abolish the death penalty in Southeast Asia. However, this progress should not be taken for granted. The challenges toward abolishing the death penalty remain as countries still believe in the deterrence effect of the death penalty coupled with the lack of internalization of human rights in general. This situation allows for the exploitation of the death penalty issues for political gains.
 
Fortunately, the challenges are nothing new. Southeast Asia was never well known for its commitment toward human rights. The road to truly abolishing the death penalty, as ever, will still have a long way to go. As such, it is a path that needs political will by national leadership to expedite the abolition of death penalty.
 
One silver lining is that this region is also home to civil society organisations that work tirelessly to end the death penalty. They are also supported by the existence of independent national human rights commissions, who are mostly strong advocates on the abolition of the death penalty, such as the National Commission of Human Rights in Indonesia and the Campaign for Human Rights in the Philippines. In this sense, the traction that the movement has gained so far means that the time is ripe for this movement to keep up their momentum and to stop death penalty: one person at a time, one law at a time, one country at a time.
 
 
 
Endnotes
1. Philippine Daily Inquirer,“IN THE KNOW: Death Penalty”, http://newsinfo.inquirer.net/785954/in-the-know-death- penalty
2. Phnom Penh Post, 2012,“Death Penalty has no place”, http://www.phnompenhpost.com/national/death-penalty- has-no-place
3. ABC News, 2012,“Singapore loosens capital punishment laws”, http://www.abc.net.au/news/2012-11-15/an- singapore-loosens-drug-laws/4374934
4. Aljazeera, 2015,“Vietnam abolishes death penalty for 7 crimes”, http://america.aljazeera.com/articles/2015/11/27/ new-law-in-vietnam-abolishes-death-penalty-for-7-crimes. html
5. The Straits Times, 2017,“Thailand moves towards abolishing death penalty”, http://www.straitstimes.com/ asia/se-asia/thailand-moves-toward-abolishing-death- penalty
6. Channel News Asia, 2017,“Malaysia parliament removes mandatory death penalty for drug offenders
Read more at https://www.channelnewsasia.com/news/ asiapacific/malaysia-parliament-removes-mandatory-death- penalty-for-drug-9456748”, https://www.channelnewsasia. com/news/asiapacific/malaysia-parliament-removes- mandatory-death-penalty-for-drug-9456748
7. ABC News, 2018,“Indonesian death penalty laws to be softened to allow reformed prisoners to avoid execution”, http://www.abc.net.au/news/2018-01-11/indonesia-to- soften-death-penalty-stance/9320900
8. Human Rights Wtach, 2018,“Philippines: Duterte’s ‘Drug War’ claims 12,000+ lives”, https://www.hrw.org/ news/2018/01/18/philippines-dutertes-drug-war-claims- 12000-lives
9. Death Penalty Worldwide, 2018,“Indonesia”, https:// www.deathpenaltyworldwide.org/country-search-post. cfm?country=Indonesia
10. Retno Marsudi, 2018,“Pernyataan Pers Tahunan Menteri Luar Negeri RI 2018”, https://www.kemlu.go.id/id/pidato/
menlu/Pages/PPTM2018%20MENLU%20RI%20IN.pdf
 
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