Warwick ASEAN Conference

Death Penalties and Drug Possession: Capital Punishment for Drug Offences in Southeast Asia

On 15 October 2021, Harun Jalmani, a 55-year-old fishmonger, was sentenced to death in Sabah, Malaysia for the possession and distribution of illegal narcotics. Controversy swept Malaysia’s digital space when a video of the single mother of nine, handcuffed and sobbing as she was being led away by a police officer, went viral on social media platforms like TikTok and Twitter. The tragic incident brought the debate on death penalties for drug crimes back into the public consciousness; some claimed that she knew the risks of her actions and was simply on the receiving end of justice, while others condemned mandatory death sentences as ineffectual against drug crimes and championed abolishment. With the world trending towards abolishment and reduced rates of executions, the death penalty is only going to become increasingly controversial going forward.

Penalties for drug possession and trafficking vary greatly across Southeast Asia. Cambodia and the Philippines do not have standing laws permitting capital punishment, while Brunei, Myanmar and Laos are considered “abolitionist de facto”, as these nations have not carried out executions in over a decade; Brunei’s last execution was in 1957, Myanmar’s in 1988 and Laos’s in 1989. Of the remaining five nations, the last instances of capital punishment carried out for drug offences were:

  • Indonesia: In 2016, 4 inmates were executed.
  • Malaysia: In 2017, 4 or more inmates were executed, though the precise number was difficult to determine due to government secrecy.
  • Thailand: In 2009, 2 inmates were executed.
  • Singapore: In 2019, 4 inmates were executed.
  • Vietnam: The precise number of executions carried out in 2020 was difficult to determine due to government secrecy, but it is estimated that the rate of executions was similar to that in 2018, when 85 or more inmates were executed.

The rise in the unpopularity of capital punishment is in no small part due to the activism of human rights organisations such as Amnesty International and The Death Penalty Project. Many such organisations quote the International Covenant on Civil and Political Rights (ICCPR), of which Cambodia, Indonesia, Laos, the Philippines, Thailand and Vietnam are signatories, while Brunei, Malaysia, Myanmar and Singapore are neither signatories nor parties. The ICCPR states that “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…”, and certain legal experts claim that drug offences do not rise to the level of ‘most serious’ crimes. It has also been argued that overly punitive penalties for low-level offenders are counterproductive to public health, and do not serve to combat drug epidemics but instead embolden the transnational organised crime organisations that lie at the root of illegal drug markets.

Human rights organisations have also taken issue with the treatment of prisoners on death row and fair trial concerns in capital drug sentencing. For instance, as of 2019, 44% of death row inmates in Malaysia were foreign nationals, who faced obstacles in obtaining consular assistance and interpretation. Furthermore, there was often mistreatment of defendants, and detainees commonly found themselves facing torture and bodily harm. These were issues only exacerbated by the Covid-19 pandemic, as the limitation and suspension of prison visits meant that prisoners’ access to legal aid was severely crippled. In Indonesia, a lawyer claimed that while some prison officers did facilitate video calls between inmates and their legal counsel, the call usually took place on the prison officer’s personal phone, and because prison staff remained in the room, the legal team was unable to communicate confidentially with their clients, and “could not clarify the facts and explore potential mitigating factors.”

As a result of capital punishment’s divisiveness and increasing unpopularity, many ASEAN countries have ostensibly taken steps to revise the legislation surrounding drug crimes and mandatory death sentences. Malaysia imposed a moratorium on executions in 2018, while a survey in Indonesia showed that respondents were less likely to favour capital punishment when questioned on specific scenarios (e.g.: death penalties for poor and uneducated drug mules) and when given possible alternatives to execution.  In 2021, a draft law on drug offences was put in place in Thailand to amend the situations where the death penalty may be issued. A law professor explains that “if the draft is approved by parliament, the death penalty will be limited to two main categories in regard to listed drugs, namely, against those at the top of the drug-trafficking echelons and in regard to national security.”

This is however by no means a universal trend. The Philippines have had an on-and-off relationship with capital punishment since 1987, but current laws forgo the death penalty in favour of life imprisonment. Incumbent President Rodrigo Duterte is an avowed supporter of capital punishment for drug offences as part of his ‘war on drugs’ policy and has submitted bills that would reintroduce death penalties in Congress. Furthermore, surveys by the Ministry of Home Affairs have revealed general approval amongst Singaporeans for capital punishment, with approximately 80% of respondents ranking themselves in favour of the death penalty as a strategy of deterrence. It has also been argued in favour of Vietnam’s drug legislation that “the application of the death penalty does not mean that Vietnam is an arbitrary Party-State executing all convicted drug offenders or applying capital punishment as a mandatory approach”, as the author gives examples where Vietnam has “affirmed the international standards for the right to a fair trial” and “affirmed its commitment to ensuring human rights, including those of drug traffickers (e.g., their access to justice), when applying the death penalty”.  Evidently, the debate surrounding capital punishment and drug offences is not one that will abate any time soon. With a new avenue for mobilisation and public discussion in the form of social media, this is a topic that will continue to be controversial for years to come.

References
  1. “Harrowing cries of single mother handed death sentence captured in viral video”; Malaysiakini, 17th October 2021
  2. “The Death Penalty in 2019: Declining Use of Death Penalty Worldwide”; Cornell Law School: Cornell Centre on the Death Penalty Worldwide
  3. Amnesty International Global Report: Death Sentences and Executions 2016
  4. Amnesty International Global Report: Death Sentences and Executions 2017
  5. “Shocking resumption of the death penalty condemned”; International Federation for Human Rights, 18th June 2018
  6. Amnesty International Global Report: Death Sentences and Executions 2019
  7. Amnesty International Global Report: Death Sentences and Executions 2020
  8. Amnesty International Global Report: Death Sentences and Executions 2018
  9. “International Covenant on Civil and Political Rights”; Office of the High Commissioner for Human Rights
  10. “Death Penalty For Drug Offences: Global Overview 2020”; Harm Reduction International
  11. “Enforcement of Drug Laws: Refocusing on Organized Crime Elites”; Global Commission on Drug Policy, 7th May 2020
  12. “Malaysia: Unfair trials, secretive hangings and petty drug convictions reveal ‘cruel injustice’ of the death penalty”; Amnesty International, 10th October 2019
  13. “Malaysia says no ‘U-turn’ in death penalty abolition”; Al Jazeera, 16th November 2018
  14. Carolyn Hoyle & Parvais Jabbar, “Indonesians’ support for the death penalty declines with more rigorous survey methods”; The Conversation, 8th October 2021
  15. “Slowly moving away from the death penalty”; Bangkok Post, 22nd April 2021
  16. “Philippines and the Death Penalty”; Parliamentarians for Global Action
  17. “Most S’pore residents surveyed agree death penalty more effective than life in jail as deterrent against serious crimes: Shanmugan”; Today Online, 6th October 2020
  18. Hai Thanh Luong, “Why Vietnam continues to impose the death penalty for drug offences: A narrative commentary”; International Journal of Drug Policy, Volume 88, 2021


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