The execution of eight people in Indonesia in April heightened debate about the death penalty, not only in Southeast Asia. Seven of those executed were foreigners – two Australians, a Brazilian, a Ghanaian and three Nigerians – and all had been convicted of drugs offences.
Capital punishment was high on the agenda at the ASEAN People’s Forum, which took place in the Malaysian capital Kuala Lumpur just days before the executions, and it is the subject of a regional congress to be held in KL in June.
At the ASEAN forum, lawyers and human rights activists called for an immediate moratorium on the use of capital punishment, with a view to complete abolition.
More people are executed in Asia than in the rest of the world and there is strong public opinion in the region in favour of capital punishment. Amnesty International says that at least 37 executions were carried out in 2013 in 10 countries in the Asia-Pacific region, and this figure doesn’t include the thousands of executions believed to have taken place in China.
However, the anti-death penalty lobby in Asia is very active. In line with the worldwide trend, the abolition of capital punishment has increased in the region over the past decade. The number of executions in Asia has decreased, some governments have imposed more rigorous limits on the use of the death penalty, and the debate is opening up.
In its report on death sentences and executions released last year, Amnesty International said that, while some setbacks were recorded in the Asia-Pacific region in 2013, positive steps in a number of countries showed that, even among traditional supporters of the death penalty, progress towards abolition was tangible.
There were worldwide appeals for clemency in the run-up to the latest executions in Indonesia. Australia was outraged that two of its citizens – the leaders of the Bali Nine drug-smuggling gang, Andrew Chan and Myuran Sukumaran – were executed, and recalled its ambassador from Jakarta.
Another of those executed in April was a Brazilian, Rodrigo Gularte, who was mentally ill. Critics of his execution said he should not even have been brought to court. He spoke neither Indonesian nor English, but didn’t have the help of a sworn interpreter.
Six other detainees convicted on drugs charges were executed in Indonesia in January.
The Indonesian authorities defend their hard-line position, saying the country faces a massive problem of drug addiction. Abolitionists say, however, that there is no proof that capital punishment reduces drug trafficking.
About half of the people on death row in Indonesia have been convicted of drug-related offences and many are foreigners.
Malaysia, Singapore, and Vietnam also actively use the death penalty, and all impose it for drug trafficking. There have been no reported executions in Thailand, however, since 2009.
Amnesty says it cannot confirm reliable figures for Malaysia and North Korea and, in Vietnam, publishing statistics on the use of capital punishment is still prohibited.
Five Asian countries have abolished the death penalty for all crimes: Cambodia in 1989, Nepal in 1997, Bhutan in 2004, the Philippines in 2006, and Mongolia in 2012.
Brunei, Laos, and Myanmar have had de facto moratoriums on the death penalty for decades. There have been no known executions in Myanmar since 1989, nor in Laos since that time.
In January last year, the government in Myanmar commuted all death sentences to life imprisonment. Amnesty said, however, that at least three death sentences were imposed in Laos in 2013.
There have been 21 executions in Singapore since 2007. Malaysia is one of several Asian countries that do not publish any statistics about the use of the death penalty, but, according to Amnesty International’s Death Sentences and Executions Report, there were an estimated 992 people on death row in the country in 2013.
India resumed executions and extended the scope of capital punishment in 2012 and Pakistan did the same in 2014.
The June congress in KL is being jointly organised by the organisation Together Against the Death Penalty (Ensemble contre la peine de mort, or ECPM), which is based in France, and the Anti-Death Penalty Asia Network (ADPAN), which was founded in Hong Kong on the World Day against the Death Penalty in 2006.
Other partners are the Human Rights Commission of Malaysia (SUHAKAM) and the Malaysian Bar Council.
ADPAN is an independent, cross-regional network that groups together NGOs, lawyers, civil society groups, and individuals who are campaigning for an end to the death penalty in Asia and the Pacific region. The network currently has members in 28 countries, not only in Asia, but also in Europe, Australia, and the United States.
The executive director of the ECPM, Raphaël Chenuil-Hazan (pictured left), says that governments that retain the death penalty consider it exclusively a matter of national law. “However, the use of the death penalty contravenes international norms and the founding principles of law,” he said. “The verdict is too often issued after an unfair trial. Most of the time, it is discriminatory, or handed down for non-violent crimes or to individuals who were underage when the crime was committed.”
In countries that have abolished capital punishment, pro-death penalty movements regularly challenge the idea of abolition, Chenuil-Hazan adds. “Furthermore, the risk remains that de facto abolitionist countries, which have not executed for many years, will resume executions.”
During a workshop at the ASEAN forum entitled “The death penalty in Southeast Asia: towards a regional abolition”, Ted Tan Hwee Ming, who is the executive secretary of Singapore’s human rights group, Think Centre, said there were four executions for murder in Singapore in 2008. In 2009, three people were executed for drugs offences and, in 2011, there were two executions for murder and two for drugs offences.
There were no executions in Singapore in 2010, 2012, or 2013. In 2010, Tan points out, Singapore began negotiations with the European Union over a free trade accord, and the partnership and cooperation agreement included social and human rights elements. This, he says, may have been an influencing factor that year.
After a review, a series of amended laws were enacted in 2013. After legal processes were exhausted, executions resumed.
Tan says he expects executions to continue in Singapore, but he thinks the numbers will decrease and the death penalty will only be imposed in cases of heinous crimes.
“At international forums, Singapore is one of the biggest cheerleaders for the death penalty,” he added. The government, he says, doesn’t consider it to be a human rights issue, but one of “criminal justice”.
In Malaysia, the death penalty is mandatory for three types of offence: murder, drug trafficking, and offences related to terrorism. Most of those executed have been convicted of drugs offences.
Section 39(b) of Malaysia’s 1952 Dangerous Drugs Act requires the death penalty for drugs-related offences.
The deputy secretary for policy, law, and complaints at SUHAKAM, Nurul Hasanah Ahamed Hassain Malim (pictured left), told participants at the ASEAN workshop that SUHAKAM was very firm in its stance that the death penalty is against human rights “simply on the basis that it violates the right to life”.
The commission, she said, recognised the challenges involved in saying this to the government. “The language of the commission is that if the government is maintaining the death penalty, it should only be implemented in cases of most serious crimes. The International Covenant on Civil and Political Rights (ICCPR) defines this as only murder.”
Twenty-five states, including Malaysia, have not signed the ICCPR.
SUHAKAM is still awaiting a government report, which was scheduled to be released in December last year, on whether the mandatory death penalty requirement should be removed in drugs-related cases.
The commission has worked with the European Union in its campaign for abolition and has organised debates in universities and an exhibition about the death penalty. It organised a dialogue with MPs in Parliament House, but only a few turned up. “One of the biggest battles is to convince the lawmakers in the country,” Nurul Hasanah said.
The commission also researched public opinion among 500 university students. The results were very similar to the findings of criminology professor Roger Hood, who produced a comprehensive report on Malaysian public opinion about the mandatory death penalty for drug trafficking, murder, and firearms offences.
“Ninety seven percent of the respondents to our survey said they were in favour of the death penalty, but when we gave them different scenarios, with mitigating factors, there was a decline in the support,” Nurul Hasanah said. There was support for capital punishment in the case of heinous crimes, but the respondents favoured alternative sentencing in drugs-related cases.
Hood found that most Malaysians questioned in his study¹ were not against abolishing mandatory capital punishment for drug trafficking and firearms offences. Fewer than half of the respondents favoured the mandatory death penalty in such cases. The respondents were given six different scenarios, and there was never more than 30 percent in favour of capital punishment.
“Although a majority of Malaysians had said they favoured the death penalty for drug trafficking and firearms offences, the evidence of this survey, which tested what proportion would, in fact, enforce it, suggests that there would be relatively few who would oppose its complete abolition,” Hood concluded.
His conclusion, Hood said, also applied to the mandatory death penalty for murder. “It was clear that when faced with the reality of punishment, the majority of Malaysians favoured being able to exercise discretion whether or not to sentence persons convicted of murder to death.”
Hood found that the level and strength of support among Malaysians for the death penalty for murder was lower than perhaps commonly supposed.
Hood says there have been no executions in Malaysia since 2010.
“In Malaysia, we need to educate not only the MPs, but also the public, about the death penalty,” Nurul Hasanah said. One challenge, she said, was the government seeing the death penalty as a deterrent to crime, and another was that removing the death penalty would be seen as going against Syariah (Islamic) law.
SUHAKAM has recommended that the government implement a moratorium on the death penalty for anyone who has been in prison for more than five years and hasn’t received their final sentence.
In 1987, the Philippines became the first Asian country to abolish the death penalty for all crimes, but in December 1993 a law was passed reintroducing capital punishment for 46 crimes, 25 of which carried a mandatory death sentence and 21 of which were eligible for the death sentence. A year later, there was a shift from using the electric chair to lethal injection.
Under President Joseph Estrada’s administration, seven prisoners were executed after being convicted of heinous crimes covered by mandatory capital punishment.
The executive director of the Philippines’ Human Rights Information Centre, Nymia Pimentel-Simbulan, told participants at the ASEAN workshop that in 1999, when most of the executions took place, the national crime volume went up. This was contrary to the common perception that the death penalty would be an effective deterrent.
There was later a de facto moratorium, and abolition again in 2001. The anti-death penalty campaign benefited from the then president, Gloria Macapagal-Arroyo, going to Rome and having an audience with the Pope. “She wanted to present a positive image of her administration,” Pimentel-Simbulan said. “This contributed to her eventually taking an anti-death penalty position.”
A wide variety of human rights NGOs and other civil society organisations, including church groups, joined forces to campaign against the death penalty in the Philippines.
“The Catholic Bishops Conference of the Philippines, which is one of the most powerful organisations in the country, was a partner in the campaign to have the death penalty abolished,” Pimentel-Simbulan said.
“Also, there were anti-death penalty champions among our senators and congress people, and we were able to mobilise the relatives of death penalty convicts – the mothers, wives, and children of people on death row. We also had the support of the diplomatic community, primarily the European Commission in the Philippines.”
Pimentel-Simbulan advocates approaching the victims of heinous crimes and their friends and relatives. They might be expected to be in favour of the death penalty, she says, but can be supporters of abolition.
The campaigners researched crime statistics and the history of the death penalty in the Philippines, going back to the time of Spanish colonial rule. They carried out a mass information and education campaign and produced a book about women on death row, entitled “Invisible realities, forgotten voices”.
When the deaths sentences were carried out in Indonesia in April, two people who had been scheduled for execution were given an unexpected reprieve. One was a Frenchman, Serge Atlaoui, and the other was Mary Jane Fiesta Veloso from the Philippines (pictured below).
In Atloui’s case, Indonesia agreed to allow an outstanding legal appeal to run its course. Veloso’s execution was halted because she is to give evidence in a case against alleged human traffickers.
Thirty-year-old Veloso is a single mother of two young children, who was illegally recruited to work as a maid in Malaysia. She was arrested at Indonesia’s Yogyakarta airport after the authorities found 2.6 kilos of heroin in her suitcase. She was found guilty and sentenced to death later that year. She says the drugs were planted in her bag without her knowledge.
Those campaigning for clemency for Veloso point out that she was not provided with a lawyer or translator when she was arrested and, during her trial, the court-provided interpreter was not licensed by the Association of Indonesian Translators. Her lawyer was a public defender provided by the Indonesian police.
Veloso was convicted just six months after she was arrested. Public prosecutors asked the court to sentence her to life imprisonment, but the judges handed down a death sentence.
Puri Kencana Putri, who heads the research bureau at the Commission for the Disappeared and Victims of Violence (KontraS), told the ASEAN workshop participants that KontraS had conducted a six-month fact-finding mission about the preceding executions in Indonesia in January.
The Brazilian detainee, Marco Archer Cardoso Moreira, didn’t receive the last sacrament, Puri said, and this was a human rights violation. There was also a case of mistaken identity in the case of one detainee, and it is still not clear who was executed.
“We also believe there was a strong element of torture in the six cases,” Puri said. KontraS has also been told by a Catholic bishop who witnessed the executions that the majority of the detainees were still alive for about 15 minutes after they were shot. “The head of the firing squad had to shoot them in the forehead,” Puri said.
Another Indonesian speaker, sociology professor Robertus Robet from the Jakarta National University, said there had been 32 executions in Indonesia since 1988: 17 for murder, 12 for drugs offences, and three for terrorism. (This figure increased with the eight executions on April 29.) Robertus said 229 Indonesian citizens were facing the death penalty overseas, including 151 convicted of drugs offences.
Thirty-six Indonesians are on death row in Saudi Arabia, and two were executed there in April.
Robertus said the use of the death penalty had escalated since Joko (Jokowi) Widodo became president. Six people were executed within his first 100 days of office.
“Drugs kingpins are seldom charged, let alone put to death; rather it is the lowly traffickers and drug users who suffer the most grievous of punishments,” Robertus said.
Rafendi Djamin (pictured left), who represents Indonesia on the ASEAN Intergovernmental Commission on Human Rights (AICHR), points out that respect for human rights and fundamental freedoms, is already enshrined, as a principle and a purpose, in the ASEAN charter. “It is not just a politically, declaratory intention; it is a legally binding commitment.”
Nations use the “legal sovereignty” argument when defending their right to implement the death penalty without outside interference, Rafendi says, but “a strict application of non-interference is no longer relevant, and has not been relevant since 1993”. The death penalty is not a one-state issue, he says; it concerns all countries.
Rafendi says he is optimistic. The trend in Asia, he says, is going in the right direction – towards respecting the right to life, and bringing in a death penalty moratorium. “Even a country like Singapore is reviewing the mandatory death penalty. Even Malaysia is beginning to think about it.”
Rafendi said the AICHR would continue working to raise awareness within ASEAN countries and would host a human rights workshop for the judiciary in the region, which would include discussion about the death penalty. “I hope,” he said, “that this regional process will influence Jokowi to review his policy and move to a moratorium.”
The death penalty worldwide
Amnesty International says that, during 2013, and excluding China, 778 executions took place in 22 countries. This is a considerable increase on the 682 executions carried out in 2012.
China has the highest execution rate in the world. Amnesty says its monitoring indicated death sentences “in the thousands” in 2013, but the organisation is unwilling to attempt a more specific estimate because of the refusal of Chinese authorities to make statistics public.
The San Francisco-based Dui Hua foundation, which works to uphold human rights in China and America, estimates that approximately 2,400 people were executed in China in 2013. This, the foundation says, is 20 percent fewer than in 2012.
According to Amnesty statistics, at least 369 executions were carried out in Iran in 2013, and 169 in Iraq. Saudi Arabia executed 79 people and the United States 39. Somalia carried out 34 executions.
The number of death sentences handed down worldwide decreased from 2,024 in 2010 to 1,923 in 2011.
Worldwide, 54 countries still retain the death penalty; they include the United States and Japan. More than a thousand death sentences were pronounced in 17 countries in 2013. Ninety-eight countries have abolished the death penalty in all circumstances. Seven others have abolished it for common crimes, and 35 countries have implemented a moratorium on executions for at least 10 years.
Every year, there are new countries either abolishing capital punishment or moving towards abolition:
- In January 2012, Mongolia ratified the Second Optional Protocol of the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty.
- Also in January 2012, Latvia abolished the death penalty for all crimes.
- In November 2011 and January 2012 respectively, Honduras and the Dominican Republic ratified the Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
- In the United States, in March 2011 and April 2012 respectively, Illinois and Connecticut became the 16th and 17th states to abolish capital punishment.
Creating a campaigning network
Lawyer Ngeow Chow Ying, who is vice-chairman of the Kuala Lumpur and Selangor Chinese Assembly Hall’s Commission for Human Rights, and is one of the organisers of the upcoming congress in KL, says he hopes the event will open up the way to abolition of the death penalty in the Asia-Pacific region. “We hope to consolidate the different perspectives of government agencies, civil society, academicians and the media. It is important that each stakeholder leaves the congress with a project that will further our common goals.”
Ngeow Chow Ying said he would like the congress to clear up the preconceived idea that the death penalty could solve ongoing social issues related to drug addiction and abuse.
The former president of Timor and 1996 Nobel Peace Prize Laureate, José Ramos-Horta, is due to attend the congress. Ngeow Chow Ying said he hoped Ramos-Horta would help anti-death penalty campaigners to get their message across to parliamentarians.
It is hoped that Malaysia’s law minister, Nancy Shukri will be able to attend. “I hope Nancy Sukri will be able to shed light on the comprehensive studies the Malaysian government has conducted about the mandatory death penalty,” Ngeow Chow Ying said. “We need to hear the government’s view on this issue and the direction it wants to take.”
He said he hoped the regional congress could become a regular event in Asia. “We could strengthen our presence and influence in the region by developing action strategies for the NGOs and by creating a common and efficient networking platform.”
Ngeow Chow Ying began campaigning against the death penalty after the Kuala Lumpur and Selangor Chinese Assembly Hall’s Civil Rights Committee (CRC) gave support to Yong Vui Kong, a young Malaysian sentenced to death in Singapore for drug trafficking.
In 2010, the CRC campaigned for clemency for Yong Vui Kong. “We ran a national roadshow, organised forums and art exhibitions, and launched a petition,” Ngeow Chow Ying said. “Thanks to those events, a public debate on the death penalty started in Malaysia, and Yong does not live with the fear of being executed anymore. In 2013, his sentence was commuted to life imprisonment.”
Congress project coordinator Timothée de Maillard says ordinary citizens, human rights activists, and members of the legal profession who voice their opposition to the death penalty in retentionist countries face considerable political, legal, or religious obstacles on a daily basis.
“Often part of a minority, they strive to make their voices heard by an ill-informed public opinion that wrongly thinks that the death penalty is an essential way of efficiently combating crimes.”
The United Nations Human Rights Committee has concluded on several occasions that drug trafficking does not meet the threshold of “most serious crimes”. Imposition of the death penalty in such cases therefore goes against Article 6 of the International Covenant on Civil and Political Rights.
“This violation of international standards and the lack of transparency are subject to growing contestations,” De Maillard said. There have been positive outcomes such as the Malaysian government’s review of the mandatory death penalty for certain drug-related offences, he says. “The upcoming regional congress will be a great opportunity to think about the progressive abolition of the mandatory death penalty.”
Over recent decades, Asian civil society’s commitment to abolition has increased, De Maillard adds. “The Malaysian abolitionist movement, led by ADPAN, SUHAKAM, and the Bar Council of Malaysia, has strengthened.
“The cooperation of these structures for this regional congress will reinforce and empower the existing Asian abolitionist movement, making it more visible at the global level.”
1) In Hood’s study, 1,535 Malaysians were interviewed between November 8 and December 28, 2012.