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3 posts from November 2012

11/26/2012

Foreign Relations, Reciprocity and the Abolition of the Death Penalty

Over the last month or two, Singapore and Malaysia have announced plans to reduce the scope of the death penalty, while Indonesia has commuted the death sentences of drug traffickers who were sentenced to death.  While human rights activists and abolitionist governments have applauded these measures, few have taken note of the foreign relations concerns that animated each decision. 

When Malaysia’s government announced that it would likely abolish the mandatory death penalty for certain categories of drug traffickers, Law Minister Datuk Seri Mohamed Nazri Abdul Aziz explained that close to 250 Malaysians had been arrested as drug mules and sentenced to death in countries such as China: "[H]ow are we to appeal for leniency from other governments for Malaysians who are in death row in their countries when we hand out the death sentence?"  Seventy-five Indonesians on Malaysia’s death row would be affected by this change in the law. 

Meanwhile, Indonesia’s president commuted the death sentences of a drug trafficker in October 2012, a decision that sparked a heated debate in the country. Responding to criticism, Indonesia’s Foreign Minister observed that most of the world’s nations had abolished the death penalty.  But in addition, Indonesia has emerged as a strong advocate against the death penalty for its citizens abroad, setting up a fund to prevent the execution of Indonesian domestic workers in Saudi Arabia.  As human rights lawyer Todung Mulya Lubis observed, "Indonesia does not have the right to ask for mercy for Indonesian migrant workers, to have them spared or pardoned, if we still impose that penalty in Indonesia."

Of course, European and Latin American countries have long sought to prevent the execution of their nationals by foreign governments.  Mexico, Paraguay, and Germany have all sued the United States in the International Court of Justice to prevent the executions of nationals whose consular rights had been violated. But these countries were already abolitionist—so their advocacy abroad did not lead to any changes in domestic policy.  What is happening in Southeast Asia is different.  For the first time in recent history, retentionist states are limiting the scope of the death penalty in direct response to concerns about reciprocal action by other retentionist states.  And this, in turn, reflects a shift in public perceptions about the death penalty.  Indonesians care about the fate of vulnerable Indonesian domestic workers who could be beheaded by Saudi swordsmen.  Malaysians are beginning to recognize that drug mules are often compelled to carry drugs across borders because they are desperately poor and vulnerable to exploitation.  While neither country is apt to abolish the death penalty entirely in the forseeable future, abolishing the mandatory death penalty for Malaysian drug traffickers could save hundreds of lives and vastly reduce executions in a part of the world that has long been resistant to the implementation of international human rights relating to capital punishment.

-- Sandra Babcock

11/23/2012

Zimbabwe’s New Constitution Would Restrict Death Penalty to Aggravated Murder

Death Penalty Worldwide recently updated its entry for Zimbabwe. The retentionist African country continued to hand down death sentences in 2012; however, Zimbabwe is now into its eighth year without any reported executions. The last execution was carried out in 2004. Approximately 50 death row inmates were awaiting execution at Chikurubi Maximum Security Prison as of 2011.

In July of this year, the Constitution Select Committee (COPAC) released the final version of its draft constitution, which includes language that would restrict the imposition of the death penalty to murder committed in aggravating circumstances. According to the final draft, the death penalty cannot be imposed on women, persons under the age of 21 when a crime was committed, and persons over the age of 70. The new constitution must be approved through a referendum before it becomes official law, and a date has yet to be set for the vote.

Full abolition, however, is not expected in the short term. The Zimbabwean government rejected recommendations to install an official moratorium or commute death sentences at its 2011 Universal Periodic Review. However, recommendations to “consider ratifying” the Second Optional Protocol to the ICCPR and to “take measures” to abolish the death penalty were accepted. The Zimbabwean government delegation stated that the death penalty was under consideration in its constitution-making process. Once a position was established through the new constitution, Zimbabwe said it would then consider ratifying the Second Optional Protocol to the ICCPR.

The full updated entry on Zimbabwe is available here.

--  Sophia Bairaktaris

11/01/2012

Indonesia’s Supreme Court, President Commute Death Sentences for Drug Offenders

Earlier this year the Supreme Court of Indonesia vacated the death sentence of a convicted narcotics producer and distributor. In its place, the court handed Hengky Gunawan, who was arrested in 2007 for running a large ecstasy production operation, a 15-year sentence. The ruling, which was quietly made in April but made public earlier this month, has sparked curiosity and controversy concerning the retentionist country’s position on the death penalty. The Supreme Court’s ruling reportedly said that the death sentence was in violation of Article 28 of the Indonesian Constitution, which provides for rights to life and to remain free from torture that are “fundamental human rights that shall not be curtailed under any circumstance;” and Article 3 of the U.N. Universal Declaration of Human Rights.

“The judges considered the ruling to be against human rights,” court spokesman Joko Sarwoko told the Jakarta Globe. However, the spokesman also reportedly stated that the ruling did not represent a shift in the court’s opinion and should not be held as a precedent for future cases concerning drug offenses. According to the Indonesian Penal Code and laws, several drug offenses are punishable by death, including drug possession; the involvement in manufacturing or trafficking; involving children in production, trafficking or use of narcotics; and the abuse or possession of psychotropic drugs “in an organized manner.”

Shortly after the court issued its decision, President Susilo Bambang Yudhoyono commuted the death sentence of convicted drug mule Deni Setia Maharwa to life in prison. The president’s decision, while drawing criticism from politicians and anti-narcotics activists, was distinguished from that of the court by Justice and Human Rights Minister Amir Syamsuddin. Needing to support his family and pay off a car loan, Deni had agreed to carry 3.5 kilograms of heroin and 3 kilograms of cocaine to London. The president reportedly took those facts into consideration before commuting his sentence. Amir told the Jakarta Globe that the president would not have granted clemency to a major producer and distributor as the court did.

According to The Jakarta Post, Amir stated at a press conference on Oct. 16 that the president has commuted the death sentences of three other inmates to life in prison since 2007. While Indonesia has not adopted the Second Optional Protocol to the ICCPR, it is possible that the Indonesian government is shifting its position concerning the death penalty in response to its efforts to prevent the executions of Indonesian migrant workers  who are currently on death row abroad. The last executions in Indonesia were carried out in 2010.

 

--Sophia Bairaktaris