Thailand Law Journal 2014 Spring Issue 1 Volume 17

II. The Death Penalty and Drug-Related Crimes in Vietnam: Legal, Principal, and Practical Issues

Illicit drugs and drug related crimes challenge the capacities of law enforcement agencies and criminal justice systems around the world (Ackerman et al. 2013). An international anti-narcotics regime has emerged to criminalize and eradicate the trade in harmful substances, principally heroin, cocaine, cannabis and amphetamine and methamphetamines such as "ecstasy" and "ice". In international law, the United Nations Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971) and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) require international cooperation to combat illicit drugs, but compliance or implementation at the national level has proven difficult, even for developed countries. While economic growth and regional integration bring many positives such as the increased mobility of goods, services, people and money, they also provide opportunities for transnational drugs trafficking to threaten human security and challenge the rule of law in Vietnam (AIPA 2010). For developing countries, like Vietnam, illicit drug production and trafficking directly and indirectly threaten social stability and economic welfare (Hui 2011). Moreover, transnational narcotics trafficking also negatively affects international cooperation and the relationship between Vietnam and other countries regionally and internationally (Phuc 2011). In fact, drugs trafficking networks take full advantage of the transportation, communication, and technology to employ their networks and operations, although ominous warning about the serious perils of drug trafficking abound in the media and are stipulated in the legal regulations with the strict sentences (Leechaianan & Longmire 2013; Mahathir 2013).

1. Law and its Regulations

As in any country, practices and principles of law and punishment have changed in Vietnam over time. Historically, in Vietnam, drugs regulation and rule concentrated on 'rehabilitative based education' (Hoa, NN 2001, 2005; Tiep 2003) , although the death penalty has existed in both official and unofficial legal documents since the feudal regimes (Chi 2012, p. 42). In one of the first legal documents of the Nguyen's Dynasty, published since 1815,¹⁰ King Gia Long wrote that "…the rehabilitated education first, the punishment second… This general provision was stipulated and regulated through the long history of Vietnamese' feudal regimes, including Ly, Tran, and Le' Dynasties" (Thanh, Trinh & Huu 2002). However, there are considerable changes in establishing and implementing criminal regulation after Vietnam became a French colony, between 1858 and 1945. Alongside the establishment of a colonial regime, the French also set up and applied their own legal system in Vietnam, which was based on the famous Napoleonic Codes to replace the French sought feudal regimes' criminal law (Uc 2003). The country was the divided into three territories, namely Cochinchina (Southern part), Annam (Central part), and Tonkin (Northern part) and each of them was installed under a different legislative system. In particular, the North of Vietnam (Tonkin) was an autonomous territory with separate legal branch: the Civil Code of Tonkin since 1923 (Federal Research Division 2005; Uc 2003). Besides this Civil Code, there are three other significant Acts to support and implement its criminal and punitive policies, including law on the organization of the courts with 37 articles, law on criminal procedures with 211 articles, and law on crime with 328 articles (Uc 2003). There is neither available statistics nor official data to record the number of death sentences under French colonial rude (Giang 2010).

However, apart from the application death penalty for crimes under the criminal law, under historical, cultural, social, and policy approaches, the French regime executed opponents by guillotine punish those who protested their colonial policies (Chi 2012; Giang 2010; Ngu 2009; Uc 2003) . Ending France's war by the Revolution on the August 1945 and the United States' war by the Unification in 1975, Vietnam built a new regime to re-construct the country. At that time, the legal system and punishment were also developed to establish and improve society and nation (Chi 2012; Ngu 2009).

The Criminal Code of the Socialist Republic of Vietnam (CCV) published in 1985 was the first official legal statement of criminal law after Vietnam's reunification in 1975. In particular, this Code specialized punitive regulations and its applications as one of the legal mandates (Tiep 2003). Furthermore, apart from other penalties, the death penalty is stipulated as one of the 6 principal sentences in the Vietnamese punishment system, including warning; fine; non-custodial reform; termed imprisonment; and life imprisonment (Huyen 2006). In the 1985 CCV, conditions, scopes and subjects of application of the death penalty was also regulated (Ngu 2009). The death penalty was only available for offenders in "very serious cases" such as violation of national security; crime against peace; crime against humanity; war crime; socialist property violation; and violation of human dignity such as health violation, murder and rape (Nam 2003). However, the 1985 CCV did not stipulate the death penalty for drug offences (Ngu 2009).

Based on the distinct conditions and changes of country, the 1985 CCV has been amended four times. In the first amendment and supplementation on December 1989, there are four offenses of drug in Article 96a could be executed penalty of death. On 12th August 1991, it has till regulated the death penalty for other crimes, namely fraud, misappropriating socialist assets (Article 134); fraud appropriating private property of citizens (Article 157); bribery (Article 226). Thirdly, on 22nd December 1992, the Vietnam's government has continued to amending and supplementing a number of articles of the 1985 CCV more specifically and clearly with death penalties' forms for the crime of smuggling. On 10th May 1997, with the final adjustment, the death penalty was extended to six other offenses, including crime of abuse positions and fraudulent appropriation of society's property (Article 134a); abusing positions and powers fraudulent appropriation of property own citizens (Article 185e); enticing others to use illegal drugs (Article 185m). Simultaneously, lawmakers also split Article 96a into 4 new articles, namely Article 185b, 185c, 185d, 185đ, and retains the death penalty for these crimes. Regarding to rape's stipulations, it was divided into two charges of rape and rape against child (Article 112a) and also retain to apply the death penalty (Toan 2012).

Overall, after four amendments and supplementations, the 1985 CCV prescribed the death penalty for 44 crimes, accounting for 20.37 per cent of the total 216 articles. It is an increase of the death penalty in quantity and percentage in comparison to the original version of the 1985 CCV. In the 1999 CCV, the capital punishment was reduced to 29 articles as in the original version of 1985 CCV.¹²

There are some key differences between the 1985 and 1999 CCV. First, according to Article 35 of the 1999 CCV, the death penalty is considered a special type of penalty and only applied to "particularly serious crimes", while under Article 27 of the 1985 CCV "very serious cases" (Toan 2012). Secondly, only two subjects, juveniles and pregnant women at time commit or trial, will be not received the death penalty under the 1985 CCV. In contrast, women raising children (including adopted children) under 36 months at the time of committing crimes or trial are exempted (Thao 2013). In these cases, persons sentenced to death enjoy commutation of the death penalty to life imprisonment (Huyen 2006). Thirdly, while in the 1985 CCV regulates to only "suspend" execution for women who are serving children under 12 months of age, the 1999 CCV does not "enforce" regulations death penalty for women who are raising children under 36 months of age (Thao 2013; Toan 2012).

international human rights treaties, such as the United Nations International Covenant on Civil and Political Rights (ICCPR) and the United Nations International Covenant on Social, Economic, and Cultural Rights (ICSECR) to which Vietnam acceded in 1982. Giving effect to Resolution No.08 and No.49, the 1999 CCV abolished the death penalty for eight crimes which substituted by life imprisonment.¹⁴ At the same time, the 1999 CCV also added the death penalty to charges of terrorism (Article 230A). Vietnam demonstrated firm its commitment to combat terrorism along with international community in this battle. Thus, after 10 years of implementation of the 1999 CCV, the death penalty in the current criminal law (as amended in 2009) only applies to 22 specified criminal acts, accounted for about 8 per cent of the CCV. These changes and adjustments are not only reduce the death penalty, but also reflected Vietnam's policy to limit and toward abolition in the future.