Thailand Law Journal 2014 Spring Issue 1 Volume 17

2.2. Proportionality Principle

Similar to the principle of proportionality in the Common law (Ellis 1999; Emiliou & Jacobs 1996), under Vietnamese criminal law the principle of proportionality operates to guard against the imposition of unduly lenient or unduly harsh sentences. In the Common law, this principle requires that a sentence should neither exceed nor be less than the gravity of crime having regard to objective circumstances of their cases (Fox 1993). Thus, there must be an sentence appropriate to the seriousness of offenses (Packer 1964). This requires that equal sentences be applied for offenses of equal seriousness, and that different sentencing be handed down for offenses of different seriousness (Fox 1993; Packer 1964). In other words, in Vietnam, the basic principles attracting the death penalty are an intention to violate national security and social order as prescribed in the 1999 CCV.²⁷ In addition, in Vietnam, the humanity principle requires that the courts use the least intrusive and least severe sanction possible, given the circumstances of the offence and the offender given the intended aims of the punitive sanction is to educate and assist the convicted to rehabilitate. Thus, the death penalty for drug-related offenses applies given two core conditions.

Firstly, those who have committed a particularly serious crime for illegal narcotics production (Para 4, Article 193, 1999 CCV) and for unlawful stockpiling, transporting, trading, in or appropriating narcotics (Para 4, Article 194, 1999 CCV) face the death penalty. Accordingly, their criminal acts cause exceptional harms to society and the maximum penalty for such crimes is over fifteen years of imprisonment, life imprisonment, or capital punishment (Para 3, Article 8, 1999 CCV). Secondly, if at investigation, prosecution, and trial,²⁸ the judicial bodies have enough evidence to prove that termed imprisonment or life imprisonment cannot guarantee rehabilitation, they must face the death penalty (based on Article 27, 1999 CCV, see alsoHuyen 2006). In other words, if failing for rehabilitation's abilities and efforts of society, family, and institutions make them better; not satisfying with extenuated circumstances; and even not enabling education to become honest and wellbeing in the society, only eliminate them out the society via execution could ensure "the rule of law" (Chi 2007, p. 64; Toan 2012, p. 68).

This distinguishes the death penalty policies in Vietnam from other countries. For example, in China, around 95 per cent of population support the death penalty based on the principle "a life for a life"²⁹ (Hood 2009). This attitude is equivalent to "an eye for an eye" in the lex talionis from the Old Testament (Finckenauer 1988; Fish 2008).³⁰ In addition, some Asian countries might maintain mandatory death sentences for certain drug-related offences, leaving a judge with no discretion where a defendant found guilty (Jiang 2014; Loyal 2013; Ramirez 2013) . This is the case in Iran, Indonesia, and Malaysia (Amnesty International 2013). In Vietnam, criminal trial practice is part of the general structure of the criminal law, including drug-related cases where the death penalty applies (Ngu 2009; Toan 2012). Accordingly, the death penalty is verified and analyzed at trial (Ngu 2009; Thuy 2009). Instead of a mandatory death penalty applying to drug-related offence, in Vietnam, a punishment is made about the seriousness of criminal behaviours, including the amount of drugs involved (Nicholson & Truong 2008, p. 438). According to the current criminal law of Vietnam, the large the amount of drug involved, the higher the sentence. Therefore, trial practice applying the death penalty is stated on the basis of a analysis rather than based on the "a life for a life" or "an eye for an eye". Consequently, it is also distinct feature in proportionality principle of Vietnam's criminal policies to apply the death penalty with drug-related offences in comparison to these above countries.

2.3. Fairness Principle

The fairness principle means that a sentence imposed on those convicted should be similar to offences committed in similar circumstances in order to ensure "the rule of law" (Bowers, J & Robinson 2012). According to criminal law and criminal procedure law' principles of Vietnam, all acts of criminal offenses must be timely detected and handled in a prompt and enlightened manner in strict accordance with laws (Article 3, the 1999 CCV; Article 10, the 2003 CPCV). In addition, all offenders are equal under law, regardless of their sex, nationality, beliefs, religion, social class, and status (Ngu 2009). In other words, the fairness principle prohibits distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status of the convicted go to law (Sidel 2009a). To fulfill this requirement, there must be consistency in punishment for similar offences and there should not be punitive disparities without justification. This principle ensures fairness between similarly situated cases, but allows for different motivations and purposes. For example, with the first-time offenders of less serious drug-related crimes stipulated at Para 1, Article 193 or 194, the 1999 CCV, who repented lighter penalties than imprisonment may be imposed, and they may be placed under the supervision and education of agencies, organizations, or families. In addition, the CCV refers to a "grant of leniency" to persons who make confessions, make honest declarations, denounce accomplices, redeem their faults with achievements, show repentance, and voluntarily right themselves (para 3, Article 3, 1999 CCV). For drug-related offences, this is likely to assist law enforcement agencies' investigation and prosecutions. For example, case of Sieng Pheng escaped the death penalty when he cooperated positively with anti-narcotics' police force had investigated thoroughly Vu Xuan Truong's cases since 1996 (Balfour 1997; Phuong 1996). Whereas, the laws seek severely to penalize conspirators, ringleaders, commanders, die-hard opposes, wrongdoers, hooligans, dangerous recidivists, those who have abused their positions and powers to commit crimes and those who have committed crimes with treacherous ploys, in an organized and professional manner, with intention to cause serious consequences (Article 3, 1999 CCV). Under the current criminal law of Vietnam, no discrimination between Vietnamese and foreigners exists if they commit a drug-related crime in Vietnam, except for if foreigners are entitled to diplomatic immunity or consular privileges and immunities under Vietnamese laws, international treaties which the Socialist Republic of Vietnam has signed or acceded to or the international practices. If these apply their criminal liability shall be settled through diplomatic channels (Para 2, Article 5, 1999 CCV).

To date, transnational drug crimes with foreign involvement have become more complicated with more complicated modus operandi in recent years in Vietnam (UNODC 2012). In 2007, the police force arrested 184 drug criminals, many of them were foreigners and overseas Vietnamese with most of these offenders coming from Laos, Cambodia, China, Singapore, the United States, Australia, Thailand, and Malaysia (Viet Nam News 2008). Those offenders entered Viet Nam using tourist or family visit visas, and used pre-paid mobile phone cards and the Internet to conduct illegal trading (UNODC 2011; UNODC & SODC 2012). Drug trade hotbeds are the areas long the land border between Viet Nam and China in the north, Laos in the northern central and Cambodia in Southwestern (AIPA 2010, 2011, 2012, 2013) . Airways have also emerged as a popular means for drug trafficking with a variety of tricks to hide the illegal substances, such as putting them in shoe soles, computer screens, toys, foods, or even swallowing them (Khang 2009). In addition, Vietnam's authorities affirmed that a number of drugs trafficking and transport cases had been discovered, where Vietnamese and foreigners collaborated, or foreigners smuggled drugs into Vietnam since over one last decades (UNODC & SODC 2012). Amongst of them, a number of typical cases was committed by West African Drug Syndicate Networks (WADSNs) who organized rings to smuggle drugs into Vietnam and their complicities with various participants involved (MPS 2012). In only 2012, Vietnamese authorities also discovered 21 cases of drug trafficking with 32 offenders related WADSNs those who were arrested at two metropolitan cities, namely Hanoi and Ho Chi Minh City (General Department of Vietnam Police 2013). Therefore, in all these cases, any foreign drug traffickers must be punished as Vietnamese citizens to ensure the fairness principle.

3. Execution Statistics

The death penalty in Vietnam, it is not only legal matter, but also covers political and social attitudes (Johnson & Zimring 2009; Pascoe 2014). It is very hard to obtain valid and reliable data to conduct an accurate assessment of the practical application and executions in Vietnam (Johnson & Zimring 2009). This paper collected data from a variety of sources, including official figures; reporting by other civil society organizations; and media reports. Nonetheless, specific data on the number of executions carried out is difficult to obtain and limited, not least by Decision No.01/2004/QD-TTg of Prime Minister, which made the reporting and dissemination of statistics on the use of capital punishment a state secret in terms of Court's Profile. Accordingly, all Court documents, records, reports, and statistics regarding the death penalty belong to the "highly official secret level" of the People's Court (cited in Article 1, para 1, Decision No.01/2004/QD-TTg by Thu tuong Chinh phu 2004). Therefore, this paper presents a preliminary profile of death penalty practice based on the best available information from three sources, including official figures presented at regional meetings; Annual Reports of Amnesty International and reporting by other civil society organizations; and media reports. Though the validity and reliability of this data is questionable, the data collected from these sources permits a tentative assessment of the practical implementation of capital punishment in Vietnam, noting the challenges of the research.
According Supreme People's Court is statistic in 15 years, from 1993 to 2010 (except for 2003 and 2004 where I do not have statistics), the total number of defendants sentenced to death by the first-instance judgment of the Courts is 2,600 defendants (Toan 2012). Although, this statistic only arises from different sources, it is considered official data of judicial bodies in Vietnam after doi moi. Accordingly, it can be divided into two main terms, from 1993 to 2001 under the 1985 CCV and from 2001 to 2010 under the 1999 CCV.

In the first period, Courts have sentenced 1179 offenders in 8 years, from 1993 to 2000 to death. Numbers of death row defendants tend to increase in this period, more particularly with the most remarkable growth of drug-related crimes occurred since 1997. For example, in Vietnam, drug traffickers' statistics to the period 1996-2001 are illustrated at Figure 1 below. The Courts sentenced 22,058 offenders, involving 288 death penalty, 255 sentences of life imprisonment, 2,292 of between 10 and 20 years in prison and 19,223 of less than 10 years or other kinds of punishment (Rapin 2003, p. 81).