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Thailand Law Journal 2014 Spring Issue 1 Volume 17


As can see that 0.13 per cent of 22,058 drug-related offences were executed. There are three main causes of this phenomenon. Firstly, the law amending and supplementing a number of articles of the Criminal Code in 1997 added 6 articles attracting the death penalty. Secondly, "particularly serious crimes", especially drug-related crimes, increased sharply and therefore, the State needed to apply strict punishment, including the death penalty, deter and curb this situation (Rapin 2003; Vuong et al. 2012). Thirdly, with challenges and complications of drugs' situation in Vietnam at this period, the first professional task force of Ministry of Public Security (MPS) was established to prevent and combat drug operations. Anti-narcotic police forces contributed to investigate and prosecute the bulk of particularly serious drug syndicates at that time (Bung 1997; Yem & Vinh 2002). According to the MPS' annual report, between 1992 and 2000, the annual crime rate averaged 60,000 cases in which there are around 11,000 drug-related crimes; approximately 20 per cent (UNODC 2005). To some extent, therefore, the quantities of death penalty tended to focus on this crime given the policing focus.
Meanwhile, under the 1999 CCV, from 2001 to 2010, all Courts in Vietnam sentenced 1,421 offenders to the death penalty. Of the 29 crimes in the 1999 CCV attracted the death penalty; only 13 crimes have been subject to death penalty sentences.33

Figure 2 shows drug-related crimes have the second highest percentages after murder of death penalty sentences. 569 defendants were sentenced to death, accounting for 40.04 per cent, in comparison with 789 murders or 55.5 per cent of the total on death row over 8 years (2001-2010), respectively. The total defendants facing charges of rape against children (Article 112) has 25 sentenced to death, accounting for 1.76 per cent, and appropriating property through swindling (Article 139) has 16 defendants sentenced to death, accounting for 1.12 per cent. At this stage, although the Vietnam's government recorded marked success in eradicating opium poppy cultivation, from an estimated 18,000 hectares in 1990 reduced to just 32,4 hectares in June 2004 (UNODC 2005), Viet Nam remains an important Southeast Asian transit route for trafficking of illicit drugs primarily heroin, opium, amphetamine-type stimulant (ATS) and cannabis (INCSR 2006, p. 295; 2007, p. 333; 2008, p. 348; 2009; 2010, p. 582) . In fact, with opium cultivation nearly eradicated in Viet Nam, it is estimated that as much as 95% of illicit drugs being transported inside Viet Nam, for either transit or domestic consumption, have been smuggled in from neighboring countries (Hoa, PTN 2008; UNODC 2005).

Practical research on the application of the death penalty shows it has widely fluctuated between 2001 and 2010. According to Toan (2012, p. 25), the death penalty was irregularly applied, but was generally higher than under the 1985 CCV. This can be explained in two ways: First, the 1985 CCV stipulated the death penalty for 44 offences, while the 1999 CCV abolished the death penalty for 15 crimes and therefore only applying it to 29 offences. Secondly, regarding to the nature of crime and its modus operandi, it was committed by "particularly serious crimes" with higher cases and offenders' percentage than under the 1985 CCV. Therefore, though the death penalty in articles under the 1999 CCV reduced, the number of sentences to death was considerably higher than under the 1985 CCV, with 1,421 compared to 1,179 on death row, respectively. For example, in 2010, the drug control task forces of Ministry of Public Security investigated and arrested 16,123 drug crime cases with 23,497 offenders accepted for trial in 11,314 cases with 14,252 defendants (AIPA 2010). Most defendants received between 7 and 20 years imprisonment, 187 defendants got the death penalty, while life imprisonment accounted for around 1.3 per cent of total sentences (AIPA 2010). One of the most obvious points is not practically applied during 1993-2010. Under the 1999 CCV, this includes crimes of infringing upon national security such as high treason (Article 78), carrying out activities aimed at overthrowing the people's administration (Article 79), rebellion (Article 82), conducting banditry activities (Article 83), sabotaging the material-technical foundations of the Socialist Republic of Vietnam (Article 85); hijacking aircrafts, ships (Article 221); crimes of infringing upon the duties and responsibilities of army personnel, such as disobeying orders (Article 316), surrendering to the enemy (Article 322); and crimes of undermining peace, against humanity and war crimes such as undermining peace, provoking aggressive wars (Article 341), crimes against mankind (Article 342), war crimes (Article 343). To date, although the 1999 CCV (amended and supplemented in 2009) allowed the death penalty in twenty-two articles, in fact, the Court's levels have only focused on executing for murder-related crimes34 and drug-related crimes (Thao 2013; Toan 2012). In addition, regarding the form of execution, in the past, Vietnamese executions were carried out by a firing squad of seven policemen, where the prisoners were blindfolded and tied to a stake (Death Penalty Worldwide 2003). The firing squad has been replaced by lethal injection after the Law on Execution of Criminal Judgments was passed by the National Assembly of Vietnam since 17 June 2010 delay due to no drug. In addition, the Government's Decree No.82/2011/ND-CP sets out the general provisions and devices for execution including the injection process; responsibilities of competent agencies for execution of the death penalty; and conditions for assurance of execution of the death penalty and regimes and policies for persons engaged in execution (Dung 2011).35

However, some of barriers and challenges to apply this form of death arose due to a lack of medication  caused a postponement of execution until 6th August 2013 with the first case was executed by lethal injection (Nhung & Linh 2012).

Conclusions

Regarding the future of the death penalty in Asia, Johnson and Zimring (2009) state:
The biggest issues have to do with when rather than whether capital punishment will cease [due to] it is not an issue like air or water pollution in which compliance with international norms carries significant costs for the domestic economy. The pace toward ending the death penalty is slow more because the incentives to cease execution are weak than because the costs of abolition are high. [Thus,] Asia is the next important frontier for policy debate and legal change with respect to capital punishment (pp.xiii, 3).

If Vietnam is to reflect global standards concerning the death penalty, the scope of the laws prescribing the death penalty should be re-examined to reduce its application. To determine whether to maintain or eliminate capital punishment for specific crimes, it is necessary to rely on criteria, such as crime; educational level; economic status; and requirements to prevent and combat crime. For example, economic-related crimes should be commuted from death penalty to life imprisonment as in other countries (Amnesty International 2013; Hodgkinson, Gyllensten & Peel 2010). Moreover, as this paper mentioned suggestion, limiting abolition of the death penalty will continue in Vietnam. Therefore, studying public opinion of all twenty-two articles allowing the death penalty, particularly with drug-related cases is timely. Initially, this national poll should focus on three groups: the powerful bodies of Vietnam, including the Communist Party, National Assembly, the Government, the People's Courts and People's Procuracies; law enforcement agencies, particularly with criminal investigation bodies; and lastly, social opinion through the Vietnam Fatherland Front and its socio-political organizations such as the Trade Union of Vietnam, the Vietnam Peasants' Association, the Ho Chi Minh Communist Youth Union, the Vietnam Women's Union and the Vietnam War Veterans' Association.36 By doing this, the Vietnam's government will have more evidence and data to analyze critically and evaluate thoroughly in terms of death penalty's application and its theory and practice in order to would be abolished it sometime in the future "when the time is right" (Hood 2009).

Acknowledgement

The Author would like to impress my respectful to my PhD's principal supervisor, Ass Prof Paul Battersby, Disciple Head, Global Studies, School for Global, Urban, and Social Science, RMIT University and Prof Pip Nicholson, Director of Asian Law Center, University of Melbourne for their important comments. Also, I thank too much for Thomas Kokkinos-Kennedy, my colleague, for his unlimited contributions to assist me edit this paper.

[1]  [2]  [3]  [4]  [5]  [6]


33. There are includes murder; rape; rape against children; robbery; appropriating property through swindling; embezzlement of property; smuggling; trafficking in counterfeit goods; storing and circulating counterfeit money; storing and circulating counterfeit checks; destroying important national security works and/or facilities; unlawful stockpiling, transporting, trading and/or appropriating narcotics; and organizing the illegal use of narcotics.

34. At Section 1, Article 37, and Section 1, Article 93, the 1999 Criminal Code of Vietnam stipulated to could be executed death with murder in case:
a) Murder of more than one person; 
b) Murder of women who are known by the offender to be pregnant;
c) Murder of children;
d) Murder of persons being on public duties or for reason of the victims' public duties; 
e) Murder of one's grandfather, grandmother, father, mother, fosterer, and/or teachers; 
f) Murder of people just before or after which a serious crime or a particularly serious crime is committed by the offender; 
g) Murder of people in order to carry out or conceal other crimes;
h) Murder of people in order to take organs from the victims' bodies; 
i) Committing crimes in a barbarous manner; 
j) Committing crimes by abusing their profession;
k) Committing crimes by methods, which may cause death to more than one person;
l) Hiring murderers or murdering persons for hiring;
m) Committing crimes in a hooligan manner;
n) Committing crimes in an organized manner;
o) Committing dangerous recidivism;
p) Murder of people for despicable motivation.

35. At Article 8 of Decree No.82/2011/ND-CP regulated specifically injection process for death penalty's prisoners in Vietnam as following:
1. The order of execution must comply with Clauses 2, 3, and 4, Article 59 of the Law on Execution of Criminal Judgments, and this Decree. A condemned person is served a meal, which is 5 times the holiday food portion applicable to persons in custody.
2. The Execution Council checks, breaks the seal and makes a record of the drugs used for execution under regulations.
3. The condemned person is strapped onto the gurney in the supine position, ensuring no hindrance to the circulation of the blood.
4. The executioner carries out the following steps:
a) Preparing 3 doses of drugs (including 2 backup ones);
b) Identifying the vein for injection. In case of failure, reporting such to the Execution Council chairperson for requesting a physician's assistance in identifying the vein;
c) Inserting a needle already connected with an intravenous line into the identified vein and following the following order:
- Step 1: Injecting 5 grams of sodium thiopental. After this injection for anesthesia, the executioner must check if the condemned person is unconscious or not. If not, he/she shall continue the anesthetic injection till the condemned person gets unconscious.
- Step 2: Injecting 100 milligrams of pancuronium bromide.
- Step 3: Injecting 100 grams of potassium chloride.
d) Checking the cardiac rhythm of the condemned person through the cardiogram monitor. If the condemned person is still alive after 10 minutes, the examiner shall report to the Execution Council chairperson for ordering the second injection with the backup dose.
If the condemned person is still alive after the injection of two doses, the execution team head shall report to the Execution Council chairperson for ordering the third injection.
5. The steps specified at Points b, c and d, Clause 4 of this Article may be carried out automatically or by persons.
6. At the order of the Execution Council chairperson, the forensic expert examines and determines the status of the executed person and reports results to the Council.
7. After the forensic expert concludes that the executed person has died, at the order of the Execution Council chairperson, the executioner stops the drip and removes the needle and intravenous line from the body of the executed person.
8. The Execution Council makes a record of the executed person's death under regulations.
9. Settlement of formalities after the executed person's death complies with Points f, g and h, Clause 4, Article 59, and Article 60 of the Law on Execution of Criminal Judgments.

36. All of three groups were stipulated rights and responses at Article 9, 69, 94, 102, and 197 in the new Constitution of Vietnam, known as the 2013 Constitution. Amongst of individual groups should be based on functions, responsibilities, and powerfulness to design a suitable survey's poll about their attitudes on death penalty.

 

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