Thailand Law Journal 2014 Spring Issue 1 Volume 17

The Application of the Death Penalty for Drug-Related Crimes in Vietnam: Law, Policy, and Practice

By Mr. Hai Thanh Luong

Introduction

The death penalty is a major concern for those calling for the abolition. Since established in 1961, Amnesty International has been calling on countries around the world to abolish the death penalty. However, the four most populated countries, China, India, the United States, and Indonesia, have continued to maintain the death penalty as one of the most important tools for prosecutors claiming it is necessary for an effective criminal justice system (Amnesty International 2013; Jiang 2014; Ramirez 2013) . Since the adaption of the "open door" or "renovation" policy (known as doi moi in Vietnam) in the middle of 1980s,¹ and particularly after Vietnam published and issued the 2013 Constitution, increasing attention has been given to capital punishment in Vietnam.

The current paper considers global debates over abolition before describing and explaining the law and practice of the capital punishment in Vietnam within its historical, political, social, and cultural context. Further, the paper focuses on the recent legal development of capital punishment with discussions of the applicable provisions stipulated in the Criminal Code of Vietnam 1999 and its amendment and implementation in 2009 and the Criminal Procedure Code of Vietnam 2003. In short, the basic objective in this paper is to present a preliminary study of Vietnam's capital punishment and its application to drug-related crimes in a comparative context.

In Vietnam, the information and data about the death penalty has been strictly limited and details are not published officially by the media. There is limited domestic scholarship analyzing the Supreme People's Court of Vietnam internal database.  Amnesty International annual reports and local Vietnamese anecdotal information are two sources used here. In principle, data is only published by authorities at official meetings of the ASEAN Inter-Parliamentary Association (AIPA) and ASEAN Senior Officials on Drug Matters (ASOD) with general background and briefly different at data. Therefore, the current analysis will draw there 3 sources, including the National Statistics of the Supreme People's Court in its application of the death penalty in the period of 15 years, from 1993 to 2010 (except for 2003 and 2004 for which there are no statistics);² both of AIPA and ASOD' official reports; and the Amnesty International annual reports covering Vietnam's context.

I. The Death Penalty: A Controversial Debate

1. Argument Against

It is undeniable that controversial issues with the death penalty have been increasingly become as an official issue regards to any human rights' schedules and criminal law reform at the vast of nations (Gallahue et al. 2012; Jiang 2014; Johnson & Zimring 2009; Rahman 2013) . Most countries have banned or in the process of planning to abolish the death penalty in order to ensure "the right to life". Accordingly, many nations have abolished the death penalty. For example, Venezuela was the first country in the world to abolish the death penalty for all crimes, doing so by Constitution in 1863 (Mortensen 2008, p. 7). By the end of 2013, more than two-thirds of the world (140 countries) have now abolished capital punishment in law or practice, including 98 abolitionist for all crimes, 7 abolitionist for ordinary crimes, 35 abolitionist in practice (Amnesty International 2014, p. 52). Apart from these countries, the death penalty is defined in criminal law, but rarely used as a punishment in their judicial system and, it is seen as a special measure only (Hood & Hoyle 2008). For example, considering human life as supreme as one of principal provision of legal standpoint, the Criminal Law of Federal of Russia has only executed this penalty for murder-related offences³ (Bowring 2010, p. 280).

There are a raise of reasons advanced to abolish the death penalty. First, the death penalty is incompatible with human rights and human dignity. The death penalty violates "the right to life" which happens to one of the most basic of all human rights (Amnesty International 2014; Loyal 2013). In addition, it also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment (Jiang 2014; Johnson & Zimring 2009). Further, the death penalty undermines human dignity which is inherent to every human being (Hood & Hoyle 2008; Schabas 2002). Secondly, there is no credible evidence that capital punishment deters crime (Lines 2007; Schabas 2002). Scientific studies have consistently failed to demonstrate that executions deters people from committing crime any more than long prison sentences (Bowers, WJ & Pierce 1980; Ehrlich 1973; Loyal 2013; Phillips 1980; Radelet & Akers 1996; Radelet & Lacock 2009) . There is widespread agreement among both criminologists and law enforcement officials that capital punishment has little curbing effect on homicide rates that is superior to long-term imprisonment (Hughes & Robinson 2013; Ramirez 2013). This attitude was illustrated with 85 per cent out of 70 current and former presidents of three professional associations of criminologists, including the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Law and Society Association those who has shown that the death penalty never has been, is not, and never could be superior to long prison sentences as a deterrent to criminal violence (Radelet & Akers 1996, p. 8; Radelet & Borg 2000, p. 45). Thirdly, the wrongful execution of an innocent person is an injustice that can never be rectified (Jiang 2013; Johnson & Zimring 2009). According to the Death Penalty Information Center,⁴ since the reinstatement of the death penalty, between 1973 and 2014, over 140 people have been released from death row with evidence of their innocence (DPIC 2014). From 1973 to 1999, there was an average of 3 exonerations per year, meanwhile, the period of 2000 and 2011, there was an average of 5 exonerations per year in 32 States of the United States retaining the death penalty (DPIC 2014). Meanwhile, wrongful convictions, in both law and practice have also been exposed in China, although China has not yet established any public or official agency to formally investigate wrongful convictions (Hong 2008, p. i; Trevaskes 2013, p. 484). In addition, neither the authorities nor the public can reasonably estimate how many cases have yet to be discovered (Jiang 2013, p. 145; 2014, p. 147) . Therefore, abolition of the death penalty is also considered as one way to limit wrongful convictions.

2. Characterizing Retentionist States

There are also retentionist countries. Geographically, Asia remains central to the quest to abolish the death penalty worldwide where around 60 per cent of the international population resides in the region and where more than 90 per cent of the world's executions have implemented in recent times (Johnson & Zimring 2009, p. 10). With respect to specific execution rates, at least 1,925 people were known to have been sentenced to death in 57 countries in 2013 however, the number of confirmed executions was 778 in 22 countries, excluding the thousands of executions carried out in China, which accounts for more executions than the rest of the world combined (Amnesty International 2014, pp. 3, 5, 7-8, 10). Apart from China, almost 80% of all known executions were recorded in only three countries, namely Iran, Iraq and Saudi Arabia. Asian jurisdictions cover the  highest  number  of executions (World Coalition against the Death Penalty 2013).

Generally speaking, retentionists approach the death penalty in two main ways: mandatory sentencing and sentencing where there is a judicial discretion. A mandatory sentencing scheme is exists where the imposition of a capital punishment is automatic upon conviction of a crime under legislative regulations (Lehrfreund 2001, p. 171). In other words, either the court or other sentencing authorities retain no discretion to reflect on the facts of the offence and their characteristics to determine penalty. Instead, offenders will be sentenced to death regardless of any mitigating factors that may apply (Harrington 2004; Roberts 2003).⁵ Moreover, this is usually characterized as inconsistent with human rights protections because there is no possibility of taking into account the defendant's personal circumstances or the circumstances of the particular offence. The mandatory death penalty continues to be imposed in Iran, Kenya, Malaysia, Nigeria, Pakistan and Singapore (Amnesty International 2014, pp. 8-9). For example, under Iranian and Kenyan criminal law, the death penalty is mandatory in cases of possession or trafficking of more than a specified amount of various drugs, and those convicted of drug offences are not permitted an opportunity to exercise their right to a review by a higher tribunal, as required by international law (Bharan 2009; Hood & Hoyle 2008; Novak 2011; Schabas 2000) .⁶

With discretionary sentencing although the death penalty is one of the principal penalties in the criminal code, specific circumstances and practical considerations to will be taken into  account to either suspend temporarily, call for a moratorium or limited application of death penalty (Radelet & Borg 2000; Schabas 2002). For instance, although the death penalty for serious crimes, such as acts of terrorism is in the Criminal Law of Cuba, it has seldom been applied since the last known execution was in 2003 (Amnesty International 2014, p. 12; Amnesty International EU Office 2008, p. 3). In addition, commutations or pardons of death sentences have also recorded in 32 countries (Amnesty International 2014).⁷ These approaches to discretionary sentencing maintain the death penalty in theory, but limit it in practice and, on occasion, this is characterized as resulting in de facto abolition.