Due process and the death penalty in the Asia-Pacific region.

• Author: Choudhury, Farzana

Abstract

This article examines the application of due process in capital cases in the Asia-Pacific region. In spite of the minimum protections afforded under international law to support due process in capital cases, those standards have been undermined by a number of retentionist countries in the region. Recently, there have been renewed calls for Australia to take a firmer stance against the death penalty in the Asia-Pacific region, particular in neighbouring retentionist countries. Given the continued examples of failure to uphold due process in certain retentionist, Asia-Pacific countries (as evidenced by issues of concern in China, Japan, Singapore and Indonesia explored in this article), it is argued that closer scrutiny of procedural safeguards in capital cases is critical. This article also recommends that lobbying efforts call for enhanced due process in capital cases through regional coalitions, and within countries through internal advocacy efforts.

I Introduction

Due process is critical for proceedings involving capital offences, but a number of countries in the Asia-Pacific region (1) have undermined related international standards. Due process safeguards aim to ensure that legal proceedings involve fair judicial and administrative decision-making procedures. (2) Examples include fair trial rights, the presumption of innocence and the right to trial without undue delay. (3) Particular caution in ensuring due process in capital cases is crucial, given the serious, irreversible consequences of execution. This is reflected in due process standards specific to capital cases under the International Covenant on Civil and Political Rights ('ICCPR'), (4) in addition to general due process protections under the ICCPR, customary international law ('CIL') and domestic laws. Despite these safeguards, concerning examples of inadequate due process in capital cases across the region exist.

This paper examines the application of due process in capital cases in the Asia-Pacific region. First, it will briefly compare the region's general stance on capital punishment as against global trends. While death sentencing rates have declined in several Asia-Pacific countries, the region has the most widespread use of capital punishment. Second, it will describe key relevant international laws, focussing on articles 6 and 14 of the ICCPR which protect the right to life and due process respectively. It will argue that the right to life and fair trial rights reflect CIL, and so all countries are obliged generally to uphold those rights, notwithstanding whether they are parties to the ICCPR.

Third, through case studies on Japan, Indonesia, China and Singapore, it will demonstrate the inadequacy and ineffectiveness of due process safeguards in those countries. In Japan, the lack of capital case-specific due process protections, limitations of lay adjudication, and unclear sentencing guidelines, have increased the risk of arbitrary judicial decision-making. In Indonesia, mishandling of evidence of mental illness in one drug trafficking matter violated the right to life while demonstrating transparency issues. Further, blanket clemency rejections and judicial corruption, both issues evident in drug trafficking cases, have undermined international due process standards for capital cases. In China, poor enforcement of laws introducing adversarial procedures, prohibiting illegally obtained evidence, and enhancing sentence review procedures, have limited their effectiveness. Finally, in Singapore, prosecutorial discretion has resulted in inconsistent treatment of drug-related cases, and restrictions on the right to silence and legal representation are also concerning.

This paper will conclude that lobbying efforts should demand that countries uphold international right to life and fair trial standards, as these are fundamental rules of CIL. This could occur through regional coalitions and grassroots advocacy within retentionist countries.

II Capital Punishment in the Region

1. Progress towards abolition

   Considerable global backing for abolition exists, (5) with over two-thirds of countries having abolished capital punishment in law or practice. (6) Within the Asia-Pacific region, Fiji and Kiribati voted for the first time in support of the 2014 UN General Assembly moratorium, (7) and Fiji proceeded to abolish capital punishment in 2015. (8) Additionally, in Mongolia, a new Criminal Code will abolish the death penalty from September 2016. (9) Clearly, some Asia-Pacific countries have followed global abolitionist trends.

   However, many more Asia-Pacific countries have retained capital punishment. (10) The region has made the least progress with abolition, (11) with less than half of Asia-Pacific countries having abolished capital punishment in law or practice. (12) Several countries in the region oppose a death penalty moratorium, (13) including Bangladesh, China, India, Indonesia, Japan, Malaysia, North Korea, Pakistan and Singapore. (14) Notably, Papua New Guinea voted against the 2014 moratorium after previously abstaining, (15) and expanded the application of capital punishment in 2013 to include robbery, sorcery-related murder and aggravated rape, among other offences. (16) Accordingly, the region's overall position on capital punishment is inconsistent with international abolitionist trends.

2. Death sentences and executions

   Overall, the number of death sentences in the region has decreased, which Amnesty International indicates may be due partly to fewer death sentences in Bangladesh following the 152 mass death sentences for mutiny issued in 2013. (17) It is estimated that over 15 000 death sentences were issued in China from 2010-13. (18) Although in 2014 the number of executing countries decreased to 9 (one less than in 2013), (19) execution rates vary considerably across the region. While execution rates have increased over the last decade in Japan, (20) in Singapore they have reduced significantly, (21) with only one execution in 2015. (22) In 2014, no executions in Pacific countries were reported. (23) Capital punishment in Indonesia has been sporadic, (24) with fluctuating annual execution rates. (25) China maintains high execution rates, with thousands of executions estimated (26) to occur annually. (27) Notwithstanding these variances, death sentencing and execution rates in the Asia-Pacific region exceed those in all other regions. (28)

   Ill Right to Life And Due Process under International Law

   ICCPR States are obligated to protect the right to life and uphold procedural safeguards. Globally, 168 out of 197 countries have ratified the ICCPR. (29) Out of the 25 Asia-Pacific UN Member States, 19 have ratified or acceded to the ICCPR, (30) indicating that most have agreed to be bound by it. China has signed but not ratified the ICCPR, and Bhutan, Brunei, Malaysia, Myanmar and Singapore have neither signed nor acceded to the ICCPR. (31) Although this paper focuses on articles 6 and 14 of the ICCPR, the right to life and fair trial rights represent CIL. This means that all countries are obliged to uphold the rights enshrined in article 6, and article 14 (at least insofar as it deals with fair trials), irrespective of their ICCPR party status.

1. Right to life (article 6)

   Article 6(1) of the ICCPR specifies, 'Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life'. In turn, arbitrary deprivation of life by the State or its agents is prohibited. (32) In General Comment 6, the UN Human Rights Committee ('HRC') describes article 6 as 'the supreme right' (33) obliging States to adopt measures conducive to enabling people to live. (34) The prohibition on 'arbitrary' deprivation includes any inappropriate, unjust and unpredictable deprivation. (35) Article 6 reserves capital punishment for 'most serious crimes', provided that due process has been followed, a pardon or commutation of sentence has not been granted, and the accused is not exempt from capital punishment.

   1. Permissibility for 'most serious crimes'

      Under article 6(2), capital punishment can only be imposed 'for the most serious crimes in accordance with the law in force at the time of the commission of the crime'. General Comment 6 interprets 'most serious crimes' restrictively, to mean that capital punishment 'should be a quite exceptional measure' and not contrary to the ICCPR, (36) and should be abolished for crimes that are not 'most serious'. (37) In Lubuto v Zambia, the HRC held that crimes that could wound or result in death, or create a grave danger resulting in death or irreparable harm to many unspecified persons, were 'most serious'. (38) Further, the HRC has expressed concern about capital offences without 'fatal or similarly grave consequences, such as robbery with violence or attempted robbery with violence'. (39) Moreover, the HRC considers that drug-related offences, (40) non-violent offences, (41) political and economic offences, (42) and crimes not resulting in death, (43) are not 'most serious'. The UN Economic and Social Council's Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty ('ESCR Safeguards') indicate that 'most serious crimes' means 'intentional crimes with lethal or extremely grave consequences'. (44) Accordingly, 'most serious crimes' are limited to those involving intentional grievous bodily harm, and intentional or attempted killings, (45) and a higher degree of moral culpability is necessary to impose capital punishment.

      Some countries have interpreted 'most serious crimes' more widely. In Japan, capital punishment is typically only imposed for murder, robbery-murder and rape-murder convictions, but certain non-violent offences, such as assisting the enemy, are also capital offences. (46) The UN Secretary-General has acknowledged that the term's definition 'may vary in different social, cultural, religious and...