Sunday, 27 May 2007

Indonesian workers face execution in Malaysia

Hundreds of Indonesian workers are facing execution or death sentences in neighbouring Malaysia, but their government's efforts to save them have been hampered by its own stance on drug offences.

Erman Suparno, Manpower and Transportation Minister, said his government had provided legal assistance to 279 workers either on death row or facing possible capital charges, according to a report in The Jakarta Post on 26 May.

He said 95 per cent were convicted, on trial or under police investigation for illegal possession of drugs thought to be from their home villages in Aceh.

But he said there were limits on what Indonesia could do to help.

"The government cannot interfere in the Malaysian judicial system because both countries impose harsh sanctions on such criminal acts," Erman Suparno said.

In recent years Indonesia has handed down increasing numbers of death sentences for drug offences, and President Yudhoyono reportedly said he would not grant clemency in a capital case involving drugs.

Erman Suparno said several Acehnese sentenced to death on drug charged were awaiting execution following rejection of their appeals by Malaysia's High Court.

He said the Indonesian Government had acted to protect the workers' rights, and recruit Malaysian lawyers to represent them during police investigations and in court.

Several Indonesian migrant workers were also on death row in Saudi Arabia in connection with alleged murders at their workplaces.

Tuesday, 15 May 2007

Torment on Taiwan's death row

A suicide attempt by a death row prisoner in Taiwan has revealed the mental anguish suffered by people waiting for the state to take their lives.

Chang Pao-hui (張胞輝) tried to kill himself by swallowing 13 batteries in Hualien Prison in late March, according to a report in The Taipei Times online.

He was rushed to hospital, where doctors operated to remove the batteries from his stomach and intestines.

The Taipei Times said Chang was thought to have been unable to bear the stress of waiting for his execution, which has been delayed for more than 20 months.

It seems his stress was not significantly eased by the fact that Taiwan's Ministry of Justice (MoJ) has been trying to avoid carrying out executions while it moves towards abolishing the death penalty.

A prison official told reporters that Chang seemed emotional recently, and his family rarely visited him.

He was convicted of three murders committed in 2002 and 2003. In June 2005 the Supreme Court upheld his death sentence.

Minister of Justice Morley Shih (施茂林) told a legislative committee hearing two days later: "I felt sorry and sad on hearing about the incident."

But he said "the ministry has not changed its goal of abolishing the death penalty in Taiwan".

In January, the Ministry of Justice announced that during 2007 it would encourage public debate about abolishing the death penalty.

In February 2006, Justice Minister Morley Shih said the government was moving towards abolition of the death penalty.

Death watch on death row
Another death row inmate, Huang Chih-hsien (黃志賢), reportly committed suicide in Hualien Prison in January, by swallowing three batteries.
The prison official said prison officers had taken steps to ensure the seven death row inmates at Hualien did not kill themselves.
The Taipei Times reported there are currently 24 prisoners under sentence of death in Taiwan.

Related stories:
Taiwan limits mandatory penalties -- 29 January, 2007
Abolition debate for Taiwan in 2007 -- 12 January, 2007
Taiwan: Death penalty benefit an 'illusion' -- 14 December, 2006
Taiwan working towards abolition? -- 21 February, 2006

Sunday, 6 May 2007

Drug penalty violates international law

Applying the death penalty for drug-related offences is a breach of international law, according to analysis by a leading human rights adviser to the United Nations.

Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, said where it is used, the death penalty should be restricted to the "most serious crimes".

In a detailed analysis in his latest annual report to the Human Rights Council, he concluded the death penalty "must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life".

The offences considered to be among the "most serious crimes" did not include those relating to drugs.

The death penalty is widely used across Asia for drug offences, including in China, Viet Nam, Indonesia, Malaysia and Singapore, where it is a mandatory sentence for a large number of drug crimes.

The 'most serious' issue
Professor Alston's report said the International Covenant on Civil and Political Rights (ICCPR) first introduced the "basic requirement" restricting the application of the death penalty.

Article 6(1) states that: "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."

This right is elaborated by Article 6(2), which specificies that: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes..."

He said the term was not defined in human rights treaties, but its meaning had been clarified over time through debate, principles of interpretation and the practice of international human rights bodies.

The UN Secretary-General and the Commission on Human Rights have stated and reinforced this principle, and it has also been elaborated through a large number of specific cases decided by the Human Rights Committee.

These developments "have all combined to clarify the meaning and significance of the phrase", which is now taken to refer to crimes where there is a deliberate loss of life.

'Not up to governments'
The report argued that it should be international law, rather than the laws or views of individual governments, which decides the crimes that are "most serious" and therefore liable to the death penalty.

Professor Alston said "a vast array of offences might understandably be classified by any given individual or Government as being among the "most serious"."

He cited work by a previous Special Rapporteur, which found death sentences had been imposed for offences and conduct ranging from corruption, drug possession and blasphemy, to prostitution, 'speculation' and vaguely defined 'crimes against the State'.

While these death sentences may have been considered legal within the country's criminal code and sentencing practices, he said it was not acceptable to leave individual governments to take a "subjective approach" to the issue.

Leaving it to governments to decide the meaning of the term was "not viable".

He said "such an approach would render the relevant international law standard meaningless".

The report found in its summary that, after a wide-ranging survey of legal principles and practice, "if it is to comply with the most serious crimes restriction, the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life".

Wednesday, 2 May 2007

Australians appeal Bali death sentences

Six Australians sentenced to death in Indonesia took two separate appeals to court today in an effort to avoid execution for drug trafficking.

The six men were part of a group of nine Australians - the so-called "Bali Nine" - who were arrested in April 2005 and later charged with trying to smuggle 8.3 kilograms of heroin to Australia.

'Court errors'
Si Yi Chen, 22, Matthew Norman, 20 and Thanh Duc Tan Nguyen, 24, appeared in Bali's Denpasar District Court today with their hands in shackles for the first hearing of their judicial review.

They have asked the Supreme Court to overturn its earlier decision upgrading their sentences to death.

Late last month, their lawyers lodged written submissions arguing the court did not consider the full facts of the cases when it changed their sentences from 20 years to death.

A. R. Henry, a member of their legal team, said: "The court cannot change from 20 years to the death penalty without giving full consideration with what was wrong with the previous court decisions."

It has also been reported they will argue the death penalty violates their right to life, guaranteed under Indonesia's constitution.

Breaching the constitution
In Jakarta, lawyers for the three others sentenced to death took a challenge against the country's death penalty to the constitutional court.

Courier Scott Rush and alleged ringleaders Andrew Chan and Myuran Sukumaran are challenging the constitutional validity of the death penalty for drug offences.

A panel of nine judges convened today to hear arguments that the law under which they were sentenced to death violated their human right to life under the constitution, and Indonesia's obligations under the International Covenant on Civil and Political Rights (ICCPR).

International law experts testified that human rights law restricts the death penalty to "the most serious crimes", which is usually interpreted as excluding drug-related offences.

Jeffrey Fagan from Columbia University told the hearing that Indonesia was in breach of its obligations as a party to the ICCPR.

"There is no social science evidence that shows any deterrent effects of capital punishment on drug trafficking or on any other drug crime," he said.

International legal expert Andrew Byrnes, from the University of New South Wales, told the court that imposing the death penalty for drug offences would violate international law.

"This court is not being asked to break radical new ground in terms of international human rights law," he said.

"Rather, the international law has been set out very clearly."

A team of high profile Indonesian lawyers is representing the three in court, backed by leading Australian human rights lawyers.

On Sunday Lex Lasry QC and Julian McMahon flew to Indonesia to observe the hearings, joining Rush's Australian lawyer Colin McDonald QC.

Lasry and McMahon also represented Australian Van Tuong Nguyen, who was hanged for heroin smuggling in Singapore on 2 December 2005.

Andrew Chan and Myuran Sukumaran were sentenced to death in February 2006 for allegedly organising the failed Bali Nine operation.

Si Yi Chen, Matthew Norman and Thanh Duc Tan Nguyen were sentenced to life imprisonment in February 2006. Their sentences were reduced to 20 years' imprisonment on appeal to the Denpasar District Court.

The Supreme Court later imposed death sentences, despite the prosecutors' request only that the original life sentences be reinstated.

Scott Rush was originally sentenced to life imprisonment. When he appealed the sentence, the Supreme Court imposed a death sentence.

Related stories:
Indonesia's drug penalty 'appropriate' for syndicates -- 29 January 2007
Firing squad for six of Bali nine -- 10 September, 2006
Bali 9 death sentence confirmed -- 26 April, 2006