Southeast Asia is one of the world’s largest markets for synthetic drugs and capital drugs law is highly practiced by retentionist states in the region. ASEAN largest member states: Indonesia, Singapore, Malaysia and the Philippines, often make international headline for execution against drugs traffickers. In fact, a 2016 report submitted by International Federation of Human Rights pointed out that Asia has the highest number of retentionist states in the world. It is in contrast to European and Central European states that have nullified capital punishment from their laws.
The United Nations Office on Drugs and Crime (UNODC) has been actively calling the UN member states to follow the international standards concerning prohibition of the death penalty for drug-related crimes. Their argument is based on the view that capital drugs laws violates international law . However, the International Covenant on Civil and Political Rights (ICCPR), or any other UN Bill of Rights, does not prohibit the imposition of capital punishment. But the treaty did arrange numerous restrictions on the enforcement.
The ICCPR article 6(2) stated, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.” This underlines that capital punishment should only be applied to the most serious crimes. However, there is no clear definition nor agreement for the term most serious crimes at the international level. With its lack of clarity, the most serious crimes definition can be interpreted differently, thus exposes another non-binding weaknesses of International law.
States retaining capital punishment for drug offenses often times use protecting the nation from the potential effects of drugs as a reason to justify their laws. Many cases found in Indonesia and Singapore pointed out that those who are sentenced to dead are hardly major players in the drug cartel. Most of them were poor and vulnerable people, who accidentally found themselves being set up by trafficking gangs.
Consider the case of Nigerian, Iwuchukwu Amara Tochi, a young man who left his country to pursue a career as a football player. He was stranded without enough money to get to a team try-out in Dubai, when a man that he met while living in Pakistan offered him US$ 200 to deliver a package of medicine to Singapore.
After his arrival at the Changi airport, Tochi got arrested. A summary submitted by the United Nations Special Rapporteur on extrajudicial observes that the trial judge seems to have believed that Tochi could have been unaware that he was carrying heroin, saying that, there was no direct evidence that he knew the capsules contained diamorphine, or that he had found out on his own. But, the judge observation did not save his life apart pleas from UN Human Rights monitors and the Nigerian President, Olesegun Obasanjo. The Singapore government carried out the execution on January 2007, two years after Tochi‘s arrest.
Singapore Law Minister stated, “If he escapes the death penalty, drug barons will think the signal is that young and vulnerable traffickers will be spared and can be used as drug mules.” The Singapore case serves as an evidence that capital punishment within the context of a draconian drugs law would be a pillar of simplification. Capital drugs law based on the generalization that all people are evil while the government kept stating that: ”It is a state’s sovereign right to defend its citizens from lethal threats such as drugs.”
Another thing about criminal justice system is, it is prone to human-made error. Execution sometimes being proceeded purposely for sending a strong message without regard to the human life it costs.
A report by Human Rights Programme of Harm Reduction International in 2007 found there was discrepancy on application of capital drug laws. This puts into attention the discriminatory law enforcement practices and sentence, including failures to honour due process norms and provide access to consular assistance.
In 2010, during the Bali Nine Chan and Sukumaran trial, a human rights scholar Professor William Schabas submitted to the court that drug offenses do not meet the standard of the most serious crimes, hence a violation of international law.
Meanwhile, Indonesia is a signatory of International Covenant on Civil and Political Rights, and should have been obeyed the treaty it made. The court, however, rejected Schabas s appeal.
ASEAN member states view drugs offences as such a profound threat to the society, and thusly have zero-tolerance approach to drugs. But the punitive measures on drugs applied by Southeast Asian states have been proven as not effective in overcoming the problem. Their claims that death penalty deters drugs crimes and prevent re-offences cannot be supported by any recognised studies. A report from International Bar Association states similar findings, of which many countries that adopt a moratorium prior to the final abolition of the death penalty find that the death penalty does not have a deterrent effect in practice
Capital drugs law is nothing but a form of murder, and an arrogant way to justify state’s crime. ASEAN member states with capital drugs law should consider a more humanistic approaches such as public policy reforms to handle their drugs problem.
On the other hand, the lack of clarity and open interpretation of the most serious crimes definition exposed another weaknesses of international law.
Given ASEAN is famous for its pragmatism approaches towards human rights, the organization’s member states would arguably find ways to expose the weaknesses of international law to justify their policies and place their own national interest above humanity.