Posted 12/07/2019 by Nigel Brew
Reports at the end of June that the President of Sri Lanka had ordered the execution of four prisoners (now stayed by Sri Lanka’s Supreme Court) after a 43-year moratorium on capital punishment have caused alarm. This follows Brunei’s decision in May, after international outrage, to abandon the introduction of death-by-stoning for adultery and sex between men. Malaysia’s new government, on the other hand, announced in late 2018 that it would abolish the death penalty for all crimes, and PNG is currently debating whether to retain capital punishment. While Australia remains abolitionist for all crimes in all circumstances, countries in our region vary in their approach to the death penalty.
Australia strongly opposes capital punishment and passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 to prohibit its reintroduction in any state or territory of Australia. As a party to the International Covenant on Civil and Political Rights and its Second Optional Protocol and under Australia’s Strategy for Abolition of the Death Penalty, Australia formally ‘opposes the death penalty in all circumstances for all people’ and actively advocates for the abolition of the death penalty worldwide, including preventing ‘the reintroduction of the death penalty where it has been abolished’ or ‘the resumption of executions where a moratorium has been in place’.
The Strategy declares that ‘as long as people face execution by a government, we will pursue abolition of the death penalty’. While acknowledging the political sensitivity involved and noting that representations to death penalty countries will mostly be private, the Strategy nevertheless encourages senior officials in Canberra to raise the abolition of capital punishment with ambassadors/high commissioners of retentionist countries, and invites parliamentarians to ‘raise Australia’s opposition to the death penalty in the course of their own international engagement’. It also states that ‘lobbying is particularly important when a country is considering retrograde steps, such as ending a moratorium or expanding the range of offences which attract the death penalty’ and notes that the Indo-Pacific region is the focus of Australia’s diplomatic efforts to abolish it, including ‘countries with whom we have close and friendly relations’.
Outlined below is the status of countries in Australia’s region as at 30 December 2018, derived from the 2019 edition of Amnesty International’s yearly report Death Sentences and Executions.
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Abolitionist for all crimes(a)
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Abolitionist for ordinary crimes only(b)
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Abolitionist in practice(c)
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Retentionist(d)
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Bhutan
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Brunei Darussalam
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Bangladesh
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Cambodia
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Laos
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China
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Cook Islands
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Maldives
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India
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Fiji
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Myanmar
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Indonesia
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Kiribati
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Papua New Guinea
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Japan
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Marshall Islands
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South Korea
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Malaysia
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Micronesia
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Sri Lanka
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North Korea
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Nauru
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Tonga
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Pakistan
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Nepal
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Singapore
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New Zealand
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Taiwan
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Niue
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Thailand
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Palau
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Vietnam
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Philippines
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Samoa
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Solomon Islands
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Timor-Leste
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Tuvalu
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Vanuatu
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‘Laws do not provide for the death penalty for any crime’.
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‘Laws provide for the death penalty only for exceptional crimes, such as crimes under military law or crimes committed in exceptional circumstances.’
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Retain the death penalty for ordinary crimes, such as murder, but have not executed anyone in the last ten years and ‘are believed to have a policy or established practice of not carrying out executions’.
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Retain the death penalty for ordinary crimes.
This means that half of the ten member states of the Association of Southeast Asian Nations (ASEAN) retain the death penalty—a point acknowledged by the Strategy, which states that ‘Australia will continue to engage ASEAN member states, both collectively and individually …’. According to Amnesty International, China and Vietnam were among the top five countries in the world for the number of executions conducted in 2018. On the other hand, all 18 members of the Pacific Islands Forum (PIF), of which Australia is a member, are abolitionist (or in the case of PNG and Tonga, abolitionist in practice).
It was reported in February 2019 that the Sri Lankan Government had advertised for two executioners ahead of a planned resumption of capital punishment for drug trafficking. Reportedly impressed by the Philippines’ ‘war on drugs’ instigated by President Rodrigo Duterte, Sri Lankan President Maithripala Sirisena is said to be hoping to use the death penalty to deal with his country’s drug problem. Although there are a number of crimes in Sri Lanka punishable by death, no one has been executed since 1976. As at December 2018 some 1,300 prisoners were on death row in Sri Lanka. On 5 July 2019 Sri Lanka’s Supreme Court suspended all execution warrants until 29 October, pending the hearing in full of petitions against the death penalty.
The PNG Parliament is again currently debating whether to retain capital punishment in its criminal code, having re-examined the issue a number of times over recent years since amending legislation in 2013 to expand the range of crimes punishable by death and the available methods of execution. The debate arose at the end of June 2019 in response to questions in parliament about the fate of eleven prisoners who have been on death row for over ten years. Parliamentary Hansard covering the debate does not yet appear to be available, but PNG’s Prime Minister, James Marape, is reported to have said that the death penalty acts as a deterrent, that the prisoners in question committed crimes that warrant the death penalty, and that the reason for the long delay in carrying out the sentence was that Parliament had been unable to decide on a method of execution. No one has been executed in PNG since 1954.
Implementation of Malaysia’s policy of abolishing capital punishment is ongoing, with legislative amendments to introduce sentencing discretion for certain offences currently subject to a mandatory death penalty due to be considered in July. As at mid-June, moves to abolish the death penalty for drug offences were on hold pending the outcome of a court case, but work on removing the mandatory death penalty for other offences was continuing. However, a 2018 survey suggested there is popular support in Malaysia for maintaining the death penalty.
While the EU, France and the UK have issued statements condemning Sri Lanka’s decision, and it has been reported that the UN has raised objections with Sri Lanka, there do not appear to have been any public statements by Australian officials on the issue, including in parliament. It is unknown whether the Australian Government or any Australian parliamentarians have made representations privately to the Sri Lankan (or PNG) Government. The Australian Government did, however, openly protest against Brunei’s death-by-stoning punishment and publicly declare its opposition, in addition to making diplomatic representations, which began in 2014 when the introduction of the punishment was first announced by Brunei.