Asian Law Centre
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ItemClemency in Southeast Asian Death Penalty Cases(Asian Law Centre, University of Melbourne, 2014)The five contemporary practitioners of the death penalty in Southeast Asia (Indonesia, Malaysia, Thailand, Singapore and Vietnam) have performed judicial executions on a regular basis between 1975 and 2013. Notwithstanding this similarity, the number of death sentences passed by courts that were subsequently reduced to a term of imprisonment through grants of clemency by the executive has varied remarkably between these jurisdictions. Some of these countries commuted the sentences of death row prisoners often (for example, the clemency ‘rate’ of 91-92 per cent witnessed in Thailand), others rarely (a clemency ‘rate’ of around 1 per cent in Singapore), and some at ‘medium’ rates. In this article, I employ the methodology of comparative criminal justice to explore the discrepancies and similarities in capital clemency practice between these five Southeast Asian jurisdictions. In doing so, I seek to identify the structural and cultural reasons why retentionist countries exercise clemency at vastly different ‘rates’ in finalised capital cases.
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ItemDrug-related Crimes Under Vietnamese Criminal Law: Sentencing and Clemency in Law and Practice(Asian Law Centre, University of Melbourne, 2014)Although drug abuse has a long history, Vietnam has recently escalated its fight against drug-related crimes. This paper first discusses the elements of drug-related crimes under the Criminal Code of Vietnam 1999 (as amended in 2009) and calls for a series of reforms. It then analyses sentencing under the Vietnamese criminal law in general, with particular focus on drug-related crimes and the granting of clemency.
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ItemDeath Penalty and the Road Ahead: A Case Study of Indonesia(Asian Law Centre, University of Melbourne, 2015)Indonesia has been criticised nationally and internationally for its use of the death penalty. Critics argue the death penalty does not deter crime and there has never been any solid empirical evidence suggesting it can. They say the objective of punishment should be to re-educate and rehabilitate people, giving them the opportunity to reintegrate with society, not to kill them. Globally only a small number of states still execute. Indonesia does give weight to these objections but domestic support for the death penalty still seems overwhelming. Few governments anywhere are willing to abolish the death penalty if they have to pay a high political cost and the government of President Joko Widodo is no exception. Some sort of compromise or alternative has to be found. One solution would be to formulate a policy respecting human rights (especially the right to life) but still allowing executions in exceptional circumstances. The Indonesian government seems to be trying to do this in its new draft Criminal Code. This says that if a death row convict demonstrates rehabilitation, his or her sentence can be reduced to either life or 20 years in prison. If this had been the law earlier this year, it could have saved the two Australians recently executed, Myuran Sukumaran and Andrew Chan. Debate on the Draft of Criminal Code is a perfect opportunity for both proponents and opponents of the death penalty. There is, however, a new momentum towards abolition in Indonesia, and this paper argues that it should be used to the maximum possible extent to prevent more executions, and outlines a strategy for how this might be done.
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ItemIslam, Democracy and the Future of the Death Penalty(Asian Law Centre, University of Melbourne, 2015)This paper explores Islamic attitudes to the death penalty and argues that all contemporary cultures – whatever their origin and whatever their religious context – face challenges in reconciling the death penalty with the right to life. The experiences of the United States (the world’s largest Christian society), India (the largest Hindu society), and Indonesia (the largest Muslim society) suggest, however, that religion is not always an obstacle to democracy or human rights reform, even if all these countries still execute. The paper raises the questions of whether Islam requires the death penalty for certain crimes; whether executions are a breach of human rights; and whether religion is an obstacle to human rights reform. The paper concludes that increasing acceptance of democracy and international human rights norms as a global civilisational aspiration is forcing reconsideration of the death penalty in many societies - including in Muslim majority states like Indonesia.
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ItemThe Functions of Death Penalty Clemency in Southeast Asia: Comparative Lessons for Vietnam(Asian Law Centre, University of Melbourne, 2017)Despite being the final procedural barrier separating life and death in capital cases, executive clemency has traditionally not received the attention it deserves from comparative law and comparative criminal justice scholars, including those writing about Southeast Asia. This article aims to build upon previous empirical scholarship on death penalty clemency in Southeast Asia in two ways: by focusing on the ‘who’ question in clemency awards in the region rather than on ‘how many’ prisoners benefit, and also by updating previous findings in light of any new clemency data available since 2013. After relaying the contemporary and possible future clemency practice of each ‘actively retentionist’ Southeast Asian nation, this article concludes by reflecting on what this regional use of clemency might mean for Vietnam’s future clemency policy in death penalty cases.
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ItemUnderstanding the Death Penalty in India: The Challenges and Potential of Empirical Research(Asian Law Centre, University of Melbourne, 2017)The Death Penalty India Report (2016) was an attempt to address the lack of empirical information on the administration of the death penalty in India. The dismal state of affairs in this regard is demonstrated by the fact that there exist no reliable figures for the number of executions India has carried out since independence in August 1947. Further, when the Death Penalty Research Project was conceptualised in May 2013 there was no certainty about the total number of prisoners on death row in India either. While there is extensive work on the analysis of Supreme Court judgements on the death penalty, there is an acute absence of research on other facets of the administration of the death penalty. The two specific aims of the Death Penalty Research Project were to document the socio-economic profile of death row prisoners in India and secondly, to map the interaction of death row prisoners with different aspects of India’s criminal justice system. These aims were achieved by interviewing all prisoners on death row across India along with tracking down and interviewing their families (in some cases, the prisoners had no families or the families had abandoned the prisoner). Of the 385 prisoners under the sentence of death in India during the project, we had access to 373 prisoners.
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ItemJudicial Discretion and Death Penalty Reform in China: Drug Transportation and Homicide as Exemplars of Two Reform Paths(Asian Law Centre, University of Melbourne, 2017)This paper focuses on Chinese death penalty reform in relation to two common crimes for which the punishment of death is commonly applied in China: drug transportation and homicide. It looks at how the Supreme People’s Court (SPC) has led the way in reforming death sentencing in these areas by encouraging lower courts to use a ‘suspended’ death sentence rather than an ‘immediate execution’. SPC guidance mechanisms including guiding cases and sentencing guidelines are the conduit through which reform has been achieved. These mechanisms help to corral local discretionary powers to encourage judges to recognize case circumstances that attract mitigated punishment. These mechanisms therefore allow local judges to treat many homicide and drug transportation cases as intrinsically less socially harmful than other cases, while at the same time, preserving the status of homicide and drug transportation as capital offences.
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ItemDoes the Death Penalty Deter Homicide in Japan?(Asian Law Centre, University of Melbourne, 2017)Unlike the United States, where death penalty and deterrence studies are legion, there has been little research about the death penalty and deterrence in Japan, though the paucity of studies has not discouraged citizens and officials from making confident claims about this issue. Indeed, deterrence has been called “the core of argumentation for and against” the death penalty in Japan. Serious research on this subject has been all but impossible because of difficulties obtaining decent crime data from the Japanese government. This paper uses monthly homicide and robbery-homicide statistics that were previously unavailable to examine whether death sentences and executions in Japan deterred these crimes from 1990 to 2010. The main finding is that the death penalty did not deter homicide or robbery-homicide during this period. More research is needed on this subject, but at present the Japanese government has no sound basis for continuing to claim that the country needs to retain the death penalty because it deters heinous crime.
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ItemA Brief Introduction to the Indian Judicial System and Court Hierarchy(University of Melbourne, 2019)This paper provides an introduction to the Indian judicial system and court hierarchy, outlining the jurisdiction of constitutional and statutory courts and tribunals and the appointment, tenure and removal of judges. It describes forms of alternative dispute resolution that have emerged in recent decades, partly to combat delays in the court system, and informal dispute resolution bodies that mediate family disputes, such as Sharia courts. The paper concludes by discussing the contentious issues of delay in the court system, public interest litigation, and appointments to the Supreme and High Courts of India.
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ItemLegal Services under the China-Australia Free Trade Agreement: Surveying the Landscape(Asian Law Centre, University of Melbourne, 2015)The developments concerning the China-Australia Free Trade Agreement (ChAFTA) have generated a high-level of interest, both in Australia and abroad. This paper considers the benefits of ChAFTA in terms of facilitating trade in legal services and examines the claims and expectations in this regard. The paper concludes by suggesting that the benefits of ChAFTA in relation to legal services are qualified and need to be viewed in the context of other significant developments.