Capital Punishment On Drug Trafficking Criminology Essay

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With the capital punishment being carried out by China, issues on how it will affect the relations between the Philippines and China emerged. Moreover, there are calls of international organizations such as Amnesty International, International Harm Reduction Association and United Nations Commission on Human Rights (UNCHR) to abolish death penalty for drug offences. As reiterated by Lines (2007), drug related crimes are not considered as "most serious crimes" in the International Human Rights Law, therefore, it should not be punishable by capital punishment.

The study intends to analyze how capital punishment of OFWs affected the bilateral relations between the Philippines and China and how it violates the International Human Rights Law. Moreover, the study is to assess the policies, treaties and agreements made and signed between the Philippines and China in relation to capital punishment on OFWs. In addition, the study aims to examine why clemency was not granted by China to the OFWs on death row despite of the Philippines' appeals and to analyze the effects to the political, economic and social factors between the two countries. Furthermore, the study will contribute to policy developments appropriate for the resolution of the problem. It is significant to engage in this topic for lessening, if not, preventing OFWs from being involved in future drug trafficking cases through the study of Chinese laws governing the execution of capital punishment to foreign drug traffickers.

Theoretical Framework of the Study

The paper attempts to define a deterrence theory of punishment framework by Cesare Beccaria (1764) and revised by Anthony Ellis (2004) for discussing the issue on capital punishment to overseas Filipino workers in China that are involved in drug related crimes in which within this paper, a better understanding will be cultivated in analyzing the existence of capital punishment on drug related crimes. Under this framework, it could be established that there are negative effects in the outlook of other nations towars countries that are still executing capital punishments. This framework would help justify the reasons why such punishments was formed and implemented.

The theory discusses on the different ideas as to why these kind of punishments is being implemented in some states and one of the reasons is that it assumes that those crimes made needs equal sufferings in return and that of which is argued by Ellis that is not morally plausible. Ellis also argued that the deterrence theory is about a concept that crime gives some pleasure and because of that, there is a need for punishment in order to prevent individuals from committing criminal acts again. This theory also justifies the reason of those countries that has capital punishment in a way that criminals should be given heavier punishments like death penalty if the committed crime was grave and detrimental to the state and safety of the public.

The deterrence theory of punishment could be defined in which it is the undertaking of punishments of those people who violated a law so that the crime committed will not be done again. In that context alone, it could be understood that deterrence is created to set limitations for people not to abuse its liberties and that is why countries like China who has capital punishment believes in making things right if it will teach law offenders, such as drug traffickers a lesson and to those who has intentions in doing crimes such as drug trafficking will fear of doing such act due to the punishment being given.

2.0 Review of Literature

The People's Republic of China (PRC) is one of the countries in the world that performed the most executions of capital punishment on drug trafficking cases (Amnesty International Death Penalty Statistics, 2011). This statement is also supported by Hays (2008) by explaining how the PRC has executed many people already compared to other countries altogether. The PRC is categorized as an iron fist country that implements the laws equally towards its people, including foreign nationals (Criminal Law of the People's Republic of China, 1997).

Drug trafficking is considered as a serious crime and is subjected to capital punishment (Guiang, 2012). It is characterized as an act which involves "the cultivation, manufacture, distribution and sale of substances, which are subject to drug prohibition laws" (United Nations Office on Drugs and Crime [UNODC], 2012). According to Bi (2012), there are different factors that need to be considered before the verdict of capital punishment could be decided. The one responsible for the decision and approval of capital punishment cases is given to the Supreme People's Court of the People's Republic of China, which is the highest judicial court in the country (The Supreme People's Court of the People's Republic of China, 2009). It is guided by the Criminal Law of the People's Republic of China (1997), which serves as the basis of crimes and the corresponding penalties, wherein it classifies drug trafficking as a crime deemed punishable by capital punishment. The Chinese Government believes that by executing drug traffickers, it would discourage others from committing the same crime, which they termed as the "Strike Hard" anti-crime campaign (Hays, 2008).

At first, drug trafficking cases are not directly subjected to capital punishment, but due to the uniqueness of the Chinese legislation, the possibility of having a verdict of capital punishment becomes higher (Criminal Law of the People's Republic of China 1997). Bi (2012) reiterated that the Chinese legislation has two specific elements, it uses a quantitative model as a basis on estimating the seriousness of the drug trafficking case, and that if the drug trafficker who is caught is a repeated offender; as a result, there is a great chance for the Supreme People's Court to approve an execution contributed by previous minor cases, since offenses and penalties are being calculated cumulatively. The step-by-step processes that a drug trafficker go through before an execution, is provided under the Criminal Procedure Law (CPL) of the People's Republic of China, which is being handled by the procuratorate, an agency that is tasked to prosecute criminal cases (National Bureau of Corruption Prevention of China, 2009). In accordance with Belkin (2000), there are seven procedures to be observed under the CPL, which are the following: (1) "Preliminary Investigation", under articles 84 and 85, the police and the procurate would take actions on a suspected drug trafficker; (2) "Filing a Case", the police or the procurator would bring up a case against the drug trafficker that would declare that a crime is officially made; (3) "Compelled Appearance", it requires the suspect to present himself to the police station for further questioning; (4) "Detention", the part where the suspect is being arrested; (5)"Formal Arrest", where the suspect is being held under custody which usually takes about two months or more; (6) "Trial Procedures", a process involving three decision makers and the part where the evidences are presented to prove that the suspect is indeed guilty of drug trafficking, and lastly; (7) "Sentencing", it is when the court would announce its verdict. It takes about two years and beyond for the whole process to be concluded and once the verdict has been made, the sentencing of capital punishment is then given; there is only one way of execution for foreign drug traffickers which is through lethal injection (Lu, 2008). Though, it usually results a verdict of capital punishment if the drug trafficker illegally possesses more than one kilogram of narcotic drugs (Hays, 2008).

The Supreme People's Court of the People's Republic of China (2002) has reformed the capital punishment by conceptualizing distinctive features within the system. It stipulates that minors below 18 years old and pregnant women are automatically exempted from being executed (Criminal Law of the People's Republic of China, 1997). Lu (2008) explained that in the Chinese context, minors are exempted because their intellectual, mental and psychological capacity is not yet fully developed; as a result, minors are unaware of their actions.

The capital punishment with a two-year reprieve of execution is one of the unique aspects within the capital punishment system of the People's Republic of China (Criminal Law of the People's Republic of China, 1997). Under Section 5, Article 48 of the Criminal Law of the People's Republic of China (1997), it states that there is a possibility of having a two-year reprieve for capital punishment on cases which needs not be punished immediately. Wang (2011) explained that the rationality behind this is for the "reduction in use of the death penalty", "cautious application of the death penalty", and "tempering justice with mercy". It is because in the past years, the growing number of people sentenced with capital punishment has become alarming, and with this, the Chinese Government hopes that the imposition of the two-year reprieve would bring a decline to the number of cases (The Supreme People's Court of the People's Republic of China, 2002). According to Wang (2011), if the person observes good behavior during the two-year reprieve, there is a chance that his punishment would be reduced into life imprisonment. It also serves as a period where drug traffickers are subjected into forced labor, as a way of reforming them (Belkin 2000).

The bilateral relations of the Philippines and China are weakened with the executions of Overseas Filipino Workers (OFWs) who were convicted of drug trafficking. Since 2011, China executed four OFWs with drug trafficking cases namely: Ramon Credo, Sally Villanueva and Elizabeth Batain in March 2011, and an unnamed 35-year old Filipino in December 2011 (Santos, 2011). It is reiterated by the Presidential Communications Operations Office [PCOO] (2011) that China carried out the execution despite of the Philippines' appeal for clemency to commute capital punishment to life imprisonment.

Clemency cannot be granted to the Filipinos on the death row because of the strict implementation of the Chinese laws. According to Guiang (2012), once a verdict of the Supreme People's Court of the People's Republic of China [SPA] has been made, pleads of the Philippine government will no longer change the decision. Philippine Vice President Jejomar Binay went to China on March 2011 to appeal for clemency to the three OFWs who were on the death row (PCOO, 2011). As stated by PIA (2011), in view with the diplomatic relations with the Philippines and in accordance to the Chinese laws, Chinese officials granted the postponement of the execution of the three OFWs to a month, from February to March. The Philippines appreciated the postponement of the execution and fully respected the final verdict of the SPA (PCOO, 2011).

The execution of capital punishment to the four OFWs did not cause strains to bilateral relations, as reiterated by both countries. This argument is proved by the Official Gazette of the Republic of the Philippines [OGRP] (2011) that the executions of the OFWs produced stronger bilateral relations between China and the Philippines through the Joint Statement of both countries which aimed to promote and strengthen political cooperation between the two countries. In the political aspect, both countries advocated in combating transnational crimes, including drug trafficking, protection of nationals, negotiations for a treaty in relation to mutual legal assistance in criminal matters and transfer of sentenced persons are made, as reiterated by OGRP (2011). Moreover, a memorandum of understanding between the Department of Foreign Affairs (DFA) of the Philippines and the Ministry of Foreign Affairs (MFA) of China is signed to strengthen political cooperation between the two countries to prevent OFWs from being involved in future drug trafficking incidents (OGRP, 2011).

The Capital punishment is considered a violation to the International Human Rights Law. The Capital punishment or popularly known as death penalty in China to drug offenders has been a great concern for the international community because it violates the International Human Rights Law and the most fundamental law which is "the Right to life" (Lines, 2007). There are three major international organizations that protects human rights because of China's procedure on execution and sentencing and making the death rate of executions a state secret and that is why organizations such as Amnesty International, International Harm Reduction Association and the United Nations are fighting to abolish it. According to the International Human Rights Law drug offenses is not applicable to what they refer as crimes that are punished with death it is only those persons that committed the considered "most serious crimes" should be given a punishment of death sentence in Article 6 (2). This law was also given a resolution by the United Nations and that Drug trafficking is not recognized and considered by the International Human Rights Law as one of "most serious crimes" (Gallahue, 2011).

There are major organizations that are taking substantive measures to stop the execution of capital punishment in some countries. The organizations are the United Nations Commission on Human Rights (UNCHR), the International Harm Reduction Association (IHRA) and the Amnesty International (Lines, 2007). According to the International Harm Reduction Association (2007), the Chinese government violates the International Human Rights Law which is proved by Lines (2007) in a way that it doesn't consider drug offences a crime that is punishable with death sentence. In China's legal system, the law on death penalty on drug traffickers is stated in Article 347 of China's Criminal law, they have specific laws on the amount of grams of drugs that was being handled by the foreign national shall subjected to interrogation immediately without having a legal counsel to defend him and only after a certain period of time then he shall have a legal counsel but if the accused foreign national have witnessed that he did carry such drugs then he shall be on trial and sentenced with death penalty (Supreme People's Court of the People's Republic of China, 2002). Although the Chinese government have its system of investigating the prosecution in the trial, still, the foreign national could not defend himself because of the circumstance that the lawyer is not of which of his choice to defend him, that alone is bias, that fact is discriminating and is therefore a violation to the International Human Rights Law (Gallahue, 2011).

The international community, as a whole, does not perceive drug offences as punishable by death sentence. According to Lines (2007) the approach of the countries that follows this practice does give rationale justification that drug offences are indeed punishable by death. It is viewed by China that a drug offences is a grave crime while in the International Human Rights Law, it is only when a crime against the state and a homicide should be considered a crime punishable by death (Bi, 2012). According to the International Harm Reduction Association [IHRC] (2007), there have been disproportionate execution and sentenced foreign nationals when it comes to drug trafficking because of the lack of due process in the procedure of determining if whether or not the assumed criminal is guilty of smuggling drugs or not because of discriminatory laws on drugs with foreign nationals. This is why drug cases in China pertaining to foreign nationals are very alarming to the people who are planning to visit China or work there perhaps (Lines, 2007). A retentionist state like China reasons that they are following this death penalty procedure to safe guard their country from hard drugs and according to the United Nations Working Group on Arbitrary Detention that countries that have death penalty punishment to drug trafficking should be abolished because they failed to give an adequate protection on due process (Gallahue, 2011). In Chinese law procedure, in Article 61, which states that those that will be given a punishment will be based upon the nature of the incident of when he was caught with the drugs and the circumstances of whether how harmed the society, But in drug trafficking they do not follow as such, they just determine a drug trafficker when he is caught with the drugs on his bag but they do not consider the other mitigating circumstances on whether it was planted by someone else and this makes it even contradicting to laws they have on their system (Supreme People's Court of the People's Republic of China, 2002).

The People's Republic of China argues that executing capital punishment on drug offenders a grave offense and therefore is subject to death penalty. In accordance to this, the Human Rights Committee have also made it clear that in Article 14 which states that, "including a right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for defense and the right to review by a higher tribunal and also the right to seek pardon on the sentence (International Harm Reduction Association, 2007). However, in China's legal system in punishing drug offenders, it is not stated there that they have the right to seek pardon and that alone is a violation in the International Human Rights Law. China as a retentionist argues with the fact that although drug related offences are non-violent crimes, it is still a grave crime because it is heinous, grievous and it destroys their traditional values and with these things it results to social harm (Supreme People's Court of the People's Republic of China, 2002).

3.0 Results and Discussion

In 2001, four OFWs were sentenced with capital punishment in the People's Republic of China (PRC) due to drug trafficking. Ramon Credo, Sally Villanueva and Elizabeth Batain were caught smuggling drugs weighing 1 kilogram in March; meanwhile an unnamed 35-year old Filipino in December was caught with 1.5 kilograms of drugs. With the application of the Chinese Criminal Law, these four OFWs were immediately subjected with capital punishment for illegally possessing more than one kilogram of narcotic drugs. Like any other criminal cases within the PRC, there were set of procedures being observed during the whole process of their trial.

The Chinese and the Philippine governments signed a Memorandum of Understanding (MoU) on August 31, 2011 and made a Joint Statement on September 01, 2011 to prevent further future drug trafficking incidents that will involve OFWs (The Philippine Embassy in China, 2012). This is pursuance of the commitment of both countries to combat transnational crimes, which includes drug trafficking.

Table 1 and 2 shows the data on the Philippine imports performance with the People's Republic of China from January to May 2012 and 2011 and the Philippine exports performance of May 2012 and 2011 with the said country.

Table 1. Philippine Imports Performance with People's Republic of China: January to May 2012 and 2011 (in Million U.S. Dollars)

Source: http://www.census.gov.ph/data/sectordata/2012/im120503.htm

Table 2. Philippine Exports Performance with People's Republic of China: May 2012 and 2011

(in Million U.S. Dollars)

Source: http://www.census.gov.ph/data/pressrelease/2012/ex1205tx.html

The figures presented in Tables 1 and 2 show that there is no decline in the imports and exports between the Philippines and the People's Republic of China after the execution of capital punishment for drug trafficking of the three OFWs. Instead, the trade between the two countries strengthened as imports and exports increased.

Table 3 presents the data on the Overseas Filipino Workers' (OFWs) Cash Remittances from the People's Republic of China on January to June 2012 and 2011.

Table 3. Overseas Filipino Workers' Cash Remittances January to June 2012 and 2011 (Landbased and Seabased) (in Thousand U.S. Dollars)

Source: http://www.bsp.gov.ph/statistics/keystat/ofw.htm

The data presented in Table 3 shows that there is no drop in the in the cash remittances sent by OFWs from China to the Philippines despite of the execution of the three OFWs in March. Instead, the cash remittances flow from China to the Philippines grew stronger in January to June 2012.

The Universal Declaration of Human Rights (UDHR) [2012] that promulgated the International Human Rights law have strongly disprove on the capital punishment issues on some countries that are executing individuals that have committed crimes that are not considered as "most serious crimes" (UDHR, 2012). As all other human rights, the right to life is the first and foremost core value of the UDHR and that is what the People's Republic of China violated (Nowak, 2005). It does not only protect individuals against arbitrary interference by Government agents, but also obliges States to take positive measures in order to provide protection from arbitrary killings, enforced disappearances and similar violent acts committed by paramilitary forces, organized crime or any private individual (Nowak, 2005). Under the laws of the UDHR, the countries that have capital punishments should follow fair trial to give the accused person the opportunity to defend himself. States must therefore outlaw such acts as crimes, and must implement appropriate legislation (UDHR, 2012)

According to the Article 5 of UDHR "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The moment that the declare to a person that he/she will be subjected to capital punishment such as death penalty through lethal injection is already a mental torture to a person. It is already causing mental pain for a person to have the agony of waiting for the time he/she will be killed (UDHR, 2012) A punishment such as lethal injection to foreign drug offenders in the People's Republic of China can be considered already as cruel punishment because it is killing of another individual and therefore it is inhume and a degrading punishment. (UNCHR, 2012)

The International Covenant Commission on Civil and Political Rights (CCPR) [2007] is the covenant made by the United Nations Commission on Human Rights with regards to the protection of the individual rights of a person such as the Right to Life. According to Article 7 of CCPR "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." The UDHR and the CCPR clearly has the same position with cruel punishments. The CCPR also is strongly fighting for its abolition. In Article 6 of CCPR, it stated "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant." Prior to this law, there are still retentionist countries that are passive to what these International Laws are advocating (CCPR, 2007).

Moreover, since retentionist countries still do what they have practiced, the international law provides for procedural requirements applicable to all death penalty cases: fair trial guarantees, the possibility of appeal to a higher court, and clemency (Nowak, 2005). According to Article 6 (4) of CCPR, amnesty, pardon or commutation of a death sentence may be granted at all times. Clemency may postpone or set aside a death sentence for instance, by commuting it to life imprisonment and can be used to make up for errors, mitigate a harsh punishment or compensate for any criminal law provisions that may dis- allow consideration of relevant factors. The right of any death convict to seek clemency is clearly affirmed in international human rights law. However, the People's Republic of China rarely grants clemency to drug offenders in their country, they have a strong stand point in their laws on drug related crimes (Nowak, 2005).

According to CCPR, the death penalty should constitute exceptional punishment, always meted out in accordance with the principle of proportionality. Article 6 of CCPR refers to "the most serious crimes" and, under the Safeguards, the definition of the "most serious crimes" punishable by death "should not go beyond intentional crimes, with lethal or other extremely grave consequences". But this is not being applied to the People's Republic of China because they are executing death penalty on foreign drug offenders caught in their state (Nowak, 2005).

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