Thailand Law Journal 2014 Spring Issue 1 Volume 17

2. Basic Principles and its Scopes

According to Article 45 of the 1999 CCV, before and during judgment of any crimes, involving drug-related offences, all courts have to enforce the principal provisions of the Constitution and Criminal Code. In particular, they were to assess the nature and extent of danger posed to society as a result of the crime. This assessment looks at the criminal act; personal circumstances of the offenders; and circumstances, extenuating or aggravating criminal liability (Nicholson & Quan 2007; Nicholson & Truong 2008).15 More generally, three principles apply for drug-related offences under the Vietnamese criminal law's framework, namely rule of law, proportionality, and fairness.

2.1. Rule of Law16
As signatories to the bulk of international treaties and conventions on human rights since the 1990s,17 Vietnam has demonstrated increasing alignment with global and regional attitudes on criminal law. In essence, although there exists a variety of views on "rule of law", to some extent, I will utilize two important areas, international and domestic scale, to compare in the context of Vietnam.

First, international law does not prohibit the death penalty. The right to life is the right of every human being and no one has the right be deprived of it.18 Based on proponents of both the Universal Declaration of Human Rights (HDHR) and the International Covenant on Civil and Political Rights (ICCPR), the death penalty violates human rights and should be eliminated (Schabas 2002). More particularly, the Article 3 of the UDHR stated "everyone has the right to life, liberty, and safety" and furthermore "no one can suffer a cruel punishment or reduce human dignity." (Article 5, UDHR). The right to life is not absolute as other argues that while it protects persons from being killed by the State, the right is not unlimited (Schabas 2002, pp. 43, 7). In particular, with those people commit a "most serious crime", they could be punished by the death penalty (Jiang 2014, p. 57). In actual fact, this is considered a cautious approach with nations not abolishing the death penalty in law and practice (Jiang 2014; Thao 2013; Trevaskes 2013) . According to Jiang (2014, p. 107), the non-reintroduction of principles in Article 6(2) and (6) of the IPCCR is one of limitations of legislative agenda that led to "the vague formulation" to define exactly and clearly what constitutes "most serious crimes" between nations, including drug-related crimes. As a result, a lack of international standards on this item, logically, it led to States are completely free to define and regulate a crime as "serious" or "most serious" (Sapienza 1985, p. 286). Secondly, to understand Vietnam's policies in the application of the death penalty with drug-related crimes, it is necessary to consider rule of law – principle as one essential element in national strategy to prevent, combat, and drug control. In Vietnam, human rights is a fundamental provision stipulated in the Constitution of Vietnam and more importantly, everyone is presumed innocent until the person has been proven guilty.19 Hence, a person will only be treated as guilty of an offence if he or she is convicted and punished (Sidel 2009b). Regarding punishment, careful enquiries must be undertaken as the Court has to base on various relevant factors, which may elaborate schemes and on occasion even complex circumstances (Ramirez 2013). Thus, to some extent, punishment is not only a challenging task but it is also an important responsibility of the Court to ensure human rights, more particularly with the death penalty (Edwards et al. 2009). If a sanction imposed upon convicted persons is unduly light or harsh and there is a wrongful charge, it may lead to the disregard for laws and regulations in that it takes away precious life of innocent offenders after executing (Hood 2009; Kirby & Jacobson 2013; Loyal 2013) . Further such acts not only violate international and domestic standards in terms of human rights, but also create a barrier to rehabilitate the convicted and to combat crime in society as a whole (Amnesty International 2013; Lai 2012; Lines 2007; Rahman 2013) . Additionally, the Article 45 of the 1999 CCV regulates that no individual can suffer criminal punishment except in strict accordance with well-established and clearly defined laws and no person may be prosecuted for an act that is not punishable by law. These rules reflect clearly on punitive principles in Vietnam with any criminal behaviors, no except for the death penalty to drug-related crimes. Under the current criminal law of Vietnam, drug-related offences are classified as "particularly serious crimes".20 Vulnerable groups in Vietnam, such as juveniles and women are excluded from the death penalty (Amnesty International 2013; World Coalition against the Death Penalty 2013). Accordingly, Vietnam's government officially confirmed that the death penalty shall not apply to juvenile offenders, even if they commit illegal narcotics production (Para 4, Article 193, 1999 CCV) or unlawful stockpiling, transporting, trading, in/or appropriating narcotics (Para 4, Article 194, 1999 CCV). It is in contrast with China and the United States where the capital punishment applies to juvenile offenders (Cothern 2000; Jiang 2013) .21 In China, people 16 to 18 years of age found guilty of serious crimes can be subject to death penalty, but execution could be suspended for a period of 2 years (Jiang 2014, p. 90; Lu & Zhang 2005, p. 171). Meanwhile, in the United State with different legislations, in

twenty-two States - more than half of the 38 jurisdictions authorize the death penalty—including on offenders under (Benekos & Merlo 2005; Cothern 2000; Ortiz 2003) .22 Moreover, according to American Bar Association (2000), in 16 of those jurisdictions, offenders must at a minimum be age 18 at the time of the crime to be eligible for that punishment, accounted for 40 per cent; five jurisdictions have a minimum age of 17 and nineteen jurisdiction used to age 16, proportioned by 13 per cent and 47 per cent, respectively (American Bar Association 2000; Streib 2001, pp. 3-4). As of December 31, 2004, 71 persons were on death row for juvenile crimes, accounted for about 2% of the total death row population of 3,487 in the United States (Streib 2004). If lying on this point, at least, the Vietnam expounded its respectfulness for international laws to guarantee the civil, political, economic, social, health, and cultural rights of children.23

Vietnam ratified the United Nations Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in 1982. As evidence of respect for this Convention, in the first Criminal Law, the 1985 CCV did not apply the death penalty to pregnant women. In addition, it also stipulated suspension of the death penalty to women who were raising children under the age of 12 months (Article 27). In 2009, Vietnam retained  constitutional provision not to execute pregnant women, nor a woman nursing a children under 36 months old at the time of committing crimes or trial (Thao 2013; Toan 2012). This compares with other countries that either continue to execute as legal requirement such as at the Federation of Saint Kitts and Nevis24 or delay execution until after delivery of a child, such as Morocco in 40 days, Egypt in 2 months, Bahrain in 3 months, even longer 3 years in Thailand and the Central African Republic (Death Penalty Worldwide 2012). In making this distinction, Vietnam showed a positive trend to protect "vulnerable groups" from the death penalty (Hood 2002, p. 114).

In addition, apart from the pregnant women exemption applying at the time of commission of a crime, these expecting a baby during detention get life imprisonment (Hood & Hoyle 2008, p. 195). It is rare, but this is one of the interesting points in criminal law of Vietnam, particularly with drug-related offences, such as the case of drug female at Ha Nam prison25 and other at Chi Hoa prison26 (BBC News 2006; Lam 2006). In both of these unique cases, sentences were commutated to life imprisonment instead of the death penalty as one the humanity's policies of Vietnam (BBC News 2006; Hood & Hoyle 2008; Ngu 2009) . Furthermore, their babies will be delivered in the prison health center and permited to stay with their mothers until aged three, after breast-feeding has finished and then, mother can decide whether to keep the child with her or have the child looked after outside (Lam 2006). It can be seen clearly that it is not only prove the humanity in criminal legal institution with children and women, but also affirms even while Vietnam maintains the death penalty with drug-related offences, that is not contrary to international law on human rights to those subjects.

[1]  [2]  [3]  [4]  [5]  [6]

15. The extenuating and aggravating circumstances are listed in Article 46 and 48 of the 1999 CCV.

16. As Peerenboom (2002, p. 2) and Collier, Hidalgo and Maciuceanu (2006, p. 211) noted that "rule of law", like other momentous political concepts such as justice, equality, and democracy, is an "essentially contested concept". At the moment, this terminology in Vietnam and other countries in Asian and West region, have been existing to debate on the nature of preconception and its principles in both theoretical and practical application. There are fewer controversies on what constitute the core components of the rule of law that there are on the contents of those components and on how to apply them to structure a government or govern a society. Of course, apart from the compulsory and basic issues of this principle that refers to the influence and authority of law within society, in Vietnam, we support to arguments that these principles of rule of law should be based on the specific circumstance of history, tradition, and culture of individual countries and must be applied it according to the state of our development as well. Therefore, in this paper, it will be determined within the scope of law and punishment in terms of drug-related offenders.

17. In fact, from the 7th Congress of Communist Party of Vietnam, the term "dictatorship of the proletariat" was no longer approached and was substituted by the term "socialist state of the people, by the people, for the people on the basis of the alliance of the class of workers, the class of peasants and the intellectuals" or "the Socialist Rule of Law State" (the 8th Congress, still now); (see also Nghia 2000; Uc 2007)

18. This general provision was stipulated in the Universal Declaration on Human Rights, adopted on 10 December 1948 (Article 3), the American Declaration on the Rights and Duties of Man, adopted on 4 May 1948 (Article 1), and the African Charter of Human and People' s Rights, adopted in 1981.

19. See Constitution of Vietnam 2013, Article 14 and Criminal Procedural Code of Vietnam 2003 (Vietnam), Article 9.

20. At Para 4, Article 193, the 1999 CCV stipulates able to apply the death penalty with offenders, if they produce illegal drugs within one of the following circumstance:
a) Poppy resin, marijuana resin or coca plasma, weighing five kilograms or more;
b) Heroin or cocaine weighing one hundred grams or more;
c) Other narcotic substances in solid form weighing three hundred grams or more;
d) Other narcotic substances in liquid form, measuring seven hundred and fifty milliliters or more;
e) Involving two kinds of narcotics with the total volume being equal to the narcotic volume specified in one of the Points from a to d, Clause 4 of this Article
At Para 4, Article 194, the 1999 CCV stipulates able to apply the death penalty with offenders, if they illegally stockpile, transport, trade, in or appropriate narcotics within one of the following circumstance:
a) Opium resin, marijuana resin or coca plasma weighing five kilograms or more;
b) Heroin or cocaine weighing one hundred grams or more;
c) Marijuana leaves, flower, fruit or coca leaves weighing seventy five kilograms or more;
d) Dried poppy fruit weighing six hundred kilograms or more;
e) Fresh poppy fruit weighing one hundred and fifty kilograms or more;
f) Other narcotic substances in solid form weighing three hundred grams or more;
g) Other narcotic substances in liquid form measuring seven hundred and fifty milliliters or more;
h) Involving two or more narcotic substances with the total volume thereof being equivalent to the narcotic volume specified in one of the Points from a to g, Clause 4 of this Article.

21. According to Center for International Human Rights, University of Northwestern, as of 10 April 2014, China's Criminal Law excludes persons under the age of 18 from the death penalty, and since 1992 China has been a party to the Convention on the Rights of the Child, which prohibits the execution of juveniles. However, at least, Amnesty International recorded two juvenile executions that took place in 2003 and 2004. One is eighteen-year-old prisoner Zhao Lin who was reportedly executed in January 2003 for a murder committed when he was 16 years old. Reports indicate that officials had been unaware of the legal stipulations prohibiting the execution of child offenders; other is Gao Pan in March 2004 who was reportedly executed for murder during an attempted robbery he committed before the age of 18.

22. According to Streib (2001), since 1973, 196 juvenile death sentences have been imposed. This accounts for less than 3 percent of the almost 6,900 total U.S. death sentences. Approximately two-thirds of these have been imposed on 17-year-olds and nearly one-third on 15- and 16-year-olds.

23. Vietnam was one of the first States in Asian to sign and ratify the United Nations Convention on the Rights of the Child (UNCRC), adopted on 20th November 1989 (Burr 2002; Hao 2009). The Government of Vietnam established the Committee for the Protection and Care of Children in 1991, with branches extending to district and commune levels. In the same year, it enacted the Law on the Protection, Care, and Education of Children and adopted a National Programme of Action for the Survival, Protection and Development of Children. It is a source of considerable national pride that, in 1992, Vietnam was the first nation in Asia to report to the Committee on the Rights of the Child, under the obligations of the UNCRC (re-cited by Khanh in Burr, 2002). Vietnam was one of the first States in Asian to sign and ratify the United Nations Convention on the Rights of the Child (UNCRC), adopted on 20th November 1989 (Burr 2002; Hao 2009)

24. It is located in the Leeward Islands and is a federal two-island country in the West Indies. In comparison to other Americans, it is the smallest sovereign state in both area and population.

25. This case refers Nguyen Thi Oanh, a 39-year-old woman sentenced for smuggling one billion dong (62,500 U.S. dollars) worth of heroin from the mountainous border province of Hoa Binh to Hanoi. Five month later her living in prison wait for executing, her lawyer informed the Court that Oanh was pregnant and asked to have her death sentence reconsidered. Doctors confirmed on 25th September 2006 that Oanh, who was being held in solitary confinement, was 11 weeks pregnant. Her lawyer considered the possibility that she was raped when her husband was serving a jail sentence at another prison in another province for heroin smuggling; meanwhile, others suspect a Machiavellian scheme by her to avoid death.

26. This case refers Tran Thi Huong, 32, who Ho Chi Minh City's Court has sentenced the death penalty with unlawful trading nearly 9 kilograms of heroin, with her drug network's different complicities on 22nd January 2007. However, during her pre-detention for trial, she gave birth to a child in jail last June 2006. She told the court her child belonged to "a prison inmate" but that no one had helped the two get together and she had "done it herself" after getting sperms from a prisoner in a cell next to hers. More particularly, she had impregnated herself via self-insemination's method.


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