Breaking the rule of law

Why capital punishment is not a solution for drug crime

Ningthoujam Singh, Sarthak Roy

Law, Social policy | Asia, Southeast Asia

27 October 2016

Philippines’ President Rodrigo Duterte’s ‘war on drugs’ is not the answer to drug-related crime, Ningthoujam Koiremba Singh and Sarthak Roy write.

The term ‘rule of law’ has enchanted governments for centuries and is coming even further to the fore now at the apex of the global push for good governance. The rule of law is at the intersection of development, human rights, peace and security; an overwhelming narrative which has the legitimising effect of both being the means and the end of good governance.

The ‘war on drugs’ campaign in the Philippines being undertaken at the behest of President Rodrigo Duterte, together with his clarion call for the imposition of the death penalty for drug-related crimes, are nothing but unfettered abuses of the rule of law and executive overreach.

Under international human rights law, as prescribed by the International Covenant on Civil and Political Rights, the use of capital punishment is not absolutely prohibited. It’s legal application, however, is restricted significantly. It states that the death penalty may only be legally applied for what the treaty terms the ‘most serious crimes’. In other words, for only the rarest of rare crimes, the threshold for which is set at ‘lethal or other extremely grave consequences’, a definition subsequently endorsed by the UN General Assembly. United Nations political bodies further endorsed the ‘most serious crimes’ threshold in a 1984 resolution of the Economic and Social Committee, which upheld nine safeguards on the application of the death penalty.

Duterte justifies harsh sentences for drugs as a necessary deterrent for social risks linked to drug use – such as addiction, overdose and blood-borne infections usually associated with drugs like heroin, cocaine and amphetamine-type stimulants. Yet the reality is more nuanced. Many of the people sentenced to die are not traders in so-called ‘hard’ drugs. Instead, they are subject to the death penalty for trafficking in the ‘softer’ marijuana or hashish.

More on this: Behind Jokowi and Duterte’s “war on drugs”

Making the death penalty mandatory for drug-related crimes has always faced criticism for being ‘over-inclusive’ and an ‘unavoidable violation of human rights law’.

There are those who argue that human rights norms, such as the abolition of the death penalty for drug offences, are the product of Western thinking and are therefore culturally and politically inappropriate for non-Western governments. However, the suggestion of some sort of universal concept of ‘Asian values’ in this regard is undermined by the wide and divergent approaches Asian nations take to the death penalty. The active and ongoing campaigns to end the death penalty for drugs, being driven by human rights activists across Asia – particularly in Malaysia, Thailand and Singapore – further puts paid to this idea.

By 1986, 46 countries had abolished the death penalty for ordinary crimes. Sixteen years later, that number of countries had almost doubled to 89. Moreover, another 22 countries have stopped using the death penalty in practice, bringing the total of non-death penalty countries to 111, far outnumbering the 84 countries which continue to impose it.

These statistics point to the incontrovertible fact that the death penalty is on the wane worldwide. Justice cannot be accomplished without an orderly system of judicial administration to ensure the equal treatment of equal situations. Thus the maintenance of order is to some extent conditioned by the existence of a reasonably sound system of law, while justice needs the helping hand of order to perform some of its essential functions. St. Augustine said ‘an unjust law is no law at all’. The required synthesis of these two values may be summed up in the statement that law aims at the creation of a just societal order, which is the call of the hour in the Philippines.

More on this: Will Duterte’s strongman style help or harm the Philippines?

Capital punishment does not offer an exclusive solution to illicit drug trafficking and abuse in the Philippines. Rather, we have to understand the actual problem and its status in both social and economic terms. The Philippines is geographically associated within the golden triangle and is considered one of Asia’s most important illicit drug trafficking transit routes due to the porousness of its borders. The problem of illicit drug trafficking and abuse in Asia is transnational and multidimensional in nature, and present trends in crime, terror, and corruption create a nexus across East and Southeast Asia. Many of the organised crime, terrorist and secessionist outfits in Asia are using illicit drug trafficking as a source of income. At the same time, countries in this region are economically backward.

Poverty is a chronic problem. The UN Development Program’s 2015 Philippines Multidimensional Poverty Index estimates that 6.3 per cent of the population are multi-dimensionally poor, while an additional 8.4 per cent live near multidimensional poverty. The share of the population that is multi-dimensionally poor, adjusted by the intensity of the deprivations, is 0.033. In Thailand and Indonesia this is 0.004 and 0.024 respectively.

Deprived and poverty-stricken populations in these regions are soft targets for organised crime and nonstate actors. They are the populations who can most easily become a medium for illicit drug transportation across the region and who are highly vulnerable to being punished by the death penalty.

The problem of drug abuse, as well as trafficking, is not as simple as it may look and the death penalty as a recourse is a state-centric approach that is fast becoming outdated in the ever-changing contemporary international legal system as well as illegal in a growing number of countries.

The death penalty is not an answer to drug-related crime as the case of Indonesia clearly demonstrates. Despite retaining the death penalty, Indonesia is still one of the leading transit routes for illicit drug trafficking in Asia.

Instead of waging an extrajudicial ‘war on drugs’, the Philippines’ government must look to the rule of law as the bedrock for development, human rights, peace and security, rather than imposing a harsh archaic rule on the population at large. The government should look forward and pursue regional cooperation and coordination as the solution to illicit drug trafficking.

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Singh, Ningthoujam and Sarthak Roy. 2016. "Breaking The Rule Of Law - Policy Forum". Policy Forum. http://www.policyforum.net/breaking-rule-law/.

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