Slowly moving away from the death penalty

Slowly moving away from the death penalty

A capital punishment advocate holds up a sign while observing a re-enactment of a murder case in Bangkok. (Photo by Pattanapong Hirunard)
A capital punishment advocate holds up a sign while observing a re-enactment of a murder case in Bangkok. (Photo by Pattanapong Hirunard)

One of the interesting developments in Thailand is that official circles are gradually moving away from the death penalty as a sanction against crimes. This is witnessed by the Ministry of Justice's campaign to invite the public to look at options beyond the death penalty. What if there is a large proportion of the population in the country which still favours its retention rather than abolition? There is a need to balance with the international trend and the country's obligations.

Basically, the international position is stipulated by a key human rights treaty to which Thailand is a party: the International Covenant on Civil and Political Rights (ICCPR) (1966). Although this treaty does not prohibit the death penalty absolutely, under its Section 6, it affirms the right to life, with a high threshold if the death penalty is to be legitimate and only where it is imposed by the courts. There is absolute prohibition of the death penalty in regard to children (under 18). The punishment is forbidden in regard to pregnant women. If there is to be the death penalty, it must also only be for the most serious crimes. Extra-judicial killings or killings by officials and other people, as differentiated from the death penalty imposed by a court, are totally illegal.

Complementary to the ICCPR, the international trend is at least to suspend the death penalty with a moratorium and, preferably, to orientate towards its abolition altogether. The said covenant is accompanied by an additional treaty known as the protocol to the ICCPR which enjoins its members to abolish the death penalty without exception; Thailand is not yet a party to this protocol. Globally some 140 countries have abolished the death penalty altogether. In the Asean region, Cambodia and the Philippines have set a key example by abolishing the death penalty.

Over the past seven decades in Thailand, about 320 people have been executed, the most recent being in 2018. The majority have been men and a number of cases have been related to drug trafficking. The Human Rights Committee under the ICCPR has criticised the country for not fully complying with the ICCPR. In particular, it has indicated that drug-related offences are not to be regarded as the most serious crimes which might justify the death penalty. Various human rights bodies have also raised the issue of extra-judicial killings in Thailand.

Some developments in Thailand in the past two decades reveal stepping stones that need further consolidation. About a decade ago, the Thai criminal code was amended to abolish the death penalty for people under 18 years of age. Thailand's criminal code now forbids the death penalty in regard to pregnant women. However, there is a peculiar provision that allows the death penalty to be re-imposed on a woman who has given birth to a child -- where the child dies before reaching the age of three. This anomaly needs reform to delete the condition mentioned. The country has also abolished the death penalty in regard to the offence of corruption by officials in its amended anti-corruption law. A current draft law on drug-related offences will modify the variety of situations giving rise to the death penalty. If the draft is approved by parliament, the death penalty will be limited to two main categories in regard to listed drugs, namely, against those at the top of the drug-trafficking echelons and in regard to national security.

Of course, legal developments alone are not necessarily convincing to a local public who might be seeking retribution for major crimes. A broad public awareness and socialisation campaign is also needed to enable the public to understand the complications surrounding the death penalty which might lead to injustices. There have been miscarriages of justice that have led to the execution of innocent people over the years. It is better to ensure that an innocent person is protected from the death penalty, even if several culpable persons are exempted from such a sanction in the proceedings. Empirical evidence also suggests that the death penalty does not automatically prevent crimes or lead to the reduction of crimes. Moreover, international understanding of crimes has shifted from a retribution-based approach, anchored in revenge, to an approach based on rehabilitation and effective remedy for victims. Commutations to change the sanction from the death penalty to other sanctions should always be a possibility.

In international relations, retention of the death penalty leads to negative implications for the country. The state should not be involved with the deprivation of life; this is regressive role modelling and internationally, it is viewed negatively. Countries which have abolished the death penalty are likely to refuse to extradite criminals from their territory to Thailand if the death penalty remains in place in the country. Moreover, the shift from execution by gunfire to lethal injection in the country has not led to an improved international image. Indeed, countries that produce the chemicals for such lethal injections might sanction the country by refusing their sale and delivery.

What next for Thailand? It should be remembered that today there remain some 60 offences that give rise to the death penalty. About 30 are under the Criminal Code and they range from offences concerning attacks on the monarchy to homicide/murder. About 15 situations fall under military law concerning crimes committed by the military, such as collusion with the enemy.

Another 15 offences fall under various other laws, such as the anti-prostitution law, anti-trafficking law, offences concerning possession of illegal weapons, aircraft hijacking, and drug-related crimes.

While it might be difficult to abolish the death penalty generally and instantaneously, gradual abolition is possible, as seen from the reform of laws on economic crimes such as the anti-corruption law and potentially on drug-related offences.

In the meantime, it is imperative to nurture an understanding of the preferred direction, moving away from the death penalty to more humane options.

Vitit Muntarbhorn is a professor emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN in several positions, including as UN Special Rapporteur, UN Independent Expert and member of UN commissions of inquiry on human rights.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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