capital punishment comparing vietnamese and singapore criminal law

Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS Capital Punishment: Comparing Vietnamese and Singapore Criminal Law SUPERVISORS: PROFESSOR NGUYEN NGOC HOA PROFESSOR PER OLE TRASKMAN H ANOI 2009 ACKNOWLEDMENTS I thank my family above all for their love and care; they have all helped me become the person I am today. I thank the Hanoi Law University, the Faculty of Law, University of Lund and the Swedish International Development Cooperation Agancy (Sida) for giving me the opportunity to advance my education. More specifically, I greatly thank all the professors in the Faculty of Law, University of Lund and the Hanoi Law University, who enthusiastically taught me during this course. I especially thank Professor Nguyen Ngoc Hoa and Professor Per Ole Traskman, who were patient in their supervision and supported me as I worked on this thesis. 2 Table of Content Page Acknowledments Table of Contents Executive Summary 2 3 4 1. 1.1 1.2 1.3 1.4 2. 2.1 2.2 2.3 3 3.1 3.2 4. 4.1 4.2 5 Introduction Rational Research purpose and scope Statement of the problem ………………………………. Methodology An overview of capital punishment Capital punishment: some questions of theory The international law on capital punishment Trends of regulations on capital punishment in the criminal law of countries ……………………………………………………………… Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law on the death penalty Comparing general regulations on capital punishment … Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law regarding the death penalty The practice of application the death penalty in Viet Nam and Singapore and recommendations for Viet Nam ……………………. The practice of application the death penalty in Viet Nam and Singapore……………………………………………………………… Some recommendations for Viet Nam Conclusion ……………………………. Table of legal Instruments and Judical Practices …………………… Bibliography …………………………………………………………… 3 5 5 5 6 6 7 7 15 20 25 25 31 40 40 42 44 46 47 Executive Summary The question of the death penalty presents some of the most interesting issues in criminal law. It is important to study such legal questions as whether the use of the death penalty is a violation of international law or not? Or what can we do to ensure Vietnamese Criminal Law is in harmony with the laws of other countries and regions on the death penalty? These questions will be studied in this thesis. I review the theories of capital punishment: key notions, features, and purposes and will identify arguments for and against the death penalty. I analyze international law on the death penalty. This part will show how international law does indeed regulate the death penalty I will consider whether international law prohibits the use of the death penalty or not? I examine trends regarding the regulation of capital punishment in the criminal law of other countries. Is the trend towards abolition becoming international customary law or not? I study conditions on the application of the death penalty and exceptions to its use. Of course, I focus on comparing the regulations of the Vietnamese Criminal Law with the regulations of the Singapore Criminal Law on the death penalty in criminal. The thesis examined the situations of application on the death penalty in Viet Nam and Singapore. Moreover, I also try to identify some problems on the application of the death penalty in Viet Nam. Final, my thesis recommends some proposals for reforming Vietnamese Criminal Law on the death with a view to limiting the use of the death penalty in Vietnam. 4 1. 1.1 Introduction Rationale In Vietnam, maintaining the death penalty is regarded as necessary because the situation in respect of crimes is seen as complicated. Almost all those involved in research into and the practice of criminal law support the maintenance of the death penalty, but also feel it should be limited in its scope and use. In the field of legislation the number of regulations that carry the death penalty has reduced by 33% (from 44 Articles in the Penal Code 1985 to 29 Articles in the Penal Code 1999). The scope of application of the death penalty has been narrowed.1 However, the practical application of the death penalty in Viet Nam and the impact of the process of international integration, have raised issues that may entail a need to reform the criminal law so as to limit use of the death penalty and perhaps abolish it entirely in the future. The death penalty has been used a great deal in Southeast Asia but now many countries, such as the Philippines, Laos, Brunei and Cambodia are abolishing the death penalty. The tendencies to maintain and abolish the death penalty seem to be equally balanced in the region. To find out more about the death penalty in Viet Nam it helps to look at the criminal law of a country that also maintains the death penalty, namely, Singapore. The comparison between Vietnamese and Singapore Criminal Law is especially useful because the cultural and social backgrounds of Vietnam and Singapore are similar. By making the comparison, we can better understand the criminal law of Viet Nam, reform it and make its provisions consistent with international law and laws in other countries in the region and elsewhere in the world. 1. 2 Research Purpose and Scope The purpose of this thesis is to propose some recommendations for Vietnam as it goes about reform ing its crimin al law. It will study the theorie s suppor ting the death penalt y, argum ents for and against it and interna tional law on the death penalt y. The focus is on compa ring the Vietna mese with the Singap ore Crimin al Law and the interna tional law so far as relates to the death penalty. After this comparison and examination of the practice of the death penalty in Vietnam, this thesis will draw some conclusions. For the provisions of the Vietnamese Criminal Law, we study the Vietnamese Penal Code (1999). For the provisions of the Singapore Criminal Law, we study the Penal Code, the Misuse of Drugs Act, the Arm Offences Act, the Internal Security Act, the Kidnapping Act and the Criminal Procedure Code. For international law, we review international laws and regional agreements on the death penalty. Article 35 of the Vietnamese Penal Code 5 1.3 Statement of the Problem The death penalty has been used commonly in most countries but there are now different opinions on this class of punishment. Since the 18th century the there have been two trends, one for and one against capital punishment. The conflict between those trends is severe and is becoming more and more so. The main questions that arise in this conflict, are (1) should we apply the death penalty at all? (2) If so, how should we use the death penalty? In Vietnam, the process of reforming criminal law is to continue. Questions on the death penalty are of interest. It is important to study such questions as whether the use of the death penalty is a violation of international law or not? Or is Vietnamese Criminal Law is harmonious with the laws of other countries and areas on the death penalty? These questions will be studied in this thesis. It is not easy to deal clearly with the questions. Answers depend on many elements: awareness of the role of capital punishment, cultural values, and specific conditions in each country. To deal with these issues, the thesis considers five questions: first, study the death penalty in theory; second, examine international law on the death penalty; then, examine the trends regarding the death penalty; next, compare Vietnamese Criminal Law with the Singapore Criminal Law on capital punishment; and finally, draw conclusions and propose reform to Vietnamese Criminal Law regarding the death penalty. 1 . 4 Methodology The main methodologies used in this thesis are logical analysis and the comparative method. Logical analysis is used to identify the concept of the death penalty and its features and to argue for or against the death penalty. The thesis then analyzes provisions of international laws to find out whether they prohibit the use of the death penalty. For this, the method of interpretation was used to find the true purpose of the legal documents studied. Thi s the sis co nce ntr ate s on the co mp ara tiv e me tho d wh en co mp are the reg ula tio ns of the Vietnam ese Criminal Law and those of the Singapor e Criminal Law, and of internati onal law on the death penalty. The comparis ons focus on the scope of the use of the death penalty, exceptions to the use of the death penalty and capital crimes. The thesis finds differences and similarities between Vietnamese Criminal Law, Singapore Criminal Law and international Law. The thesis tries to explain these differences and similarities. The thesis ends with some conclusions and other remarks. 6 2. 2.1 An Overview of Capital Punishment Capital Punishment: Some Questions of Theory 2.1.1 The Definition of Capital Punishment Capital punishment has existed for many centuries. In ancient times, several Eastern states used capital punishment as can be seen from the Hammurapi Code (Babylon) and the Manu Code (Indian). In the West, it was provided for in the Roman Law of the Twelve Tablets. In medieval times, capital punishment was used commonly in such diverse places as China, Vietnam, the Europena states,2 etc. The death penalty was applied far and wide; it seemed a way to take a just revenge on offenders. In modern times, there has been a major change since the French bourgeois Revolution of 1789. The scope of application of capital punishment was reduced and it was only applied for the most serious crimes. Today, although the worldwide movement towards abolition has proceeded at an increasing pace; it is not only the trend in the world. There are 91 countries which are abolitionists for all crimes, 11 are abolitionists for ordinary crimes, 33 are abolitionist de facto while 62 countries retain the death penalty.3 Although the death penalty has been widely applied, there is no single perspective on the death penalty. According to the US. Supreme Court, it penalizes those convicted of certain classes of crimes by killing them.4 This emphasized the substance of the death penalty: offenders die. The death penalty is a punishment that can take away the life of offenders. Anther view of the death penalty assumes that “the penalty of death for a person convicted of a serious crime, such as intentional murder, is called capital punishment”.5 This concerns both the scope and the consequence of the death penalty it makes clear that there should be some proportionality between offence and penalty. In Vietnam, the Penal Code (1999) does not provide any view regarding t h e d e a t h penalty . It only provide s for its scope and excepti ons to its applicat ion.6 Thus, there are several ways to define the notion of the death penalty . In general , the death penalty means a punish ment that is the strictest punish ment in system of punish ment, provide d in penal code, applied by courts and only for the particular serious crimes to take away the life of E.f., the Hittite Code The Death Penalty Information Centre: http://www.deathpenaltyinfo.org/aritcle.php?scid=30&did=140#de%20facto (accessed 14/7/2008) Answers.com: http://www.answers.com/topic/capital-punishment Answers.com: http://www.answers.com/topic/capital-punishment Article 35 the Penal Code 1999 (VN) 7 [...]... chose second ways that convert the death penalty into life imprisonment Summary of the Vietnamese Criminal Law, the Singapore Criminal Law and International Law on Persons that are not subject to the death penalty The International Vietnamese Singapore Convent on Criminal Criminal the Civil and Law The matters The Law Political Rights I Shall the death penalty apply to: 1 Person under eighteen years... regional custom and only binds the states of Europe This is different from customary international law Id., p 749 24 3 Comparing the Regulations of the Vietnamese Criminal Law with the Regulations of the Singapore Criminal Law on the Death Penalty 3.1 Comparing General Regulations on Capital Punishment 3.1.1 The Scope of Application of the Death Penalty The death penalty is a special punishment, so... Pham Loi, Capital punishment is the strictest punishment in system of punishment, provided in Penal Code, applied by courts and only for the particular serious crimes to take away the life of offenders.”8 This notion of capital punishment is large It include general feature of punishment and particular feature of capital punishment Dr Pham Van Beo assumes that the death penalty is a special punishment, ... 25 Singapore is not a member of the ICCPR, so Singapore is not under any relevant treaty obligation However, the government of Singapore did inform Amnesty International not only did its laws not violate Article 6 (2) of the ICCPR, but positively asserted that Singapore “imposes capital punishment only for the most serious crimes”.64 According to Singapore Criminal Law, there are four groups of capital. .. happen If she was pregnant and to have baby in death row she would be absolved from execution under condition first This case only happen when woman have adopted child But under Vietnamese Law, it is difficult for that woman to have adopted child We can see that the Vietnamese Criminal Law and the Singapore Criminal Law protected the pregnant women better than International Law The Article 6(5) of the... international laws are unity to regulate about capital punishment There are four trends relating to capital punishment: a trend regarding the use of the death penalty, a trend towards its limitation,a trend on safeguarding the rights of capital offenders and a trend in favour of abolition Wikipedia: http://en.wikipedia.org/wiki /Capital_ punishment_ in _Singapore Forer, Loisg (1994), p.118 15 First, international law. .. [Art 3.2 Comparing Particular Regulations of Vietnamese Criminal Law with Particular Regulations of Singapore Criminal Law Regarding the Death Penalty 3.2.1 Crimes of Infringing National Security According to the Vietnamese Criminal Law, actions that infringe upon National Security are acts that infringe upon the regimes of politics, economics, culture, security, the army, foreign affairs and independence,... death penalty are different in each countries Both Vietnam and Singapore do not apply the death penalty with pregnant women But there are difference to consider the time that women were pregnant Morever, there are some cases to absolve women from the death penalty in Vietnam but Singapore The Vietnamese Criminal Law and the Singapore Criminal Law are provied that the condition to absolvo woman from the... behavior in prison inmates and other offenders and this contributes to further violence 2.2 International Law on Capital Punishment The question giving rise to many arguments is whether international law prohibits the use of the death penalty People against the death penalty argue that international law prohibits it People who support the death penalty assume that international law does not prohibit its... Death Penalty When comparing the death penalty with other punishments such as fines, imprisonment, life imprisonment etc, we can easily find differences between them It can be shown that the death penalty is a special punishment but it still has advantages and disadvantages like other punishments First of all, the death penalty is the strictest punishment in the system of punishment Other punishments take . regulations on capital punishment in the criminal law of countries ……………………………………………………………… Comparing regulations of the Vietnamese Criminal Law with regulations of the Singapore Criminal Law on the. use of the death penalty and capital crimes. The thesis finds differences and similarities between Vietnamese Criminal Law, Singapore Criminal Law and international Law. The thesis tries to. international law on the death penalty; then, examine the trends regarding the death penalty; next, compare Vietnamese Criminal Law with the Singapore Criminal Law on capital punishment; and finally,