There have been positive developments in the direction of abolition of the death penalty in Asia, although it remains the continent with the highest number of executions in the world. Mongolia abolished the death penalty in its Criminal Code in December 2015. Reductions in the number of crimes punishable by death, including in China in August 2015, and the scope of mandatory death sentences in Singapore in 2012 are also positive signs of progress to be acknowledged. This Plenary session highlighted this progress and how it could be of use to overcome some of the shared challenges facing abolition in retentionist countries in Asia.

Positive developments demonstrate a clear desire in some Asian countries to reassess the death penalty on that continent.

Since the Madrid Congress in 2013, there has been a certain amount of progress in Asia-Oceania, particularly in 2015. The list of abolitionist countries was extended to include Fiji and Mongolia in 2015 and Nauru in 2016. Nepal, which abolished the death penalty in 1997, ensured that there could be no return to capital punishment in its national legislation by adopting a new Constitution in September 2015, prohibiting the adoption of a law providing for the death penalty¹.

“On the day I swore in as the President of Mongolia on June 18, 2009, two draft decrees were table on my desk. One was on the death penalty for a criminal. Other was to pardon him. I decided to choose life. I choose a clean, just and bloodless future for my people.”
Tsakhiagiyn Elbegdorj, President of Mongolia,
video message, 22 June 2016, Oslo Norway

There was also a significant turning point for capital punishment in India after the submission by the Law Commission of India² of its 262nd report entitled The Death Penalty in August 2015. The Commission notes in particular that the goals of the death penalty do not serve either restorative aspects of justice or any of the penological aims recognised by the Constitution. It considers that the death penalty is a means of distracting attention from the real problems connected to the dysfunctioning of the criminal justice system³. In the light of this, the Commission recommends abolition of the death penalty. However, it includes a reservation with regard to cases of terrorism and acts of war against the State⁴. Here, the Commission remains loyal to the reality of the death penalty in India where the last two executions (in 2013 and 2015) involved prisoners sentenced to death for acts of terrorism⁵. However, this situation should be qualified by the fact that this is not a frequently used charge; in 2015 for example, none of the 75 death sentences handed down in India were for terrorism⁶. Nonetheless, and despite this reservation, the Commission dares to go further and declare that it would like to see absolute and irreversible abolition of capital punishment in India⁷, thereby indicating its clear position on the issue.

Nonetheless, although abolition has been recorded or is on the right path in these States, other have adopted dubious measures or extended the scope of application of capital punishment.

Some countries, such as China and Vietnam, still refuse to publish statistics related to the death penalty which are classed as a “State secret”. In Vietnam, legislators adopted a revision of the Criminal Code in November 2015, abolishing the death penalty for seven crimes (reducing the number of capital crimes from 22 to 15)⁸.

These controversial measures in China and Vietnam strongly qualify abolitionist progress in Asia.

As statistics on the death penalty are a State secret, it is difficult to be sure what impact this step will have on the number of sentences. Nonetheless, and although this measure is welcome, some will be quick to criticise the reformulation of certain crimes, particularly those related to the production, sale and possession of drugs. Although these crimes are not included in the revised Criminal Code, they are nonetheless punished under three new articles the illegal production of drugs (Article 248), the illegal transportation of drugs (Article 251) and the illegal sale or purchase of drugs⁹.
China also revised its Criminal Code in 2015¹⁰, thereby withdrawing nine charges from the list of capital crimes, reducing it from 55 to 46 crimes¹¹. Although positive, this progress must be qualified. These charges were rarely used and such a reduction will have little impact in practice in the end, something the official media has actually declared, adding that, nonetheless, this modification is supposedly part of the Government’s policy to “kill fewer people with more restraint”¹². The same is true of the revisions to the Criminal Code: although the defence will enjoy more rights¹³ such as the right for lawyers to talk freely with their clients and participate in the final examination of sentences, China still does not respect international standards in this area. China has not ratified the 1966 International Covenant on Civil and Political Rights¹⁴ and it therefore ignores provisions such as Article 14 on the right to a fair trial before a competent, independent and impartial court¹⁵.
These controversial measures in China and Vietnam strongly qualify abolitionist progress in Asia. Above all, such timid steps bear witness to a strong attachment to application of the death penalty on that continent and the difficulty of breaking away from it. Indeed, some countries, such as Pakistan, have been quick to take a path opposed to abolition, hardening their legislation in terms of application of the death penalty.
The attack by the Taliban on the school in Peshawar in 2014 marked a decisive turning point in application of the death penalty in Pakistan¹⁶. Following that attack, the Government lifted its moratorium on executions dating back to 2008, and in 2015 modified its Constitution and its law on the armed forces authorising application of the death penalty for civilians suspected of offences connected to terrorism. In October 2016, Pakistan had already carried out more than 400 executions since the moratorium was lifted in 2014¹⁷.
Bangladesh has also extended the scope of application of the death penalty to include coastguards in the event of mutinies¹⁸. In Indonesia, executions continue to be carried out, mainly for offences connected to legislation on drugs and particularly drug trafficking. Singapore, which had modified its legislation on the mandatory application of the death penalty in 2012 for drug trafficking, continues to apply it, particularly for cases of voluntary homicide. Malaysia is also highlighted as one of the few countries which continue to apply this punishment in a compulsory manner¹⁹.
What is the goal of States which refuse to consider abolition of the death penalty? Do they think they are responding appropriately to the desire of ill-informed public opinion in search of a particularly dissuasive criminal sentence?
Retentionist States spread the incorrect idea that the death penalty gives the impression of a strong State. Its abolition would therefore be a sign of weakness and insecurity for the public which supposedly sees this punishment as a means of controlling the crime rate²⁰. Consequently, if a State retains capital punishment it is supposedly because a majority of public opinion is in favour of the death penalty, particularly because of its dissuasive aspect. Its abolition would therefore supposedly lead to a loss of confidence among the public²¹.

71% of people surveyed who supported the death penalty declared that they would follow the Government’s lead if the latter decided to abolish capital punishment

In research carried out by the governments of Asian retentionist States, the public mainly answers ‘yes’ to the question ‘do you support the death penalty?’ However, by asking more detailed questions putting the death penalty into the context of the criminal justice machine, it appears that the same public does not have the same opinion; that it has never really considered the issue and that it suffers from a lack of information concerning its own judicial system. This has been demonstrated in several independent studies carried out in Malaysia²², Japan²³ and China²⁴. In Japan for example, although 83% of the 1,542 people surveyed initially declared that they supported the death penalty, only 27% considered it to be inevitable after answering a question relating to the degree of their conviction; 49% of people surveyed did not know about the single execution method and only 0.58% were able to correctly answer all the questions asked, revealing both how confidential information relating to capital punishment is and a lack of interest in the subject²⁵. Such uninformed support for the death penalty is particularly based on the widespread idea that this kind of sentence would have a deterrent effect on people²⁶.
This deterrent effect is often used by governments to justify application of the death penalty with public opinion. However, the death penalty does not serve the penological aim of deterrence any more than life imprisonment²⁷. In research carried out in Malaysia in 2013²⁸, although the death penalty was placed in a context of dissuasive policies, only 12% of the retentionist public surveyed felt that the death penalty fulfilled the criteria of dissuasion, relegating it to last place in five policies which could reduce very violent crime leading to death. The same was true for drug trafficking: with only 15%, the death penalty found itself again in last place. In the same way, in Japan only 27% of the people surveyed believed that the death penalty could reduce the rate of the most terrible crimes²⁹. These low figures demonstrate that, once it has been better informed, the deterrence argument is not the strongest argument with the public. Indeed, seemingly it tends to support the death penalty because of its punitive aspect rather than the dissuasive aspect³⁰.

Finally, retentionist governments put forward the argument that the public would no longer have confidence in the State should it decide to abolish the death penalty. This is the case in Indonesia which likes to politicise use of the death penalty and experiences peaks of executions before every election. However, in research carried out in Japan, 71% of people surveyed who supported the death penalty declared that they would follow the Government’s lead if the latter decided to abolish capital punishment³¹.

With objective information in hand and after proper consideration of the death penalty and its application, the public can form its own opinion and reassess this punishment. Finally, the public is also ready to follow its government’s lead in the event of abolition. This was indeed the case in a number of countries such as France where, upon abolition of the death penalty in 1981, 63% of French people still supported the death penalty.
This demonstrates that the public is therefore not a barrier to abolition of the death penalty - one less argument for retentionist countries in Asia.