CONFRONTING CAPITAL PUNISHMENT IN ASIA 000_Hood_FM.indd0_Hood_FM.indd i 110/22/20130/22/2013 44:24:47:24:47 PPMM 000_Hood_FM.indd0_Hood_FM.indd iiii 110/22/20130/22/2013 44:24:48:24:48 PPMM Confronting Capital Punishment in Asia Human Rights, Politics, and Public Opinion Edited by ROGER HOOD Professor Emeritus of Criminology University of Oxford and SURYA DEVA Associate Professor City University of Hong Kong 1 000_Hood_FM.indd0_Hood_FM.indd iiiiii 110/22/20130/22/2013 44:24:48:24:48 PPMM 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Th e several contributors 2013 Th e moral rights of the authors have been asserted First Edition published in 2013 Impression: 1 All rights reserved. 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Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. 000_Hood_FM.indd0_Hood_FM.indd iivv 110/22/20130/22/2013 44:24:48:24:48 PPMM Acknowledgments Th is book is the outcome of a conference entitled ‘Capital Punishment in Asia: Progress and Prospects for Law Reform’ held on 4–5 November 2011 at City University of Hong Kong, under the auspices of its Law School. At that time Roger Hood was visiting Adjunct Professor responsible for teaching a short intensive seminar on ‘Th e Death Penalty in International Perspective’. It was Surya Deva, Associate Professor in the Law School, who suggested that they should join hands to organize such an event and his suggestion received warm support and fi nancial assistance from the Law School as well as City University. Th e conference was organized in collaboration with the Offi ce of the European Union in Hong Kong and Macau, and the Jindal Global Law School, India. Th e conference attracted a signifi cant number of scholars, legal practitioners, and civil society representatives from all over the world. More than 20 papers were presented, which brought together both international and Asian perspectives on the death penalty. Th e editors had a diffi cult, albeit pleasant, dilemma in selecting papers for this volume. At the conference we had some very helpful additional papers relating to India, Japan, Malaysia, South Korea, and Taiwan to provide a wider context, but regrettably there was not space for us to be able to include them here. We are very grateful for the support we received from many people in organ- izing the conference and when editing this book. In particular, we thank the City University Law School for providing the much needed funds that allowed us to invite leading scholars to the conference. We would also like to thank Professor C Raj Kumar, the Vice Chancellor of the OP Jindal Global University, and Maria Castillo Fernandez and Asad Beg from the Offi ce of the European Union to Hong Kong and Macau for showing enthusiasm in co-hosting the conference and mak- ing useful fi nancial contributions. Emily Chow and her team members at the Law School are to be congratulated for their organization skills in ensuring that it was a smooth and pleasant experience. We appreciate the feedback of the anonymous reviewers that helped us in improving the structure and overall coherence of the book and thank Alex Flach and his colleagues at OUP for supporting our endeavours to turn conference papers into a book. All the contributing authors not only showed a tremendous amount of patience during the book proposal review stage but also cooperated with us during the editing process in meeting our revision requests and deadlines. We are most grateful to them. We would also like to thank Prabhjyot Kaur, who provided excellent assistance in checking all the chapters carefully and for under- taking the required stylistic editing. It may not be usual for an editor to thank his co-editor in a book’s acknowledg- ments. In deviating from this tradition, Surya Deva would like to thank Professor Roger Hood for introducing him to this specialized area of research which hinges 000_Hood_FM.indd0_Hood_FM.indd v 110/22/20130/22/2013 44:24:48:24:48 PPMM vi Acknowledgments on the issue of life and death. On a personal level, Surya is grateful to Swati, Vyom, and Varun for off ering continuous support, love, and encouragement during the entire project. Th ey have shown remarkable patience and understanding amidst my daily absence from home for long hours. I am also thankful to my guru, par- ents, and other family members for believing in me and letting me pursue my dreams without any kind of pressure. Roger Hood acknowledges the debt he owes to all those who have encouraged him to continue to work on the issue of capital punishment and particularly to Nancy for stoically putting up with the fi ction of retirement. Roger Hood and Surya Deva Oxford and Hong Kong 30 April 2013 000_Hood_FM.indd0_Hood_FM.indd vvii 110/22/20130/22/2013 44:24:48:24:48 PPMM Contents Contributors xii Introduction 1 Roger Hood and Surya Deva I. SITUATING ASIA IN AN INTERNATIONAL HUMAN RIGHTS CONTEXT 1. State Execution: Is Asia Diff erent and Why? 13 Franklin E Zimring 1. Patterns of Death Penalty Policy in Asia 13 2. Explaining Asian Diff erences 16 Public opinion 19 Single nation parochialism 21 3. Two Modest Proposals 22 2 . Th e Impact and Importance of International Human Rights Standards: Asia in World Perspective 23 Saul Lehrfreund 1. Introduction 23 2. Does International Law Prohibit the Death Penalty? 24 3 . Th e Development of International Norms and the Worldwide Trend Towards Abolition of the Death Penalty—A Dynamic Relationship 25 4 . Th e Applicable International Human Rights Standards 29 Transparency and the need for data 29 Th e scope of the death penalty 30 Minimum fair trial guarantees 32 5 . Th e Impact of International Human Rights Obligations on the Domestic Law—Th e Role of the Judiciary in Harmonizing Standards 37 Th e mandatory death penalty 38 Pardons and petitions of mercy 42 6. Concluding Remarks 45 3. Examining China’s Responses to the Global Campaign Against the Death Penalty 46 Michelle Miao 1. Introduction 46 2. Chinese Discourse and Practices on the Death Penalty: Changes and Resistance 47 An overview of attitudinal, normative, and institutional transformations regarding capital punishment in China 48 000_Hood_FM.indd0_Hood_FM.indd vviiii 110/22/20130/22/2013 44:24:48:24:48 PPMM viii Contents Resistance to justifi cations for, and setbacks to, the capital punishment reforms in China 52 3. Evaluating the Impact of International Pressures on Chinese Capital Punishment Practices: Case Studies and Empirical Evidence 55 Banning the ritual of pre-execution shaming parades 55 Th e failed political intervention to save Akmal Shaikh from execution 59 Varying degrees of distrust among Chinese legal elites towards international human rights forces 64 4. Conclusion 66 4 . Th e Role of National Human Rights Institutions in Abolishing Capital Punishment: A Critical Evaluation 68 YSR Murthy 1. Introduction 68 2. Role, Relevance, and Signifi cance of NHRIs 69 3. Positive Developments 71 4. Areas of Concern and the Scope for Greater Engagement 72 India 72 Maldives 76 Th ailand 79 Afghanistan 80 Bangladesh 83 Indonesia 85 Malaysia 86 Sri Lanka 87 5. Conclusion 88 5 . Th e Role of Abolitionist Nations in Stopping the Use of the Death Penalty in Asia: Th e Case of Australia 90 Sam Garkawe 1. Introduction 90 2. Australia’s Relationship with Asia 92 3. Australian Internal Laws and Policies and its International Stance on the Death Penalty 93 4. Australian Formal Laws and Policies in Relation to Cooperation with Asian Retentionist Nations in Criminal Matters 96 5 . Informal Australian Policies: Australian-Asian Agency to Agency Cooperation when the Asian Agency is Located in a State that Maintains the Death Penalty 99 6. Conclusion 103 000_Hood_FM.indd0_Hood_FM.indd vviiiiii 110/22/20130/22/2013 44:24:48:24:48 PPMM Contents ix II. THE PROGRESS SO FAR 6. Recent Reforms and Prospects in China 107 Liu Renwen 1. Introduction 107 2. Cautious Application of the Death Penalty by the Courts 108 3. Reducing Use of the Death Penalty Th rough Legislation 111 4. Further Reduced Use of the Death Penalty 114 5. Specifi c Systems for Reforming the Death Penalty 115 Prosecutorial supervision in reviewing capital sentences 115 Making the method of execution uniform 116 Separating the decision makers 117 Establishing a special amnesty and clemency system 118 6.