1.1 Wrestling with the ‘War on Drugs’ in Asia
This book provides an overview of the state of the debate on drug laws in Asia, with a focus on the use of the death penalty to control drug offending.Footnote 1 It documents, analyses, and makes accessible the law and policy related to illicit drugs in various Asian jurisdictions. The areas examined include developments in the law and policy relating to illicit drugs; use of criminal law measures to combat drug-related offences; motivations of drug offenders; public support for punitive punishments; structure of the laws; procedural rights of accused persons; mandatory and discretionary sentencing; and use of the death penalty. The ‘war on drugs’ in Thailand and the Philippines has been described as rife with egregious human rights violations that disproportionately affect the poor and marginalised,Footnote 2 while other countries in the region, such as China, Indonesia, Iran, Malaysia, and Singapore, regularly impose the death penalty for drug trafficking despite international criticism. However, the resistance to change is not as stubborn as before, and there are signs of a shift away from blanket criminalisation at the United Nations (UN) level and in some Asian jurisdictions.
International drug policy is primarily shaped by three treaties: the 1961 UN Single Convention on Narcotic Drugs, the 1971 UN Convention on Psychotropic Substances, and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.Footnote 3 The 1961 UN Single Convention on Narcotic Drugs classified various substances as ‘narcotic’ drugs, ranking them according to the level of harm. Its requirements include drug misuse and trafficking to be managed in each country through national legislation. It not only recommends that serious offences relating to scheduled drugs, which include cannabis, should be punished by imprisonment but also allows those who use drugs to receive treatment and care as an alternative or in addition to punishment.Footnote 4 As new drugs became more prevalent, the 1971 UN Convention on Psychotropic Substances was created, dealing with ‘psychotropic’ drugs.Footnote 5
The 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances further solidified the enforcement-based approach, stating that the possession, purchase, or cultivation for personal use of illicit drugs should be criminal offences encompassed under the criminal legislation of each country.Footnote 6 The 1988 UN Convention also requires countries to confiscate proceeds of drug-related crime, facilitate extradition between countries for drug-related offences, and restrict the manufacture and distribution of precursor chemicals used to produce drugs scheduled under the 1961 and 1971 UN Conventions. In amplifying its requirements, however, the 1988 UN Convention states that countries may differentiate between those drugs that cause more harm from those that cause less harm by providing alternatives to criminal sanctions.Footnote 7 Similar to the 1961 UN Convention, there is considerable flexibility in the requirements of the 1988 UN Convention. It would be within the terms of the Convention to retain criminal sanctions for possession, but not to prosecute or punish the offender. In other words, decriminalisation may be consistent with the Conventions, but legalisation would be a stretch too far. In addition, current practices have been primarily measuring the ‘success’ of law enforcement, such as the number of arrests, the amounts seized, or the harshness of punishments; these measures may tell us how tough we are being, but they do not tell us how successful we are in improving the ‘health and welfare of mankind’.Footnote 8
A criminal justice response to drug problems may appear to be a logical step in controlling supply and demand through the threat of punishment – especially as the various UN Conventions on illicit drugs of the twentieth century, in fact, mainly required signatories to use criminal justice strategies to tackle drug distribution. However, it is now widely accepted among drug policy experts that the global war on illicit drugs has failed,Footnote 9 with devastating consequences adversely affecting vulnerable individuals and societies around the world.Footnote 10 The United Nations Office on Drugs and Crime (UNODC) – the very agency responsible for enforcing global prohibition of illicit drugs – in 2015 acknowledged that international drug policy based on criminal punishment has created ‘a number of unintended negative consequences’, including ‘the creation of a lucrative and violent criminal black market for drugs’.Footnote 11 Criminalisation of drug offences simply leads to geographical and substance displacement, which is one of the reasons why a punitive response to drug problems does not often result in the elimination or the shrinking of the drug market. Drug policy at the international and domestic levels started shifting over the last twenty years, with more and more countries adopting some form of decriminalisation.Footnote 12 Indeed, in 2018, the UN Chief Executives Board for CoordinationFootnote 13 endorsed the following approach:Footnote 14
To promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use, and to promote the principle of proportionality, to address prison overcrowding and overincarceration by people accused of drug crimes …
The recent decriminalisation of cannabis extracts and products with less than 0.2 per cent tetrahydrocannabinol (THC) in Thailand is a clear example of the changing landscape in drug policy.Footnote 15 More than forty countries have legalised cannabis fully or partially for medical and/or recreational use by adults,Footnote 16 showing that a shift away from a drug policy based on global prohibition (at least in ‘soft’ drugs) is happening at the country level.
The United Nations Human Rights Committee regards the application of the death penalty to drug-related offences as contrary to the International Covenant on Civil and Political Rights (ICCPR). While the ICCPR does not prohibit the death penalty, it restricts the death penalty to the ‘most serious crimes’ – understood as ‘intentional killings’ – which excludes drug offences:Footnote 17
The term ‘the most serious crimes’ must be read restrictively and appertain only to crimes of extreme gravity involving intentional killing. Crimes not resulting directly and intentionally in death, such as … drug and sexual offences, although serious in nature, can never serve as the basis, within the framework of article 6, for the imposition of the death penalty.
The ICCPR has near universal adherence, with 173 countries ratifying the treaty, though countries such as China, Malaysia, and Singapore, covered in this book, have yet to ratify it.Footnote 18 Despite developments in the interpretations of the ‘most serious crimes’ under the ICCPR, not all UN agencies have embraced this position consistently. For example, the UNODC has publicly stated its opposition to the death penalty, noting that drug offences do not meet the threshold of the ‘most serious crimes’ and that ‘the use of the death penalty for those convicted solely of drug-related or economic offences raises grave human rights concerns’.Footnote 19 However, UNODC’s annual reports fail to include any data on drug-related executions occurring in many countries.Footnote 20 Indeed, The UNODC Strategy 2021–2025 is silent on the issue of the death penalty, even though it repeatedly stresses UNODC’s mission to contribute to human rights and development.Footnote 21
At the country level, thirty-four countries retain the death penalty for a range of drug offences.Footnote 22 However, there is no clear empirical evidence that the death penalty for drug-related crimes has reduced the volume of drugs available. Despite at least 3,113 executions carried out globally for drug-related offences in the decade between 2014 and 2024,Footnote 23 the drug market continues to expand. An upward trend in the number of executions for drug offences continues globally, from 30 in 2020,Footnote 24 131 in 2021, 324 in 2022, and 467 in 2023.Footnote 25 Drug-related executions comprised an estimated 42 per cent of all confirmed executions in 2023.Footnote 26 Iran carried out at least 459 executions, a 79 per cent increase from 2022 and the highest since 2015.Footnote 27 Iran’s executions accounted for 98 per cent of all the confirmed drug-related executions in 2023.Footnote 28 Singapore, after a two-year unofficial moratorium on executions during the COVID-19 pandemic, carried out eleven executions in 2022 and five more in 2023, including the first woman executed in the country in almost twenty years – all for drug-related offences.Footnote 29 Executions for drug offences are also assumed to have been carried out in China based on unofficial reports and past practice, but no accurate figures can be confirmed due to state secrecy.Footnote 30
Execution is the obvious outcome of the death penalty, but to reduce the death penalty only to the infliction of lethal power by the State does not capture the full extent of the impact of the punishment. The number of countries actively imposing death sentences for drug offences has also steadily increased, from twelve in 2014 to sixteen in 2023.Footnote 31 There were 375 known death sentences for drug offences imposed in 2023, an increase from 312 in 2022 and 240 in 2021.Footnote 32 In 2023, at least 3,039 people were estimated to be on death row for drug offences.Footnote 33 Individuals live, often for years, under the sentence of death – a grim reality for persons in countries that have not carried out executions for over ten years, often referred to as de facto abolitionist States. The living conditions on death row have been found to amount to torture under certain circumstances.Footnote 34 In this book, the chapters by C. Hoyle and P. Jabbar (Chapter 6) and T. Kananatu (Chapter 5) describe the lives of those on death row and their motivations for offending. The ‘war on drugs’ has also been criticised as a ‘war on the poor’, targeting the slums but not the powerful criminal networks.Footnote 35 Instead of disrupting drug cartels, capital drug laws in practice operate to punish ‘drug mules’, who are typically recruited from marginalised groups with intersecting vulnerabilities and are easily replaced.Footnote 36
In addition, although drug policies in these retentionist countries purport to impose harsh penalties only for drug traffickers while rehabilitating drug users, the difference between drug use and trafficking is often blurred. For example, Indonesia has expressed commitment to implement harm reduction approaches,Footnote 37 but ambiguous provisions in its Narcotics Act – which defines drug trafficking to encompass possession and storage of narcotics – have resulted in many drug users being charged for trafficking.Footnote 38 Indonesia has actively imposed death sentences for drug offences in the past years, with 114 confirmed death sentences in 2023.Footnote 39 Vietnam has adopted ‘harm reduction’ interventions since late 2000 and decriminalised drug use in 2009, but the Criminal Code provides a very low threshold (less than 0.1 g) for the amount of heroin, cocaine, or methamphetamine that can be stored or transported without incurring criminal liability.Footnote 40 Transporting 100 g or more of heroin, cocaine, or methamphetamine is punishable by life imprisonment or death.Footnote 41 The threshold for incurring the death penalty for heroin trafficking is even lower in China (50 g),Footnote 42 Malaysia (15 g),Footnote 43 and Singapore (15 g).Footnote 44
Despite the generally punitive drug policies, there have been efforts to reduce the use of the death penalty for drug offences in some parts of Asia. In July 2023, Pakistan removed the death penalty for drug offences under the Control of Narcotic Substances Act, making it ‘the first country to abolish the death penalty for drug offences in over a decade’.Footnote 45 In April 2023, the Malaysian Parliament passed laws removing the mandatory death penalty for twelve offences, including drug trafficking.Footnote 46 However, although the mandatory application was removed, the law retains the death sentence as an option for drug trafficking under the Dangerous Drugs Act 1952.Footnote 47 As demonstrated in the case of Malaysia, political leadership plays a crucial role in moving away from the death penalty. Further, while the battle for the approval of the laws was largely fought in Parliament, the reform came after relentless efforts by activists, lawyers, and civil society organisations as well as transnational and international networks, all of which have actively campaigned against the death penalty in Malaysia for years.Footnote 48 Indonesia, which has long executed those convicted of offences such as drug trafficking, adopted a new Criminal Code in 2023 which no longer lists the death penalty as a ‘principal punishment’, but as a punishment to be applied ‘alternatively, as a last resort’.Footnote 49 The new law also created a ‘probationary period’ of ten years, after which death sentences may be commuted if certain conditions are met.Footnote 50 Thailand’s new Narcotics Code adopted in November 2021, while maintaining the death penalty as a sentencing option for some drug-related offences, directs the court to consider alternatives to incarceration such as rehabilitation at a drug treatment facility. Rather than maintaining a purely punitive approach to drug control, the law marks a shift towards public health initiatives that treat drug users as patients instead of offenders.Footnote 51
In some countries, such as Thailand and the Philippines, punitive and repressive drug policies have led to state-sanctioned extrajudicial killings.Footnote 52 Indeed, nearly fifty years have passed since former US president Richard Nixon declared drug abuse the ‘public enemy number one’.Footnote 53 Despite its failure in the US,Footnote 54 this ‘war on drugs’ is seeing a revival in some parts of Asia.Footnote 55 In the Philippines, where the death penalty has been abolished since 2006,Footnote 56 former President Rodrigo Duterte’s anti-illicit drugs crackdown resulted in the death of 12,000 to 30,000 people from 2016 to 2019.Footnote 57 As of 2024, these deaths are being investigated by the International Criminal Court for crimes against humanity.Footnote 58 In addition to the extrajudicial killings, Duterte’s administration attempted to reintroduce the death penalty as part of its zero-tolerance approach to illicit drugs.Footnote 59 By establishing drugs and people associated with drugs as the enemy, Duterte attempted to legitimise the use of lethal violence to hunt, punish, and, in some cases, eliminate the ‘deviant’.
Despite the country’s failed attempts at reintroducing the death penalty, Duterte’s rhetoric on the ‘war on drugs’ has spread to other parts of Asia. A study found that of the suspected drug dealers killed by the Indonesian police in the first six months of 2017, more than one-third occurred after the suspects had already surrendered to police.Footnote 60 In Sri Lanka, former president Maithripala Sirisena praised Duterte’s war on drugs as an ‘example to the world’ and announced an end to the moratorium on the death penalty that has been in place for over forty years.Footnote 61 Bangladesh also followed and launched its own war against ‘yaba’ (methamphetamine with caffeine). Former Prime Minister Sheikh Hasina stated:Footnote 62
[W]e will rescue the country from the clutches of drugs … the war is on drug[s] now … We have delegated special responsibilities to all the law-enforcing agencies, intelligence agencies and RAB. Wherever there are drugs, tough measures will be taken … we are taking stringent measures.
Finally, in Indonesia, following a series of statements by senior government officials expressing support for Duterte’s drug war, at least forty-nine suspected drug dealers were killed by the police in the first seven months of 2017.Footnote 63
1.2 Structure of the Book
Of the thirty-four states that, as of 2023, retain the death penalty for drug offences, our book covers six of these jurisdictions – China, Indonesia, Iran, Malaysia, Singapore, and ThailandFootnote 64 – plus two that have abolished the death penalty, Hong Kong and the Philippines. This offers a comparative perspective on the implications of the ‘war on drugs’ in the region characterised by disproportionate penalties, denial of legal rights, exploding prison populations, and unquestioning faith in the deterrent effects of the death penalty. Information on some countries, such as China and Iran, are not readily available in English. We hope that this book will enhance the ability of public policy and lawmakers, NGOs, and the general population to engage in the debate on the appropriate approach towards illicit drugs. As can be seen from Table 1.1, there is a wide diversity among the jurisdictions covered.
Table 1.1 Stance on the death penalty in the jurisdictions covered in this book
| Jurisdiction | Death penalty status | Ratified ICCPR | Ratified second optional protocol to ICCPR | UN moratorium on the use of the death penalty (2022)Footnote 65 |
|---|---|---|---|---|
| China | Retentionist | No | No | Against |
| Indonesia | Retentionist | Yes | No | Abstained |
| Iran | Retentionist | Yes | No | Against |
| Malaysia | Retentionist | No | No | For |
| Philippines | Abolitionist | Yes | Yes | For |
| Singapore | Retentionist | No | No | Against |
| Thailand | Retentionist | Yes | No | Abstained |
| Hong Kong | Abolitionist | Yes | No | NA |
This book is structured in four parts. Part I examines three countries that regularly execute individuals convicted of drug offences, namely, China, Iran, and Singapore. Although it is not possible to obtain accurate data on executions in China and Iran, both countries are believed to execute a significant number of drug offenders annually. At least 459 executions for drug offences have been recorded in 2023 alone in Iran.Footnote 66 On the contrary, Singapore is open about its executions, and all five executions in 2023 were for drug offences.Footnote 67
The chapter by X. Li (Chapter 2) examines how the judiciary operates to restrict the use of the death penalty in China. Li notes that although China remains the most frequent user of the death penalty in the world – with drug offences attracting the highest number of executions in provinces such Yunnan and Guangdong – there has been a substantial decline in the number of executions in the past fifteen years. Since 2007, upon acquiring the exclusive power to review and approve death sentences from provincial courts, the Supreme People’s Court implemented proactive measures to restrict the use of the death penalty, including enhancing due process in both pre-trial and trial proceedings. Measures to restrict the use of the death penalty for drug offences include setting out sentencing guidelines with aggravating and mitigating circumstances – encouraging provincial courts to set their own threshold quantity of drugs based on the local drug offending trends – and narrowing the scope of the death penalty to specific types of offenders who should be treated with severity (e.g., professional drug traffickers). Li concludes that the judiciary has succeeded in limiting the application of the death penalty to a very small number of drug offenders and that the overall reduction of the application of the death penalty has been achieved mainly through judicial leadership rather than legislative changes. As Chinese courts are allowed to develop a degree of institutional autonomy and professionalism, the judiciary will have the capacity to deepen the reform of China’s death penalty system and further restrict the use of the death penalty.
In contrast, the chapter by M. Sato and L. Domingo-Cabarrubias (Chapter 3) describes that in the Islamic Republic of Iran, efforts to restrict the application of the death penalty for drug offences came from the legislature, though the long-term impact of the new law remains unclear. The authors examine the 2017 amendment to the capital drug law, noting that although the amendment sought to limit the application of the death penalty to major players in drug syndicates – such as by raising the minimum quantities of illicit drugs which would attract the death penalty – there remain serious issues that may hamper the realisation of the amendment’s objective. The continued use of the mandatory death penalty, for instance, removes judges’ discretion to consider circumstances that may spare those at the bottom of the drug chain from execution. The authors then investigate how judges apply drug laws in capital cases and the extent to which fair trial guarantees are observed. Using ten judgments handed down between 2014 and 2020, they demonstrate that while there have been positive developments in improving fair trial guarantees, certain judicial practices undermine procedural guarantees such as the right to fair and public hearing by a competent, independent, and impartial tribunal, the right to effective legal representation, and the right against self-incrimination.
In Singapore, despite the government’s continued commitment to a ‘zero-tolerance’ approach to illicit drugs, there has been a dramatic reduction in the annual number of executions in recent decades. W. C. Chan and M. Hor, in their chapter (Chapter 4), examine recent social, political, judicial, and regional developments in Singapore’s death penalty landscape and the extent to which these may shape Singapore’s future death penalty policy and practice for drug offences. The authors analyse the rise of a local anti-death penalty movement, which has become increasingly vocal and organised; the greater interest in death penalty issues among the general public; the dramatic rise of death penalty litigation challenging many aspects of the death penalty; the judicial efforts to improve the fairness of death penalty proceedings; shifts in younger Singaporeans’ attitudes towards recreational drug use; and regional moves to restrict, if not abolish, the death penalty. The authors argue that the Singapore government is at a critical juncture, requiring serious re-evaluation of its unrelentingly punitive approach to tackling illicit drugs.
Part II of the book turns to those living under the sentence of death, with an examination of death row prisoners in Malaysia and Indonesia. T. Kananatu’s chapter (Chapter 5) explores the over-representation of Malaysian citizens of Indian descent facing the death penalty for drug trafficking in Malaysia. Marginalisation of the Malaysian Indian ethnic minority first began in the British colonial period and continued during and after independence. They were ignored and neglected by socio-economic policies from 1970 to 2000. On death row, they have been denied fair trial rights in the Malaysian criminal justice system. Due to the double-presumption rule that was in place until 2019 – where one can be presumed to be trafficking by being in control of anything, such as a bag containing certain amounts of illicit drugs – these drug couriers were not presumed innocent until proven guilty but were automatically subjected to the mandatory death penalty. Kananatu’s historical analysis of the treatment of Malaysians of Indian descent puts into context their over-representation on death row, and how they continue to be vulnerable and powerless in the face of harsh drug trafficking laws in Malaysia that developed out of the ‘war on drugs’ in Southeast Asia. The abolition of the mandatory death penalty in Malaysia in 2023 may have the effect of reducing the number of individuals sentenced to death for drug trafficking, including Malaysian Indians.
In Chapter 6, C. Hoyle and P. Jabbar draw on interviews with fifty-seven prisoners convicted of drug offences. As of December 2021, Indonesia has over 400 individuals on death row.Footnote 68 Understanding the motivations and factors that influenced people to be involved in the illicit drugs economy despite the harsh penal climate in Indonesia is crucial. Hoyle and Jabbar show that although financial reward is an important motivation for entry into the drug trade, it is not the only factor that motivates would-be drug offenders, given that most of the interviewees were not in absolute poverty when they decided to offend. Personal and relational motivations, particularly relationships of trust within their peer groups, and the desire to support their dependents – which is not only based on economic motivations but also relational imperatives – are also critical factors that need to be considered for future studies on drug offenders who have not been deterred by harsh punishments.
Part III shifts our attention from individuals facing the death penalty to actors who enforce national drug policies, on the one hand, and to non-state actors who have opposed punitive drug policies, on the other hand. In Chapter 7, D. Pascoe focuses on the role played by national narcotics agencies in Singapore, Thailand, Malaysia, and Indonesia in drug policy and enforcement. Noting that previous studies have neglected the inner workings of national narcotics agencies and their relative position within the state’s policy power structure, Pascoe examines the functions and powers of each agency and their role vis-à-vis politicians and other public bodies in shaping drug policy. He demonstrates that the four agencies are mere ‘cogs in the wheel’ of national drug policymaking, and that, ultimately, the direction of drug policies is determined by political actors. As institutional relics of the ‘war on drugs’ in Southeast Asia, which began in the 1970s, the narcotics agencies and their staff argue for the necessity and the effectiveness of harsh punitive sanctions, including the death penalty for drug trafficking and manufacturing. Pascoe argues that without a mass turnover of staff, it will be difficult to change this aspect of the agencies’ working culture.
The chapter by L. Domingo-Cabarrubias and M. Sato (Chapter 8) analyses how a network of small organisations from various sectors – lawyers’ groups, church-based and civic groups, an independent government entity, academic institutions, and families of prisoners – played a pivotal part in preventing the reintroduction of the death penalty in the Philippines. Using the concept of ‘networked governance’ as a framework and drawing on interviews carried out with those involved in anti-death penalty advocacy on the ground, the authors examine how relatively powerless actors formed into a strong network to counter efforts to reintroduce the death penalty during 2016–2022. The authors note that important lessons can be drawn from the Philippines’ networked governance experience, but caution that any attempt to replicate it should consider the factors that make the Philippine experience unique, such as the long history of anti-death penalty advocacy of many of the organisations involved, and the strong influence of the Catholic Church due to the large percentage of Catholics in the country.
Finally, Part IV of the book comprises two chapters which highlight the malleability of drug policy, using examples from Thailand and Hong Kong. In Chapter 9, R. Bunmee reviews Thailand’s new anti-illicit drugs legislation, promulgated in 2021. He highlights the innovative aspects of the Narcotics Code, which adopts a public health approach to drug control. The law makes crucial amendments to sentencing policy to ensure that the brunt of punitive action is imposed on drug traffickers who profit from the drug trade, while individuals who use drugs are provided with alternatives to incarceration, such as rehabilitation at a drug treatment facility. Bunmee notes that this shift towards a public health approach marks a significant step towards a more compassionate, and hopefully a more effective, solution to Thailand’s drug problem. However, he notes remaining challenges that need to be addressed, including the need to ensure equitable application of penalties, legal professionals’ understanding of the law, and adequate resources for treatment and rehabilitation. Crucially, the Narcotics Code retains the death penalty as a sentencing option for some drug offences, which falls below international standards.
The chapter by K. Joe-Laidler and K. Lowe (Chapter 10) examines the other abolitionist country featured in this book. Unlike many of its neighbours, Hong Kong does not have the death penalty. Yet, the authors find that its legal response is framed within the broader prohibitionist, punitive approach in the region, in which a significant number of countries continue to apply the death penalty for drug offences. The authors examine court judgments to demonstrate that long prison sentences handed down to individuals convicted of drug trafficking are indicative of the desire to protect Hong Kong from being viewed as an easy location for trafficking. At the same time, judges appeared to be keen to impress upon the international community that Hong Kong is aligned with the rest of the region in the fight against the international drug trade. The chapter demonstrates that despite the death penalty being a matter of domestic criminal policy, and despite Hong Kong being an abolitionist country for decades, Hong Kong’s legal response to drug trafficking is consistent with the generally punitive approach within the region, aligning itself with neighbouring countries that impose harsh punitive measures to protect their borders and deter drug trafficking.
