With the capital penalty being carried out by China, issues on how it will impact the dealingss between the Philippines and China emerged. Furthermore, there are calls of international organisations such as Amnesty International, International Harm Reduction Association and United Nations Commission on Human Rights ( UNCHR ) to get rid of decease punishment for drug offenses. As reiterated by Lines ( 2007 ) , drug related offenses are non considered as “ most serious offenses ” in the International Human Rights Law, hence, it should non be punishable by capital penalty.
The survey intends to analyse how capital penalty of OFWs affected the bilateral dealingss between the Philippines and China and how it violates the International Human Rights Law. Furthermore, the survey is to measure the policies, pacts and understandings made and signed between the Philippines and China in relation to capital penalty on OFWs. In add-on, the survey aims to analyze why mildness was non granted by China to the OFWs on decease row despite of the Philippines ‘ entreaties and to analyse the effects to the political, economic and societal factors between the two states. Furthermore, the survey will lend to policy developments appropriate for the declaration of the job. It is important to prosecute in this subject for decrease, if non, forestalling OFWs from being involved in future drug trafficking instances through the survey of Chinese Torahs regulating the executing of capital penalty to foreign drug sellers.
Theoretical Framework of the Study
The paper attempts to specify a disincentive theory of penalty model by Cesare Beccaria ( 1764 ) and revised by Anthony Ellis ( 2004 ) for discoursing the issue on capital penalty to abroad Filipino workers in China that are involved in drug related offenses in which within this paper, a better apprehension will be cultivated in analysing the being of capital penalty on drug related offenses. Under this model, it could be established that there are negative effects in the mentality of other states towars states that are still put to deathing capital penalties. This model would assist warrant the grounds why such penalties was formed and implemented.
The theory discusses on the different thoughts as to why these sort of penalties is being implemented in some provinces and one of the grounds is that it assumes that those offenses made demands equal agonies in return and that of which is argued by Ellis that is non morally plausible. Ellis besides argued that the disincentive theory is about a construct that offense gives some pleasance and because of that, there is a demand for penalty in order to forestall persons from perpetrating condemnable Acts of the Apostless once more. This theory besides justifies the ground of those states that has capital penalty in a manner that felons should be given heavier penalties like decease punishment if the committed offense was sedate and damaging to the province and safety of the populace.
The disincentive theory of penalty could be defined in which it is the project of penalties of those people who violated a jurisprudence so that the offense committed will non be done once more. In that context entirely, it could be understood that disincentive is created to put restrictions for people non to mistreat its autonomies and that is why states like China who has capital penalty believes in doing things right if it will learn jurisprudence wrongdoers, such as drug sellers a lesson and to those who has purposes in making offenses such as drug trafficking will fear of making such act due to the penalty being given.
2.0 Review of Literature
The People ‘s Republic of China ( PRC ) is one of the states in the universe that performed the most executings of capital penalty on drug trafficking instances ( Amnesty International Death Penalty Statistics, 2011 ) . This statement is besides supported by Hays ( 2008 ) by explicating how the PRC has executed many people already compared to other states wholly. The PRC is categorized as an Fe fist state that implements the Torahs every bit towards its people, including foreign subjects ( Criminal Law of the People ‘s Republic of China, 1997 ) .
Drug trafficking is considered as a serious offense and is subjected to capital penalty ( Guiang, 2012 ) . It is characterized as an act which involves “ the cultivation, industry, distribution and sale of substances, which are capable to drug prohibition Torahs ” ( United Nations Office on Drugs and Crime [ UNODC ] , 2012 ) . Harmonizing to Bi ( 2012 ) , there are different factors that need to be considered before the finding of fact of capital penalty could be decided. The one responsible for the determination and blessing of capital penalty instances is given to the Supreme People ‘s Court of the People ‘s Republic of China, which is the highest judicial tribunal in the state ( The Supreme People ‘s Court of the People ‘s Republic of China, 2009 ) . It is guided by the Criminal Law of the People ‘s Republic of China ( 1997 ) , which serves as the footing of offenses and the corresponding punishments, wherein it classifies drug trafficking as a offense deemed punishable by capital penalty. The Chinese Government believes that by put to deathing drug sellers, it would deter others from perpetrating the same offense, which they termed as the “ Strike Hard ” anti-crime run ( Hays, 2008 ) .
At first, drug trafficking instances are non straight subjected to capital penalty, but due to the singularity of the Chinese statute law, the possibility of holding a finding of fact of capital penalty becomes higher ( Condemnable Law of the People ‘s Republic of China 1997 ) . Bi ( 2012 ) reiterated that the Chinese statute law has two specific elements, it uses a quantitative theoretical account as a footing on gauging the earnestness of the drug trafficking instance, and that if the drug seller who is caught is a perennial wrongdoer ; as a consequence, there is a great opportunity for the Supreme People ‘s Court to O.K. an executing contributed by old minor instances, since discourtesies and punishments are being calculated cumulatively. The bit-by-bit procedures that a drug seller go through before an executing, is provided under the Criminal Procedure Law ( CPL ) of the People ‘s Republic of China, which is being handled by the procuratorate, an bureau that is tasked to prosecute condemnable instances ( National Bureau of Corruption Prevention of China, 2009 ) . In conformity with Belkin ( 2000 ) , there are seven processs to be observed under the CPL, which are the undermentioned: ( 1 ) “ Preliminary Probe ” , under articles 84 and 85, the constabulary and the procurate would take actions on a suspected drug seller ; ( 2 ) “ Filing a Case ” , the constabulary or the proxy would convey up a instance against the drug seller that would declare that a offense is officially made ; ( 3 ) “ Compelled Appearance ” , it requires the suspect to show himself to the constabulary station for farther inquiring ; ( 4 ) “ Detention ” , the portion where the suspect is being arrested ; ( 5 ) ” Formal Arrest ” , where the suspect is being held under detention which normally takes about two months or more ; ( 6 ) “ Trial Procedures ” , a procedure affecting three determination shapers and the portion where the groundss are presented to turn out that the suspect is so guilty of drug trafficking, and in conclusion ; ( 7 ) “ Sentencing ” , it is when the tribunal would denote its finding of fact. It takes about two old ages and beyond for the whole procedure to be concluded and one time the finding of fact has been made, the sentencing of capital penalty is so given ; there is merely one manner of executing for foreign drug sellers which is through deadly injection ( Lu, 2008 ) . Though, it normally consequences a finding of fact of capital penalty if the drug seller illicitly possesses more than one kg of narcotic drugs ( Hays, 2008 ) .
The Supreme People ‘s Court of the People ‘s Republic of China ( 2002 ) has reformed the capital penalty by gestating typical characteristics within the system. It stipulates that bush leagues below 18 old ages old and pregnant adult females are automatically exempted from being executed ( Condemnable Law of the People ‘s Republic of China, 1997 ) . Lu ( 2008 ) explained that in the Chinese context, bush leagues are exempted because their rational, mental and psychological capacity is non yet to the full developed ; as a consequence, bush leagues are incognizant of their actions.
The capital penalty with a biennial respite of executing is one of the alone facets within the capital penalty system of the People ‘s Republic of China ( Criminal Law of the People ‘s Republic of China, 1997 ) . Under Section 5, Article 48 of the Criminal Law of the People ‘s Republic of China ( 1997 ) , it states that there is a possibility of holding a biennial respite for capital penalty on instances which needs non be punished instantly. Wang ( 2011 ) explained that the reason behind this is for the “ decrease in usage of the decease punishment ” , “ cautious application of the decease punishment ” , and “ tempering justness with clemency ” . It is because in the past old ages, the turning figure of people sentenced with capital penalty has become alarming, and with this, the Chinese Government hopes that the infliction of the biennial respite would convey a diminution to the figure of instances ( The Supreme People ‘s Court of the People ‘s Republic of China, 2002 ) . Harmonizing to Wang ( 2011 ) , if the individual observes good behaviour during the biennial respite, there is a opportunity that his penalty would be reduced into life imprisonment. It besides serves as a period where drug sellers are subjected into forced labour, as a manner of reforming them ( Belkin 2000 ) .
The bilateral dealingss of the Philippines and China are weakened with the executings of Overseas Filipino Workers ( OFWs ) who were convicted of drug trafficking. Since 2011, China executed four OFWs with drug trafficking instances viz. : Ramon Credo, Sally Villanueva and Elizabeth Batain in March 2011, and an nameless 35-year old Filipino in December 2011 ( Santos, 2011 ) . It is reiterated by the Presidential Communications Operations Office [ PCOO ] ( 2011 ) that China carried out the executing despite of the Philippines ‘ entreaty for mildness to transpose capital penalty to life imprisonment.
Mildness can non be granted to the Filipinos on the decease row because of the rigorous execution of the Chinese Torahs. Harmonizing to Guiang ( 2012 ) , one time a finding of fact of the Supreme People ‘s Court of the People ‘s Republic of China [ SPA ] has been made, pleads of the Filipino authorities will no longer alter the determination. Filipino Vice President Jejomar Binay went to China on March 2011 to appeal for mildness to the three OFWs who were on the decease row ( PCOO, 2011 ) . As stated by PIA ( 2011 ) , in position with the diplomatic dealingss with the Philippines and in conformity to the Chinese Torahs, Chinese functionaries granted the delay of the executing of the three OFWs to a month, from February to March. The Philippines appreciated the delay of the executing and to the full respected the concluding finding of fact of the SPA ( PCOO, 2011 ) .
The executing of capital penalty to the four OFWs did non do strains to bilateral dealingss, as reiterated by both states. This statement is proved by the Official Gazette of the Republic of the Philippines [ OGRP ] ( 2011 ) that the executings of the OFWs produced stronger bilateral dealingss between China and the Philippines through the Joint Statement of both states which aimed to advance and beef up political cooperation between the two states. In the political facet, both states advocated in battling multinational offenses, including drug trafficking, protection of subjects, dialogues for a pact in relation to common legal aid in condemnable affairs and transportation of sentenced individuals are made, as reiterated by OGRP ( 2011 ) . Furthermore, a memoranda of understanding between the Department of Foreign Affairs ( DFA ) of the Philippines and the Ministry of Foreign Affairs ( MFA ) of China is signed to beef up political cooperation between the two states to forestall OFWs from being involved in future drug trafficking incidents ( OGRP, 2011 ) .
The Capital penalty is considered a misdemeanor to the International Human Rights Law. The Capital penalty or popularly known as decease punishment in China to drug wrongdoers has been a great concern for the international community because it violates the International Human Rights Law and the most cardinal jurisprudence which is “ the Right to life ” ( Lines, 2007 ) . There are three major international organisations that protects human rights because of China ‘s process on executing and sentencing and doing the decease rate of executings a province secret and that is why organisations such as Amnesty International, International Harm Reduction Association and the United Nations are contending to get rid of it. Harmonizing to the International Human Rights Law drug discourtesies is non applicable to what they refer as offenses that are punished with decease it is merely those individuals that committed the considered “ most serious offenses ” should be given a penalty of decease sentence in Article 6 ( 2 ) . This jurisprudence was besides given a declaration by the United Nations and that Drug trafficking is non recognized and considered by the International Human Rights Law as one of “ most serious offenses ” ( Gallahue, 2011 ) .
There are major organisations that are taking substantial steps to halt the executing of capital penalty in some states. The organisations are the United Nations Commission on Human Rights ( UNCHR ) , the International Harm Reduction Association ( IHRA ) and the Amnesty International ( Lines, 2007 ) . Harmonizing to the International Harm Reduction Association ( 2007 ) , the Chinese authorities violates the International Human Rights Law which is proved by Lines ( 2007 ) in a manner that it does n’t see drug offenses a offense that is punishable with decease sentence. In China ‘s legal system, the jurisprudence on decease punishment on drug sellers is stated in Article 347 of China ‘s Criminal jurisprudence, they have specific Torahs on the sum of gms of drugs that was being handled by the foreign national shall subjected to interrogation instantly without holding a legal advocate to support him and merely after a certain period of clip so he shall hold a legal advocate but if the accused foreign national have witnessed that he did transport such drugs so he shall be on test and sentenced with decease punishment ( Supreme People ‘s Court of the People ‘s Republic of China, 2002 ) . Although the Chinese authorities have its system of look intoing the prosecution in the test, still, the foreign national could non support himself because of the circumstance that the attorney is non of which of his pick to support him, that entirely is bias, that fact is know aparting and is hence a misdemeanor to the International Human Rights Law ( Gallahue, 2011 ) .
The international community, as a whole, does non perceive drug offenses as punishable by decease sentence. Harmonizing to Lines ( 2007 ) the attack of the states that follows this pattern does give rationale justification that drug offenses are so punishable by decease. It is viewed by China that a drug offenses is a sedate offense while in the International Human Rights Law, it is merely when a offense against the province and a homicide should be considered a offense punishable by decease ( Bi, 2012 ) . Harmonizing to the International Harm Reduction Association [ IHRC ] ( 2007 ) , there have been disproportional executing and sentenced foreign subjects when it comes to drug trafficking because of the deficiency of due procedure in the process of finding if whether or non the false felon is guilty of smuggling drugs or non because of prejudiced Torahs on drugs with foreign subjects. This is why drug instances in China refering to foreign subjects are really dismaying to the people who are be aftering to see China or work at that place possibly ( Lines, 2007 ) . A retentionist province like China grounds that they are following this decease punishment process to safe guard their state from difficult drugs and harmonizing to the United Nations Working Group on Arbitrary Detention that states that have decease punishment penalty to drug trafficking should be abolished because they failed to give an equal protection on due procedure ( Gallahue, 2011 ) . In Chinese jurisprudence process, in Article 61, which states that those that will be given a penalty will be based upon the nature of the incident of when he was caught with the drugs and the fortunes of whether how harmed the society, But in drug trafficking they do non follow as such, they merely find a drug seller when he is caught with the drugs on his bag but they do non see the other mitigating fortunes on whether it was planted by person else and this makes it even beliing to Torahs they have on their system ( Supreme People ‘s Court of the People ‘s Republic of China, 2002 ) .
The People ‘s Republic of China argues that put to deathing capital penalty on drug wrongdoers a grave discourtesy and therefore is capable to decease punishment. In conformity to this, the Human Rights Committee have besides made it clear that in Article 14 which provinces that, “ including a right to a just hearing by an independent court, the given of artlessness, the lower limit warrants for defence and the right to reexamine by a higher court and besides the right to seek forgiveness on the sentence ( International Harm Reduction Association, 2007 ) . However, in China ‘s legal system in penalizing drug wrongdoers, it is non stated there that they have the right to seek forgiveness and that entirely is a misdemeanor in the International Human Rights Law. China as a retentionist argues with the fact that although drug related offenses are non-violent offenses, it is still a grave offense because it is flagitious, dangerous and it destroys their traditional values and with these things it consequences to societal injury ( Supreme People ‘s Court of the People ‘s Republic of China, 2002 ) .
3.0 Consequences and Discussion
In 2001, four OFWs were sentenced with capital penalty in the People ‘s Republic of China ( PRC ) due to drug trafficking. Ramon Credo, Sally Villanueva and Elizabeth Batain were caught smuggling drugs weighing 1 kg in March ; meanwhile an nameless 35-year old Filipino in December was caught with 1.5 kgs of drugs. With the application of the Chinese Criminal Law, these four OFWs were instantly subjected with capital penalty for illicitly possessing more than one kg of narcotic drugs. Like any other condemnable instances within the PRC, there were set of processs being observed during the whole procedure of their test.
The Chinese and the Filipino authoritiess signed a Memorandum of Understanding ( MoU ) on August 31, 2011 and made a Joint Statement on September 01, 2011 to forestall farther future drug trafficking incidents that will affect OFWs ( The Philippine Embassy in China, 2012 ) . This is pursuit of the committedness of both states to battle multinational offenses, which includes drug trafficking.
Table 1 and 2 shows the informations on the Filipino imports public presentation with the People ‘s Republic of China from January to May 2012 and 2011 and the Filipino exports public presentation of May 2012 and 2011 with the said state.
Table 1. Filipino Imports Performance with People ‘s Republic of China: January to May 2012 and 2011 ( in Million U.S. Dollars )
Beginning: hypertext transfer protocol: //www.census.gov.ph/data/sectordata/2012/im120503.htm
Table 2. Filipino Exports Performance with People ‘s Republic of China: May 2012 and 2011
( in Million U.S. Dollars )
Beginning: hypertext transfer protocol: //www.census.gov.ph/data/pressrelease/2012/ex1205tx.html
The figures presented in Tables 1 and 2 show that there is no diminution in the imports and exports between the Philippines and the People ‘s Republic of China after the executing of capital penalty for drug trafficking of the three OFWs. Alternatively, the trade between the two states strengthened as imports and exports increased.
Table 3 presents the informations on the Overseas Filipino Workers ‘ ( OFWs ) Cash Remittances from the People ‘s Republic of China on January to June 2012 and 2011.
Table 3. Overseas Filipino Workers ‘ Cash Remittances January to June 2012 and 2011 ( Landbased and Seabased ) ( in Thousand U.S. Dollars )
Beginning: hypertext transfer protocol: //www.bsp.gov.ph/statistics/keystat/ofw.htm
The information presented in Table 3 shows that there is no bead in the in the hard currency remittals sent by OFWs from China to the Philippines despite of the executing of the three OFWs in March. Alternatively, the hard currency remittals flow from China to the Philippines grew stronger in January to June 2012.
The Universal Declaration of Human Rights ( UDHR ) [ 2012 ] that promulgated the International Human Rights jurisprudence have strongly confute on the capital penalty issues on some states that are put to deathing persons that have committed offenses that are non considered as “ most serious offenses ” ( UDHR, 2012 ) . As all other human rights, the right to life is the first and foremost nucleus value of the UDHR and that is what the People ‘s Republic of China violated ( Nowak, 2005 ) . It does non merely protect persons against arbitrary intervention by Government agents, but besides obliges States to take positive steps in order to supply protection from arbitrary violent deaths, enforced disappearings and similar violent Acts of the Apostless committed by paramilitary forces, organized offense or any private person ( Nowak, 2005 ) . Under the Torahs of the UDHR, the states that have capital penalties should follow just test to give the accused individual the chance to support himself. States must therefore criminal such Acts of the Apostless as offenses, and must implement appropriate statute law ( UDHR, 2012 )
Harmonizing to the Article 5 of UDHR “ No 1 shall be subjected to torment or to cruel, inhuman or degrading intervention or penalty. ” The minute that the declare to a individual that he/she will be subjected to capital penalty such as decease punishment through deadly injection is already a mental anguish to a individual. It is already doing mental hurting for a individual to hold the torment of waiting for the clip he/she will be killed ( UDHR, 2012 ) A penalty such as deadly injection to foreign drug wrongdoers in the People ‘s Republic of China can be considered already as barbarous penalty because it is killing of another person and therefore it is inhume and a corrupting penalty. ( UNCHR, 2012 )
The International Covenant Commission on Civil and Political Rights ( CCPR ) [ 2007 ] is the compact made by the United Nations Commission on Human Rights with respects to the protection of the single rights of a individual such as the Right to Life. Harmonizing to Article 7 of CCPR “ No 1 shall be subjected to torment or to cruel, inhuman or degrading intervention or penalty. In peculiar, no one shall be subjected without his free consent to medical or scientific experimentation. ” The UDHR and the CCPR clearly has the same place with barbarous penalties. The CCPR besides is strongly contending for its abolishment. In Article 6 of CCPR, it stated “ Nothing in this article shall be invoked to detain or to forestall the abolishment of capital penalty by any State Party to the present Covenant. ” Prior to this jurisprudence, there are still retentionist states that are inactive to what these International Laws are recommending ( CCPR, 2007 ) .
Furthermore, since retentionist states still do what they have practiced, the international jurisprudence provides for procedural demands applicable to all decease punishment instances: just test warrants, the possibility of entreaty to a higher tribunal, and mildness ( Nowak, 2005 ) . Harmonizing to Article 6 ( 4 ) of CCPR, amnesty, forgiveness or commuting of a decease sentence may be granted at all times. Mildness may prorogue or put aside a decease sentence for case, by transposing it to life imprisonment and can be used to do up for mistakes, extenuate a rough penalty or compensate for any condemnable jurisprudence commissariats that may dis- allow consideration of relevant factors. The right of any decease inmate to seek mildness is clearly affirmed in international human rights jurisprudence. However, the People ‘s Republic of China seldom grants mildness to drug wrongdoers in their state, they have a strong base point in their Torahs on drug related offenses ( Nowak, 2005 ) .
Harmonizing to CCPR, the decease punishment should represent exceeding penalty, ever meted out in conformity with the rule of proportionality. Article 6 of CCPR refers to “ the most serious offenses ” and, under the Safeguards, the definition of the “ most serious offenses ” punishable by decease “ should non travel beyond knowing offenses, with deadly or other highly sedate effects ” . But this is non being applied to the People ‘s Republic of China because they are put to deathing decease punishment on foreign drug wrongdoers caught in their province ( Nowak, 2005 ) .