Saving a life is never stupid

 

 

I’ve just been reading a scathing comment in a social-political forum criticizing the Philippine government’s intervention in the forthcoming execution by China of a Filipino woman caught entering the country with 6.171 kilos of heroin. In China, possession of 50 grams of drugs is punishable by the death penalty, usually carried out through lethal injection.

 

“Enough of this stupidity. Ignorance of the law does not spare anyone.......and stop spending our money for issues that are meritless,” the commentator wrote.

In 2008, 52 Filipino drug mules, mostly women, were caught by the Chinese
authorities  for drug trafficking. Photo by Ramon Asuncion, No Drugs. Click
link http://www.youtube.com/watch?v=WdyJZEyYQ6s , China-Women
Await Execution in Death Row.

There are at least three important issues raised in this sardonic comment. One, it is stupid on the part of government to help its citizens caught for a crime, particularly a drug-related offence, committed in a foreign country. Second, the accused cannot plead ignorance of the law which is not a valid excuse. By the way, this issue has never been raised as a defence. And third, the government should not spend public money for issues without merit, such as this one.

 

Let’s set aside momentarily the sanctimonious mindset that the aforementioned comment appears to advocate and dispassionately analyse China’s harsh criminal justice system as it relates to drug-related crime.

China had a horrific past history of drug use as a consequence of the Opium Wars with the British. In 1842, there were two million Chinese drug addicts caused by illegal trade in opium. By 1881, the Chinese population of drug addicts had gone up to 120 million. The opium trade substantially weakened the Chinese state leading to its defeat in the two Opium Wars with the British.

 

Adding to this sordid past is that China also shares borders with two major areas of drug production, the so-called “Golden Triangle” area in the southwest and Afghanistan. The Golden Triangle produces up to 70—80 tons of heroin each year: the annual opium production in Afghanistan is more than 3,600 tons, much of which comes into or through China. With a population over 1 billion, the potential number of people using drugs in China is very large.

 

Thus, it is no surprise that China has adopted a harsh crackdown policy for drug-related crime, and it is underpinned by the idea that the harsher the punishment for the crime, like the death penalty, the more likely it is to deter individuals from engaging in it. However, from the perspective of both penology and human rights, China’s draconian policy of applying the maximum death penalty for drug offences is regressive in light of the fact that that many countries whose legislation at one time provided for the death penalty for such crimes have subsequently abolished it.

Chinese opium and pipe smokers. Photo courtesy of The Nite Tripper.

Under Chinese law, persons caught smuggling, trafficking in, transporting or manufacturing opium of not less than 1,000 grams, heroin or methyl aniline of not less than 50 grams or other narcotic drugs of large quantities can be sentenced to death. In assessing whether an offence reaches the threshold of severity necessary to impose the death penalty, Chinese authorities simply employ a quantitative model that treats all substances the same regardless of their content or harmfulness.

 

The Filipino woman whom China will execute in the ensuing days for the crime of drug trafficking was travelling as a tourist with an unidentified man when she was arrested at an international airport in a province near Shanghai in 2011. According to the Department of Foreign Affairs, she was arrested with a male companion who was caught carrying 6.171 kilos of heroin in his own luggage. The male companion was able to obtain a reprieve of his death sentence for two years.

 

Drug trafficking in China is an offence punishable by death, a form of generalized punishment that fits all components of the crime no matter what the circumstances are, or the quantity or quality of the crime. The punishment does not differentiate if one is carrying 10 kilos or a mere pound of heroin. Worse, mere possession or the act of carrying the banned substance is considered drug trafficking.

 

In countries with a more liberal criminal justice system like the United States and Canada, such kind of offence is punishable by imprisonment, 10 years maximum. Possession of heroin or cocaine for the purpose of trafficking, of course, is entirely different and usually calls for life imprisonment. But it would not merit the spectacle of the scaffold. By any measure, the Chinese death penalty does not fit the crime.

 

It’s not just the repressiveness of China’s law on drug crimes but its judicial process often functions in a dogmatic manner. Yingxi Bi, a Chinese human rights scholar, has observed that the Chinese judiciary leans towards the death penalty when the quantity of the drugs has reached a level that has been determined to attract such a sentence. A recent survey found that 90% of Chinese judges favour the imposition of the death penalty, 93% of prosecutors were in favour, 94% of policeman, and 95% of lawyers. When a foreigner is charged before a Chinese court of drug trafficking, where else could one get an unbiased lawyer to defend him or her?

 

Criminal trials in China have been criticized for not observing international standards such as independence, objectivity and impartiality, which are important in protecting the rights of people facing capital punishment. Competent defence counsel is often lacking at every stage of the trial process. Furthermore, mitigating circumstances are not taken into account in sentencing.

 

Is the condemned Filipino woman ably represented in court by a competent defence counsel? Did the Philippine consular office assist in enabling the woman obtain counsel for her defence or in simply knowing her basic legal rights? Or is it too late for the Philippine government to intervene as the death sentence has already been handed down? These are nagging questions that remain unanswered. One could easily speculate that no assistance has been offered by the Philippine diplomatic office in Shanghai since the accused is a mere nobody and the late request for government intervention could just be a token of concern.

 

But if you are rich and powerful like former Congressman Ronald Singson, son of Ilocos Sur political kingpin, Luis Crisologo “Chavit” Singson, you can control the hands of fate. Represented by an able defence attorney, the young Singson pleaded guilty to drug trafficking before the Wan Chai district court in Hong Kong and was sentenced to a year and a half in jail for trafficking cocaine last February 2011. A month after, three Filipinos, ordinary and poor overseas workers, were executed by lethal injection by the Chinese government on similar charges. Adding truth to the irony that some are more equal than others.

 

From the standpoint of penology, imposing the death penalty to drug crimes is not reasonable and is not effective in preventing and deterring future offences. China’s policy reflects the ancient notion of “an eye for an eye,” that the death penalty fits the crime. Even under this very old concept of retribution, the central idea is that there should be an equivalence between the severity of the punishment and the harmfulness of criminal act.

 

From a criminal law perspective, drug-related crime is considered nonviolent, and does not directly endanger human life or cause injury. Absent any specific violent act associated with the drug offence, drug-related crimes are not on par with murder, terrorism or other acts resulting in death or serious injury. To reflect the gravity of the act, the punishment for drug-related crimes should be more lenient than that prescribed for crimes of murder or similar acts causing physical injury. To punish drug crimes with the deprivation of life is essentially to undermine the basic balance between crime and punishment.

 

Available data on drug offences in China in recent years hardly reveal the type of decline in crime one would expect if the death penalty policy was an effective deterrent. According to the Annual Report on Drug Control in China the number of criminal suspects in drug cases was 73,400 in 2008, which increased to 91,000 in 2009 and 101,000 in 2010. Chinese authorities investigated 89,000 drug-related crimes in 2010, which represents an increase of 14.5% over the previous year’s figures. In practice, China’s imposition of the death penalty to prevent and curb drug-related crime therefore seems ineffective.

 

In 2009, the United Nations High Commissioner for Human Rights noted that “the application of the death penalty to those convicted solely of drug-related offenses raises serious human rights concerns.” In his 2010 report to the General Assembly, the UN Special Rapporteur on the Right to Health also affirmed that the death penalty for drug-related offences violates international human rights law. The United Nations Office on Drugs and Crime (UNODC) also acknowledged in a 2010 report that, “As an entity of the United Nations system, UNODC advocates the abolition of the death penalty and calls upon Member States to follow international standards concerning prohibition of the death penalty for offenses of a drug-related or purely economic nature.”

The 'criminal number 2012', is a metaphor for democracy in China, where the
 death penalty is carried out by execution by firing squad. Photo courtesy of
 Benny, Chun Wai Yuen.

Going back to the earlier commentary made in a social-political forum, there is nothing stupid for any member of the human race or let alone the government to intervene and ask the government of China for reprieve or commutation of the death sentence. The hapless Filipino woman is not asking to reverse the Chinese court’s decision to impose the death penalty for her crime because she was ignorant of the law. On the other hand, it smacks of ignorance for those who continue to believe and argue that the woman committed the crime out of pure defiance of the law.

 

The Philippine government has a responsibility to its citizens abroad, whether they have committed abominable crimes or accomplished remarkable acts of achievement. Both criminal and hero reflect on us as a people.

 

It’s never without merit to assist a Filipino accused of a crime in a foreign land, especially if that country has the record for the most number of people executed for criminal offences. When a country’s judicial process is known to be wanting for fairness and reasonableness, the more our government should be vigilant that its citizens abroad have access to competent defence and protection of their basic rights.

Unequal justice – “too big to jail”

 

 

Crimes in this day and age are usually what ordinary people commit. But when the great and powerful commit them, they are often called business or statesmanship.

 

The United States today is considered the most aggressive country in imprisoning offenders. It puts more people in prison than any other nation on earth. American courts invariably sentence criminal offenders for longer periods of time, and for more trivial offences than any nation in the West.

The Rolling Stone magazine called HSBC the gangster bankers that was
"too big to jail."  Illustration by Victor Juhasz. Click link to view "After
Money Laundering $800 Million in Drug Money, How Did HSBC..."
 http://www.youtube.com/watch?v=K800WHFqy1g

But not everyone is subjected to this kind of penal harshness. It totally changes when the nation’s most powerful actors are caught breaking the law. With few exceptions, the justice system treats them not merely with leniency, but even grants them full-scale immunity from criminal punishment. The most egregious crimes of the last decade in America have been fully sheltered from prosecution when committed by those with the greatest political and economic power. We could point to examples such as the construction of a worldwide torture regime, spying on Americans’ communications without the warrants required by criminal law by government agencies and the telecom industry, an aggressive war launched on false pretenses, and massive, systemic financial fraud in the banking and credit industry that triggered the 2008 financial crisis.

 

Consider the recent full-scale immunity bestowed on HSBC, Europe’s largest bank headquartered in London. A US senate probe found that HSBC has lax controls that allowed money laundering for seven years. The bank’s lax controls allowed Mexican drug cartels to launder billions of dollars through its US operations, according to an investigation by the US senate. It also enabled HSBC bank affiliates to evade US government bans against financial transactions with Iran and other countries. The senate investigation also reported that the US division of HSBC provided money and banking services to some banks in Saudi Arabia and Bangladesh believed to have helped fund al-Qaeda and other terrorist groups.

 

What was the US response to HSBC’s transgressions?

 

The US Department of Justice under the Obama administration believed that big banks are “too big to jail” and decided to fine HSBC instead of criminally prosecuting its vast money laundering operation. Prosecution would upset markets, the White House feared. The US government’s excuse that HSBC is just too big to prosecute is the same lame argument used in refusing to break up the big American banks in the aftermath of the “too-big-to-fail” crisis of 2008.

 

It’s not just HSBC which was misbehaving badly. Before HSBC was investigated, the Barclays Bank scandal in the UK over manipulated interest rates has provoked international outrage over what many view as regulators’ failure to enforce financial regulation. Standard Chartered, another large British bank, also agreed to pay more than $660 million to settle charges for violating US sanctions on doing business in Iran, Burma, Libya and Sudan. The Royal Bank of Scotland is also reported to be facing investigations into possible violations of US sanctions on Iran. Money laundering by large international banks has reached epidemic proportions, and U.S. authorities are supposedly looking into Citigroup Inc. and JPMorgan Chase & Co.

 

Officials from the US Department of Justice flaunted the $1.9 billion fine HSBC would pay as the largest ever for such a case. However, the Guardian noted, “The sum represents about four weeks’ earnings given the HSBC’s pre-tax profits of $21.9bn last year.” There was no doubt that HSBC’s wrongdoing was serious and pervasive, but it is simply too big, too powerful, too important to prosecute, thus prompting the New York Times to declare in an editorial that “It is a dark day for the rule of law.”

 

Glenn Greenwald, writing for the Guardian, was outraged by the US tepid response to HSBC’s large-scale money laundering. He wrote: “The poor and racial minorities in particular are locked up at an astonishing rate, often for minor drug offenses. Yet HSBC gets off the hook. It is truly difficult to imagine corruption and lawlessness more extreme than having the government explicitly place the most powerful factions above the rule of law.”

 

Greenwald considers the HSBC case as a disgraceful illustration of a two-tiered justice system in America, the subject of his book, With Liberty and Justice for Some. He wrote that the principle where all stand equal before the blindness of Lady Justice is “now not only routinely violated, as was always true, but explicitly repudiated, right out in the open. It is commonplace to hear US elites unblinkingly insisting that those who become sufficiently important and influential are—and should be—immunized from the system of criminal punishment to which everyone else is subjected.”  

HSBC,  Europe's largest bank  was caught in  drug money laundering scandal.
Photo by Julius Kielaitis/The Shuttershock. Click link to view "Monkeys &
Cocaine: HSBC Money Laundering Case,"
 http://www.youtube.com/watch?v=IO4KRUnipNM

Listen to what Greenwald would further say about the perverse premise that large and powerful financial institutions ought to be shielded from the long arm of the law: “Worse, we are constantly told that immunizing those with the greatest power is not for their good, but for our good, for our collective good: because it’s better for all of us if society is free of the disruptions that come from trying to punish the most powerful, if we’re free of the deprivations that we would collectively experience if we lose their extraordinary value and contributions by prosecuting them.”

 

This was the same reasoning for justifying immunity for state officials for torture of war prisoners and US telecom giants in illegally spying on Americans. We’re told that we need them to keep us safe and that we can’t disrupt them with prosecutions. That is, the government cannot prosecute Wall Street criminals for fraud because prosecuting them for financial crimes would disrupt our collective economic recovery.

 

If the justice system can be distorted to accommodate and protect the great and powerful, ordinary and powerless folks, on the other hand, who commit petty crimes are oftentimes prosecuted and imprisoned with the greatest aggression possible. Thus, when a Muslim is prosecuted for helping a terrorist group, even by accident, he would be going to prison for a long, long time. Powerless, obscure, low-level employees are in fact routinely sentenced to long prison terms for engaging in relatively petty money laundering schemes, unrelated to terrorism, and on a scale that is a tiny fraction of what HSBC and its senior officials are alleged to have done.

 

Take for instance the following two petty crimes compared to the misdemeanours of HSBC and other large banks.

 

Robert Docherty, a wild mushroom picker from Maple Ridge, British Columbia, found himself an unhappy victim of the mighty hands of the law when applied to common people like him. Canadian customs officers at the Toronto Pearson International Airport seized from Docherty cash amounting to $10,000 which he was carrying while boarding a flight bound for Costa Rica.

 

Under Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, Docherty was entitled to carry $10,000 and not a dollar more, out of the country without declaring it.

 

There was $9,880 in U.S. currency and another $335 Canadian in Docherty’s possession. Docherty explained he’d calculated the Canada-US exchange rate so the total amount to come in under the $10,000 limit. Unfortunately for Docherty, by the time he took his flight the US dollar had strengthened, making his package worth more than $10,000 Canadian.

 

Whether Docherty was telling the truth that the money he was carrying was destined for a real estate deal involving a seller who wanted cash, his experience shows what happens when ordinary people who live by the rules run afoul of the law.

 

Or consider the sad tale of Genet Shume, an Ottawa resident and single mother who came to Canada from Ethiopia. Last September 2012, Shume was about to travel to her home country with her two children. She was carrying a large amount of cash—$12,000—that she saved from working at a bank. Shume was unaware of the restrictions under Canada’s law on money laundering and terrorist financing which require those leaving the country with $10,000 or more in cash or foreign currency to report it to a border services officer.

Genet Shume, a single mother who came to Canada from Ethiopia, was headed to
 her home country with her two children to give family and friends money she had
 saved working at a bank. Photo by CBC News.

Before authorities seized the $12,000, they asked Shume whether she was involved in drugs or terrorism. When she answered no, they allowed Shume and her children to board the plane, but without the money. Shume was forced to beg for food when they arrived in Ethiopia.

 

The law is applied differently and much more leniently, however, for alleged perpetrators from the great and powerful, as in the case of the family of former Philippine strongman Ferdinand Marcos. Marcos had been accused of funnelling billions of dollars into Swiss and other foreign accounts abroad. Up until now, the Philippine government has not fully recovered money that was illegally pilfered from the country’s treasury. Meanwhile, the survivors of the dictator—his wife and children—are back in political power and have remained untouched by criminal prosecution.

 

Marcos wasn’t alone in this acknowledged custom of Philippine public officials of ransacking the government’s coffers. Former presidents Joseph Estrada and Gloria Macapagal-Arroyo and other major officials of the government and high-ranking officers of the military have remained unscathed despite accusations of plundering the country’s economy for personal gain.

 

It appears that the justice system and its courts, whether in advanced or less developed societies, are not where we can find the future’s best hopes for the idea of equal justice to prosper, and to apply it equally to everyone, no matter what their station in life is. When the great and powerful are shielded from criminal sanctions to which the rest of us are subject, it becomes only a matter of time when that tipping point is breached for the ordinary and powerless to take matters into their hands.