Alexander Gillespie: Bring home Kiwis facing penalties overseas

Although most are in the US, Europe and Australia, an increasing number are being incarcerated in locations where the penalties are closer to the Middle Ages than what exists here.

Opinion

One of the more disturbing emerging trends is the number of New Zealanders being arrested in foreign countries for drug trafficking.

These individuals are a very small part of one of the largest problems of the 21st century, namely the illegal trade in opiates, cocaine, cannabis and amphetamine-type stimulants. This industry is worth around US$435 billion ($563 billion) a year. The majority of this trade is linked to international organised crime; drugs account for 50 per cent of their income.

About 144 tonnes of amphetamine-type stimulants alone were seized globally in 2013. Half of this was in North America, and a quarter in East and Southeast Asia.

Two recent incidents involve Kiwis allegedly involved in trafficking large amounts of methamphetamine. The men were caught in Indonesia and China. These are not cases of attractive females with relatively small amounts of marijuana which would cause debatable social damage. These are people who, if convicted, will be found to be responsible for the destruction of the lives of hundreds of others. Indonesia and China have a strong interest in putting these individuals on trial. This is standard practice as each state jealously guards its laws to protect its citizens, society and principles.

Accordingly, when people are tried for crimes in foreign countries, it is no defence to say they are foreigners. As the recent debate over the Malaysian diplomat returned to the New Zealand judicial system has shown, the public expect the law to be applied regardless of nationality.

The result of such thinking is about 300 prisoners of foreign nationality are housed in our jails. Conversely, there are at least 90 New Zealanders held in the prisons of at least 26 other countries.

Although most are in the US, Europe and Australia, an increasing number are being incarcerated in locations where the penalties, and the standards of incarceration, are closer to the Middle Ages than what exists here.

The worst example of these standards is with the death penalty. More than two-thirds of countries have abolished the death penalty in law or practice. Countries do this because the premeditated and cold-blooded killing of a human being by the state is the ultimate denial of any meaningful ideal of human rights, the right to life in particular. It is a cruel, inhuman and degrading act done in the name of justice. There is also always the risk that the convicted person is innocent.

Although capital punishment was not removed as a legal penalty in New Zealand until 1989, our prohibition was in accordance with the global trend against capital punishment. Forty-one countries object to any attempt to make capital punishment illegal. Around 5000 deaths occur each year in China. Iran, Iraq and Saudi Arabia are the next in line for killing most of their inmates. The US, with more than 3000 on death row, executed 39 convicts in 2013.

The reasons for execution depend upon each country. One of the most common reasons is related to illegal drugs. At least 32 states around the world prescribe the death penalty for drug offences. In 13 countries the death penalty is mandatory. It is estimated that up to 1000 of the people executed each year are killed for drug offences. In Indonesia, of the 130 people on death row, the majority are for drug-related offences, and many are foreigners. Of the five people the Indonesians executed in 2013, two were for drug trafficking.

It is due to such considerations that a number of countries have implemented specific legislation to obtain the return of their citizens when incarcerated in foreign countries. Such legislation facilitates prisoner transfers, whereby the prisoner is still required to serve the sentence, or its equivalent, but in their home country.

The US, Europe, and Australia are all notable in this regard. There are strong economic, social and humanitarian reasons for this approach. Although New Zealand participates in some such arrangements, they are minimal and ad-hoc. We have no comprehensive approach to such concerns, nor specific arrangements with countries such as China or Indonesia, where two New Zealanders are about to go on trial for their lives. The only certainty we have is that these will not be the last Kiwis to face such an ordeal. The question is whether we want to prevent it in the future.

Alexander Gillespie is professor of law at the University of Waikato.