English - CEDAW Southeast Asia

CEDAW and the Law:
which have conducted first-instance trials shall have to examine the conditions for non-application
of death penalty, prescribed in Article 35 of the Penal Code. If there are grounds that
the convicts meet the conditions prescribed in Article 35 of the Penal Code, the presidents of
the courts … shall not issue decisions to execute the judgments and report such to the
President of the Supreme People’s Court for consideration and commutation of the death
penalty to life imprisonment for the convicts.” Further, this article provides: “Before executing
women convicts, the judgment-executing councils shall, apart from checking their identity
cards, have to check the documents related to the conditions for non-application of the death
penalty prescribed in Article 35 of the Penal Code.” Finally, Article 259 provides: “Where the
judgment-executing councils detect that the convicts meet the conditions prescribed in Article
35 of the Penal Code, they shall postpone the execution and report such to the presidents of
the courts … for reporting to the President of the Supreme People’s Court for consideration
and commutation of the death penalty to life imprisonment for the convicts.”
Resolution No. 32/1999/QH10 of December 21, 1999 on the Enforcement of the Penal
Code (Resolution on Penal Code) states: “(a) Capital punishment shall not apply when adjudicating
persons who commit offenses for which the capital punishment is done away with by
this Penal Code, to pregnant women, to women who are nursing their children of under 36
months old by the time of committing the offense or being adjudicated; (b) The capital punishment
already handed down to person mentioned in Point a, this Section, but not yet executed,
shall not be enforced and commuted to the highest penalties prescribed by this Penal
Code for such offenses; when the new law provisions still retain the capital punishment, the
capital punishment already handed down to pregnant women or women who are nursing their
children of under 36 months shall be commuted to the life imprisonment.”
Many see this as a form of protective legislation in favor of pregnant women and nursing
mothers and subject to controversy. However, the beneficiary of this special treatment is
not simply the mother, but more importantly the child. By ensuring the non-execution of the
death penalty, the child can be born as well as benefit from breastfeeding.
In some comparative jurisdictions, the death penalty is simply suspended until after the
pregnancy or nursing time. In this case, however, there is commutation to life imprisonment.
With the policies now of encouraging men to participate in the care and rearing of their children,
the fact that there are women who are non-nursing (either due to medical reasons or
not), or the practice of women replacing breast milk with milk substitutes at a period earlier
than 36 months, a continuous review of this legislation is needed.
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Recommendation: A review of Article 35 of the Penal Code and Article 259 of the
Criminal Procedure Code must be initiated regularly concerning the period of nursing
that warrants the commutation of the death penalty. Viet Nam should also review the
possibility of abolishing the death penalty as a whole.
Pregnancy as an extenuating and aggravating circumstance
In addition to being exempted from the death penalty, Article 46 of the Penal Code identifies
pregnancy as a circumstance that extenuates penal liability. On the other hand, Article 48 of
the Penal Code states that offences committed against pregnant women will aggravate penal
liability.
Review of key legal documents and compliance with CEDAW