CONSULAR ASSISTANCE FOR FOREIGN NATIONALS The Death Penalty For Drug Offences: Foreign Nationals Where states’ laws and practices compound discrimination against minority groups and non-citizens, international human rights law calls for measures to ameliorate disadvantage. The possibility of a foreign national in a retentionist country being disadvantaged was recognised by the Vienna Convention on Consular Relations (1963; ratified by 179 states), which defines a framework for consular relations between independent states aimed at securing procedural equality between foreign nationals and citizens. Article 36 provides that the competent authorities of a state in which a foreign national is arrested, detained or committed to prison shall without delay inform the consular post of that person’s state. Consular authorities must be allowed access to the detainee, and to assist, not least by providing access to competent counsel, but also securing reliable interpretation services. The consulate may also make representations to the clemency authority on behalf of the prisoner. However, consular assistance is often not provided in a timely fashion. For example, Saudi Arabia frequently denies consular assistance to foreign nationals.vi Similarly, while Malaysia’s consular obligations have been incorporated into Malaysian domestic law, the police rarely inform the embassies, and the prison service are only a little more responsive, leaving many foreigners without support in pre-trial and trial processes. THE CASE OF ZULFIQAR ALI Today over 11,000 Pakistanis are detained in jails abroad, many in Asia and the Middle East.vii Zulfiqar Ali, a Pakistani citizen, died of cancer while under sentence of death for drug possession in Batu prison, Indonesia. He had been imprisoned for 13 years for possession of 300 grams of heroin, though he had not been caught with drugs; they were found on another man who implicated Ali–a man with no prior drug history or convictions. Ali had confessed under duress, a confession that should not have been relied on at trial. An independent inquiry in 2010 declared him to be innocent; it further acknowledged he had been abused in pre-trial detention, had not received legal advice or an interpreter, and that there was no evidence against him. Notwithstanding, in July 2016 he was prepared for execution, though the procedure was halted at the last minute following an intervention by the President of Pakistan. Ali died in 2018, not long after an unsuccessful application for clemency.viii RECOMMENDATIONS i. ii. iii. iv. v. vi. vii. viii. 1. Retentionist states must abolish the death penalty for drug offences as a step towards abolition. 2. The European Union and the UN must urge Member States that continue to use the death penalty to comply fully with their obligations to provide consular assistance to all foreign nationals detained, particularly those at risk of capital punishment. 3. All governments should intervene more actively to assist their own nationals at risk of capital punishment overseas. Giada Girelli (2019) The Death Penalty for Drug Offences: Global Overview 2018 reports at least 91 executions for drug offences in 2018. After the publication, official figures on Singapore were published, revealing two more execcutions for drug offences carried out in the country in 2018. The minimum confirmed figure as og 05 March 2019 is therefore 93. For more information see Singapore Prison Service, “Harnessing Community Corrections to Prevent Re-Offending” (2019), https://www.sps.gov.sg/docs/default-source/stats-release/sps-annual-stats-release-for-2018_511kb.pdf Giada Girelli (2019) The Death Penalty for Drug Offences: Global Overview 2018. FIDH, “Iran/Death Penalty: A State terror policy, Special update for the 11th World Day Against the Death Penalty’ (10 October 2013) < https://www.fidh.org/en/region/asia/iran/death-penalty-in-iran-astate-terror-policy-14075 > accessed on 17 November 2018. European Saudi Organisation for Human Rights [ESOHR], “In 13 Years Saudi Arabia Deprived 504 Foreigners of the Right to Life through Beheading after Unfair Sentences, Violating International Law,” June 19, 2018, https://www.esohr.org/en/?p=1725. UN General Assembly, ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions’ A/70/304 (7 August 2015) para 76. European Saudi Organisation for Human Rights [ESOHR], “In 13 Years Saudi Arabia Deprived 504 Foreigners of the Right to Life through Beheading after Unfair Sentences, Violating International Law,” June 19, 2018, https://www.esohr.org/en/?p=1725.;European Saudi organisation for Human Rights [ESOHR], “2018 Death Penalty Report: Saudi Arabia’s False Promise Sabrina Toppa, Condemned Unheard: On Death Row Abroad, Dawn, Feb. 10, 2019: https://www.dawn.com/news/1462966 Ibid.