Conclusion: Clemency’s Place

The Conclusion, after briefly summarizing the respective country positions and restating the three-part hypothesis outlined in Chapter 7, considers what Southeast Asia’s ‘natural experiment’ on clemency means for policymakers, NGO staff, and legal practitioners working on death penalty cases in the region. The four national case studies, together with Chapter 7’s comparative hypothesis, suggest various practical means of boosting each Southeast Asian jurisdiction’s clemency rate within finalized capital cases. The Conclusion also considers what implications the comparative findings outlined in Chapter 7 have for the broader criminal justice literature in other parts of the world (particularly concerning the relationship between discretion exercised at different stages of a criminal case, the relationship between extrajudicial and judicial sanctions, the impact of democratization on criminal justice policies, and the influence of delay on criminal justice decision-making). Finally, the Conclusion suggests a future research agenda, including quantitative studies to ‘test’ the accuracy of the book’s three-part hypothesis in other parts of the retentionist world. The chapter ends with several predictions regarding the future of capital clemency in the four Southeast Asian jurisdictions under analysis (Thailand, Singapore, Malaysia, and Indonesia).

Federation of Malaysia

As with Chapters 3 and 4, the case study on Malaysia begins with a thorough description of the country’s death penalty laws and practice, and Malaysia’s publicly known clemency practice over the period under analysis (1991–2016). Thereafter, for both the Malaysian (Chapter 5) and Indonesian (Chapter 6) cases, the potential explanatory factors for clemency incidence are more complex than for Thailand and Singapore, given these two jurisdictions’ more moderate rates of capital clemency and fluctuating political policies on capital punishment over time. Available statistics suggest that Malaysia’s clemency rate is moderately high, at between 55 and 63 per cent of finalized capital cases. Malaysia is a federal state where pardons are granted by the hereditary rulers or appointed state governors in state-based cases, or by the Malaysian king (Yang di-Pertuan Agong) in federal and security cases, all on the advice of specially constituted Pardons Boards. Chapter 5 presents the following two explanations for Malaysia’s restrictions on death penalty clemency: prosecutorial/judicial discretion and detention without trial in capital cases, and the Federal Attorney-General’s constitutional role on the State and Federal Pardons Boards. As to why Malaysia’s clemency rate has not then fallen to the miniscule level seen in neighbouring Singapore (with both nations closely comparable, as they were once part of the same Federation of Malaya), Chapter 5 points to the relevant paperwork placed before each Pardons Board, the merciful role played by the Malay monarchy, and the impact of excessively long stays on death row before clemency decisions are reached.

Introduction: Six Paradigmatic Cases

The function of the Introduction is to set up the puzzle that the book will solve: why Thailand grants clemency to so many death row prisoners (95 per cent or more), why Singapore grants clemency to so few (0.6 per cent), and why Indonesia and Malaysia fall at points somewhere in between. The Introduction briefly describes the origins of this research project, states why it is necessary and important to compare death penalty clemency among these four jurisdictions, and ends with six short vignettes of paradigmatic cases symbolizing Southeast Asian clemency practice since 1991. These are the cases of Tong Chieng Mun in Singapore (an eighteen-year-old female rejected for clemency and executed in 1995); fishermen Leung Chi Fai, Ng Shun Wa, and Leung Kam Chuen in Thailand (each granted royal pardon in 2013); Kenneth Lee Fook Mun and Michael McAuliffe in Malaysia (providing examples of prisoners granted and denied clemency, respectively); and finally Asep Suryaman and Rodrigo Gularte in Indonesia (likewise providing examples of contrasting outcomes). These six vignettes are an important means of introducing the reader to the legal and political issues involved in death penalty clemency, through human interest stories representative of each state’s recent practice.

Republic of Singapore

Against the jurisdiction with the highest rate of capital clemency from 1991 to 2016 (Thailand), Chapter 4 juxtaposes the jurisdiction with the lowest (Singapore). Here, a mere 0.6 per cent of prisoners who exhausted their judicial appeals received death row commutations between 1991 and 2016. In Singapore’s case, again the chapter opens with a summary of relevant death penalty laws and practice, and a summary of the six cases where a capital prisoner has been granted clemency since Singaporean independence in 1965. The five theoretically informed hypotheses set out to explain the Singapore Cabinet’s overwhelming reluctance to grant capital clemency over many decades are as follows: Singapore’s rule of law ‘brand name’; the government’s public justifications for retaining the mandatory death penalty; strong deterrence in drug-trafficking cases; prosecutorial discretion supplanting executive discretion, and particular aspects of the Cabinet’s decision-making processes.

Sources and Methods

Chapter 1 details the comparative methodology employed throughout the book (comparing and contrasting national case studies), the challenges of comparing across national borders and legal systems, and project design choices such as the number of jurisdictions, time limits, and the substance of comparison. Moreover, given the semi-secretive criminal justice policies of the four jurisdictions under analysis (Thailand, Singapore, Malaysia, and Indonesia), Chapter 1 also outlines the data collection methods employed—including ‘elite’ interviews conducted during fieldwork in Southeast Asia, triangulated alongside NGO documents and media reports—and their various shortcomings. Among the significant methodological challenges addressed in Chapter 1 are how to conduct quantitative analysis (e.g. calculating clemency rates) given patchy statistical data, and deducing the true reasons for clemency and pardon grants when the executive decision maker is not required to publicly provide them, and rarely does so.

What Accounts for Southeast Asia’s Diverse Clemency Practice?

Chapter 7 draws together the findings of each of the preceding four case studies to discuss common patterns and ultimately develop a three-part hypothesis to explain clemency frequency in Southeast Asian death penalty cases over the period of study. The first limb of the hypothesis suggests that jurisdictions whose police, prosecutors, and judiciary are initially able to exercise a great deal of lenient discretion in converting potential capital charges into non-capital sentences (or into acquittals) are not the kind of systems where executive clemency thrives as a remedy against unfair or excessive punishment. The second theoretically supported explanation deriving from the four jurisdictions under analysis is that unelected decision makers are more likely to grant clemency than the elected leaders of democratic or semi-democratic governments. Where unelected final decision-makers such as the king of Thailand, Indonesian presidents Suharto and Habibie, or the Malay hereditary rulers grant clemency, often to bolster their own power and legitimacy before domestic constituents and the international audience, their mass grants of commutation or pardon can greatly increase the historical clemency rate vis-à-vis executions. The third explanatory factor posits that the longer prisoners remain on death row without being executed or removed for other reasons (e.g. escape, or death by natural causes), the more likely they are to be granted clemency. Independent of the political elite’s preferences for or ambivalence over capital punishment, inefficient judicial appeal and clemency petition systems that do not resolve a prisoner’s fate for many years on death row may actually create the conditions for clemency success.

Republic of Indonesia

Chapter 6’s case study on Indonesia, as with the previous three chapters, begins with a description of Indonesia’s death penalty laws, the country’s recent history of executions, and a list of publicly known clemency grants from 1991 to 2016. Thereafter, as with the previous chapter covering Malaysia, Chapter 6 lists several counterbalancing explanations for Indonesia’s ambivalent clemency practice from 1991 to 2016. Of the four jurisdictions under study, Indonesia’s clemency practice is easily the most irregular, seemingly defined more by ad hoc case-based factors and immediate political considerations than by long-term, consistent policies on particular crime and offender categories. As Chapter 6 documents in detail, the inconsistency of clemency over time and between cases is in itself the notable trend in Indonesia. Chapter 6 argues that the medium rate of clemency in Indonesia’s death penalty system is potentially explained by several theoretically informed factors: leniency exercised at earlier stages of capital cases’ progress through the criminal justice system; democratization and Indonesia’s ‘rule of law’ politics in the post-Suharto (1998–) Reformasi (reform) era; the collective pardon of the remaining 1965 ‘coup’ political prisoners by President Habibie in 1999; and finally, Indonesia’s uniquely languid clemency procedures before streamlining reforms in 2010. The first two factors serve to inhibit clemency, whereas the latter two lift Indonesia’s clemency rate to 26–33 per cent, at the very minimum.

Kingdom of Thailand

Chapter 3, the first of the book’s four case study chapters, provides an outline of the death penalty laws and practice of Thailand during the period 1991–2016, describes Thailand’s clemency laws and accumulated practice in death penalty cases over the same period, and most importantly provides several theoretically supported hypotheses potentially explaining Thailand’s extremely ‘high’ clemency rate of 95 per cent or more. This structure is reprised in each of the four case study chapters, leading to a comparative analysis of the respective explanatory factors in Chapter 7. In Thailand’s case, suggested factors explaining the overwhelming likelihood of capital prisoners to obtaining capital clemency over the aforementioned twenty-six-year period are the following: Thailand’s Buddhist monarchy, headed from 1946 until October 2016 by King Bhumibol Adulyadej; the drawn-out royal pardon process leading to excessively long stays on death row; the practice of arbitrary and extrajudicial executions against criminal suspects over the years; and the special treatment enjoyed by foreign prisoners to safeguard Thailand’s international relations.

Four Models of Clemency

Chapter 2 provides the theoretical framework for a comparative study of clemency in death penalty cases. It begins by clarifying the terminology used throughout the book, including the local terms used in Southeast Asian legal systems for executive ‘clemency’. Then, drawing in particular from the work of Douglas Hay et al (1975), Leslie Sebba (1977a; 1977b); Kathleen Dean Moore (1989), Daniel Kobil (1991; 2003; 2007), Elizabeth Rapaport (1998–2000; 2001), and Austin Sarat (2005; 2008), Chapter 2 suggests four models of clemency in death penalty cases, based upon the previous academic literature: (1) ‘mercy from the sovereign’ granted solely for the ruler’s benefit; (2) retributivist clemency; (3) redemptive clemency; and (4) clemency for political benefit or utilitarian reasons. Finally, Chapter 2 also summarizes the results of the few multi-jurisdictional studies on capital clemency conducted in the past (e.g. Turrell 2000; Pascoe 2017b; Sebba 1977b; Baumgartner and Morris 2001; The Parliamentary Monitoring Group 2004; Dascalu 2012; Novak 2015; Strange 1996; Tait 2000–1), together with factors that the theoretical literature suggests may contribute to clemency frequency or scarcity. In summary, the theoretical and empirical literature points to the following potential determinants of death penalty clemency: political regime, separation of powers, clemency decision-making structure, structural opportunities for leniency at earlier phases, procedural idiosyncrasies in the criminal justice system, time spent on death row, and predominant religion.