Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases

Abstract

All five contemporary practitioners of the death penalty in the Association of Southeast Asian Nations (ASEAN)—Indonesia, Malaysia, Thailand, Singapore, and Vietnam—have performed executions on a regular basis over the past few decades. Amnesty International currently classifies each of these nations as death penalty ‘retentionists’. However, notwithstanding a common willingness to execute, the number of death sentences passed by courts that are reduced to a term of imprisonment, or where the prisoner is released from custody altogether, through grants of clemency by the executive branch of government varies remarkably among these neighbouring political allies. This book uncovers the patterns which explain why some countries in the region award commutations and pardons far more often than do others in death penalty cases. Over the period under analysis, from 1991 to 2016, the regional outliers were Thailand (with more than 95 per cent of condemned prisoners receiving clemency after exhausting judicial appeals) and Singapore (with less than 1 per cent of condemned prisoners receiving clemency). Malaysia, Indonesia, and Vietnam fall at various points in between these two extremes. This is the first academic study anywhere in the world to compare executive clemency across national borders using empirical methodology, the latter being a systematic collection of clemency data in multiple jurisdictions using archival and ‘elite’ interview sources. Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases will prove an authoritative resource for legal practitioners, criminal justice policymakers, scholars, and activists throughout the ASEAN region and around the world.

Executive Clemency During the Coronavirus Pandemic: A Global Analysis of Law and Practice

“…Some jurisdictions have carved out exceptions for certain types of prisoners, most commonly violent, drug and sex offenders. Again, clemency restrictions and criteria of this nature were not unusual before the pandemic, both within legislation and constitutional provisions, as with actual practice (Pascoe, 2019b;Novak, 2016c;Pascoe & Novak, 2020b;Laird, 2017). Nonetheless, whether arising after Covid-19 or not, blanket clemency exceptions predicated upon crime categories are problematic because they may well be driven more by penal populism or intolerance of political dissent rather than by the risk of reoffending.…”

“…Clemency is an extraordinary remedy by which a political executive can modify or cancel a criminal sentence (Novak, 2016a). Although clemency is residual in many developed legal systems, replaced by bureaucratic processes including parole, remission or early release, its use in the developing world and in autocratic systems is still pronounced (Novak, 2016b;Pascoe & Novak, 2020a;Pascoe, 2019b). In the United Kingdom, the Queen's prerogative of mercy at common law has become strictly limited by convention.…”

“…2 In some common law countries, the prerogative of mercy has opened to judicial review in some circumstances. See Queen v Secretary of State for the Home Department [Ex Parte Bentley] [1993] EWHC Admin 2 (7 July 1993); Lewis v Attorney General of Jamaica 3 Clemency may also be granted to boost the popularity or perceived religiosity of a national leader, but this paradigm is less relevant to coronavirus clemency (Pascoe, 2019b). 4 In the near future, we may even see pardons or commutations as a utilitarian 'reward' for prisoners agreeing to be vaccinated against Covid-19, echoing a now-discredited early twentieth century smallpox 'variolation' trial (Dudgeon, 1980).…”

“…The most common profile for prisoners who have so far benefited from mass pardons or commutations are those who are aged or in poor health, women (particularly women caring for young children), those awaiting trial, those near the end of their sentences, or those serving short sentences (Human Rights Watch, 2020). 7 In this sense, coronavirus clemency's criteria does not differ greatly from criteria typically employed outside of the pandemic (Pascoe 2019b;Pascoe & Novak 2020a). It is merely that Covid-19 has made such decisions more urgent.…”

Rethinking the Relationship between Women, Crime and Economic Factors: The Case-Study of Women Sentenced to Death for Drug Trafficking in Malaysia

“…The contemporary use of the death penalty is mainly restricted to the crimes of murder, drug trafficking, and occasionally fire-arms related offences (Amnesty International 2019, p. 13). If charged with a capital offence at the Magistrates Court, the case will be sent to the High Court and from there the decision may be appealed to the Court of Appeal, followed by the Federal Court; finally, an application for pardon may be made to the ruler of the state or the King (Pascoe 2019). The death penalty for drug trafficking-the focus of this paper-is governed by the Dangerous Drugs Act of 1952, a law that was introduced by the British colonial government, but, pertinently, it did not carry the death sentence until 1975 (after independence), and it only became the mandatory sentence in 1983 as the government instituted its anti-drugs campaign (Harring 1991).…”