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

Daniel Pascoe

Print publication date: 2019

Print ISBN-13: 9780198809715

Published to Oxford Scholarship Online: April 2019

DOI: 10.1093/oso/9780198809715.001.0001

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Introduction: Six Paradigmatic Cases

Introduction: Six Paradigmatic Cases

Chapter:
(p.1) Introduction: Six Paradigmatic Cases
Source:
Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases
Author(s):

Daniel Pascoe

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198809715.003.0001

Abstract and Keywords

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.

Keywords:   Southeast Asia, ASEAN, death penalty, clemency, pardon, commutation, human interest, prerogative, comparative case studies

If the crossroads of legal traditions are nodal points where comparatists are to be found, then one ought to be tripping over them in South East Asia

Andrew Harding, focusing comparative scholarly attention on an ‘ideal laboratory’1

This is a book about hope in the tropics. Far more so than is commonly believed, death row prisoners in Southeast Asia who have exhausted all their judicial appeals still cling to a hope of avoiding execution from the most unlikely of sources: the political executive. This book attempts to explain the factors underlying death row prisoners’ hopes of commutation or pardon from clemency arbiters as varied as kings, sultans, presidents, cabinets, and boards. Although some decision makers have ultimately proven more generous than others, modern Southeast Asia provides a cogent demonstration of the fact that the executive clemency power, and therefore hope for death row prisoners, will continue to exist as long as the death penalty remains as a judicial punishment in some countries of the world.2 In other words, commutation goes hand in hand with condemnation.

I begin with the regional context. Five countries within 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. At the beginning of 2017, Amnesty International classified each of these five nations as death penalty ‘retentionists’ because they had conducted executions over the previous ten-year period.3 However, (p.2) notwithstanding this 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 government4 varies remarkably among these neighbouring jurisdictions. In Thailand, during the twenty-six-year period under analysis from 1991 to 2016,5 more than 95 per cent of death row prisoners who exhausted judicial remedies received clemency (p.3) via royal pardon from King Bhumibol Adulyadej or his successor Maha Vajiralongkorn, whereas over the same period, fewer than 1 per cent of capital prisoners with finalized cases received clemency from the various presidents of Singapore. In Malaysia and Indonesia, the clemency ‘rates’ in capital cases from 1991 to 2016 stand in between these two extremes. In these two nations, approximately 55–63 per cent and (at a minimum) 26–33 per cent of death row prisoners’ sentences were mitigated by the executive, respectively (depending on which sources are to be believed and the precise methodology used to count).6 Vietnam’s clemency rate, with fewer data points available than the other four jurisdictions, is likely to have fallen somewhere between 5 per cent and 50 per cent of finalized death penalty cases since data first became available in the mid-1990s.7

The discrepancy in capital clemency incidences among Southeast Asian jurisdictions is both extraordinary and puzzling. Accordingly, within this book, I analyse the differences in clemency practice among the Southeast Asian jurisdictions that continue to employ the death penalty as a form of criminal punishment (Thailand, Singapore, Malaysia, and Indonesia, minus (p.4) Vietnam),8 in a search for patterns which explain why some countries in the region make use of capital clemency far more often than do others.

Southeast Asia is an excellent place to begin the long overdue conversation on comparative capital clemency practices in empirical perspective. Southeast Asia contains just under 10 per cent of the world’s population, is one of the few world regions (alongside East Asia, the Middle East, and the Caribbean) where it is still possible to engage in a comparison of neighbouring countries’ death penalty regimes, and, perhaps most significantly, functions as a regional barometer of death penalty trends worldwide. Although, over the past few years, comparative death penalty scholars have begun to give Southeast Asia a greater share of attention,9 their focus generally remains either on a comparison between retentionist and abolitionist states or on substantive criminal laws and sentencing practice, rather than the quasi-legal, quasi-political decision to grant or refuse executive clemency.

Moving well beyond Amnesty International’s simplistic observation in 1979 that ‘although, in many countries, there is provision for act of presidential clemency, nowhere in Asia has the ready availability of such clemency been marked’,10 in this book I employ empirical analysis to examine the intricacies of clemency practice in Indonesia, Malaysia, Singapore, and Thailand, informed by relevant theory and previous comparative studies on (p.5) clemency—particularly the work undertaken by Douglas Hay,11 Leslie Sebba,12 Kathleen Dean Moore,13 Elizabeth Rapaport,14 Daniel Kobil,15 Michael Heise,16 Austin Sarat,17 and Andrew Novak.18 From 1991 to 2016, the situation on the ground in actively retentionist Southeast Asia was not nearly as dire as had been suggested by Amnesty International back in 1979, with capital clemency having been granted at different rates and for a variety of justifications. Condemned prisoners’ hopes of winning a permanent reprieve from the executive rested not only on their individual case characteristics, but also on the jurisdiction in which they found themselves and the political administration then in power.

The findings presented here complement the scarce bodies of literature on comparative clemency in capital cases (globally), and the death penalty in Southeast Asia (locally). While extrapolating the findings of a study of only four retentionist jurisdictions to other parts of the world must be undertaken with caution, in the future, the hypothesis developed here may be tested elsewhere. No scholar has yet formulated a coherent, overarching theory as to why clemency is granted at vastly different rates and in different circumstances across the retentionist world, despite these differences being plain to see.19 In fact, this is the first research study anywhere in the world to compare clemency across national borders using empirical methodology.

Why might the comparative and empirical literature on clemency remain so scarce? The answer is in the data. Clemency deliberations by executive decision makers, in whichever jurisdiction they occur, are usually performed in secret, with public justification for the exercise of clemency rarely given.20 Accordingly, possible reasons behind death sentence commutations are rarely analysed in any systematic way.21 However, this does not make (p.6) such research any less urgent. As Kobil observes, clemency and pardons now demand academic explanation to an even greater degree:

like the monarchical power from which it derives, clemency is shrouded in mystery and often fraught with arbitrariness at a time when other aspects of [criminal justice systems] are becoming more open and fair.22

Despite limited information on how clemency decisions are made and the factors that contribute to their frequency or scarcity, clemency deliberations usually determine whether or not a prisoner sentenced to death ultimately lives or dies, and hence are of vital importance in a criminal justice system that retains capital punishment.23 Although the frequency of clemency grants appears to have declined in a range of jurisdictions throughout the course of the twentieth century,24 clemency is typically still the final avenue of appeal for a condemned prisoner, recourse to which is mandated by the International Covenant on Civil and Political Rights in Article 6(4),25 by the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,26 and perhaps even by customary international law, given its widespread availability in retentionist states.27 Clemency is a condemned prisoner’s indispensable last chance for life.

The Six Cases

As noted above, Southeast Asia’s retentionist jurisdictions are striking in the diversity of their clemency practice. Thailand grants clemency extremely liberally in death penalty cases, Singapore extremely frugally; Indonesia and Malaysia fall somewhere in between, when considering data from the period 1991 to 2016. While those who make decisions on executive clemency are not (p.7) obliged to follow precedent when making political decisions on petitions, over many hundreds of cases and years of practice, discernible patterns begin to emerge in most jurisdictions. The following are six paradigmatic cases whose features echo each of the four Southeast Asian nations’ clemency practices as a whole. I introduce the volume with these six short vignettes to provide a human face to Southeast Asia’s recent capital clemency story, given that the focus in Chapters 3–7 tends to be on clemency in an aggregate form.

The following examples juxtapose a serious Thai drug-trafficking case, in which the three defendants nonetheless escaped capital punishment via royal pardon, with a Singaporean case where the defendant, also a convicted drug trafficker, exhibited compelling mitigating features and yet clemency was denied. For Malaysia and Indonesia, the contrasting tales of clemency rejection and success described in what follows begin to show why those two jurisdictions fall somewhere in between Singapore’s extremely low rate of clemency and Thailand’s extremely high rate.28 For certain categories of prisoners in Malaysia and Indonesia, clemency has been an expected remedy in more cases than not, whereas for other convicts, clemency is a forlorn hope that exists as a right only on paper. Singapore and Thailand’s clemency practice encapsulates these two extremes, demonstrating significant regional disagreement over the political and legal functions that executive discretion should serve in capital cases.

1. Leung Chi Fai, Ng Shun Wa, and Leung Kam Chuen—Thailand

Leung Chi Fai, Ng Shun Wa, and Leung Kam Chuen (Image 1) were three fishermen from Hong Kong who were arrested in 2005 and sentenced to death for drug possession and trafficking in Thailand, but were eventually granted clemency by King Bhumibol Adulyadej via collective royal pardon in August 2012.29 At the time, the suspects’ (p.8) arrests resulted in the Thai police’s largest capture of illicit heroin in 10–15 years—a total of 546 kilograms with a street value of USD 7.1 million30—and the largest ever drugs seizure involving foreign suspects.31 Moreover, there was some evidence that the three men were repeat offenders, having smuggled drugs between Hong Kong and Thailand on previous occasions.32 At the time of their arrest, the suspects were alleged to be planning to traffic the drugs through Thailand and on to Hong Kong, the United States, and Russia.33

Introduction: Six Paradigmatic Cases

Image 1 Leung Chi Fai (second from left), Ng Shun Wa (far right), and Leung Kan Chuen (middle) following their arrest

Source: Sing Pao Daily News, 22 March 2005 (reprinted with permission)

The three fishermen’s case provides a salient example of the role played by collective royal pardons in removing prisoners from Thailand’s death row, even for cases that are among the most serious. Leung, Ng, and Leung, who held overseas British nationality as pre-1997 Hong Kong residents, had concurrently submitted petitions to the Thai King for individual royal pardon, assisted (p.9) by pro bono lawyers from Hong Kong and by London-based non-governmental organization (NGO) Reprieve.34 The death sentences imposed on foreigners in Thailand are usually commuted to lesser punishments through individual royal pardons, if backed by senior figures from within their own governments.35 However, it was through a periodic collective royal pardon celebrating Queen Sirikit’s eightieth birthday and Crown Prince Maha Vajiralongkorn’s sixtieth birthday that the petitioners in this case were spared execution. All fifty-seven prisoners on Thailand’s death row had their sentences commuted to lesser punishments following the decree,36 despite drug trafficking being a category of crimes for which collective royal pardons are sometimes prohibited.37 Collective royal pardons, as a periodic method of reducing or clearing death row to celebrate important national events, constitute the most common form of leniency in Thai death penalty cases,38 reflecting a long tradition of personal benevolence and Buddhist piety among Thai monarchs.39 Leung, Ng, and Leung can now hope that, pursuant to a prisoner transfer agreement between Hong Kong and Thailand, they will be moved to a prison in Hong Kong to be closer to their families.40

2. Tong Chieng Mun—Singapore

Tong Chieng Mun was a young woman from Hong Kong who was executed for drug trafficking in 1995 in Singapore. At the time of her arrest at Singapore’s Changi Airport in 1988, she was only several months past her eighteenth birthday.41 Other than her youth, further potentially attenuating circumstances in Tong’s case included the sentence of imprisonment imposed on her seventeen-year-old accomplice; Tong’s status as a Hong Kong resident rather (p.10) than being Singaporean; her sole intention to transit heroin from Thailand to Brussels, via Singapore’s Changi Airport; and her difficult upbringing. Nevertheless, the case’s determinative factor was the high street value (more than SD 2 million) of the heroin Tong was caught carrying at Changi.42

Tong’s case therefore provides an example of several mitigating circumstances that Singapore’s High Court, obliged since 1975 to apply the mandatory death penalty upon conviction for serious drug-trafficking offences, could not take into account in sentencing.43 Moreover, despite the High Court’s hands being tied at the sentencing phase, the Singaporean president (on the advice of the Cabinet) later rejected clemency and Tong was hanged. If clemency was rejected in a case such as Tong’s, it is easy to see why one prominent Singaporean criminal lawyer described applying for clemency as invariably ‘a waste of time’.44 Only six petitions have been granted, from approximately five hundred capital cases, since the mandatory death penalty for drug trafficking was introduced by the Misuse of Drugs (Amendment) Act 1975.45

3. Kenneth Lee Fook Mun—Malaysia

Malaysia’s king, the Yang di-Pertuan Agong, granted clemency to fifty-nine-year-old Kenneth Lee Fook Mun in 2008 (Image 2). Lee shot dead a female accountant through her car window in a road rage incident46 and was sentenced to death by the Malaysian Court of Appeal in 2005, after prosecutors successfully appealed the initial eight-year prison sentence imposed at trial.47 As the grandson of Malaysia’s first Finance Minister, Tun Henry S Lee, and the nephew of a former deputy minister,48 the defendant is strongly suspected to have benefited from his family ties to the then ruling political party, the United Malays National Organisation (UMNO).49 (p.11) However, Lee may also have received clemency after settling a civil suit brought by the family of his victim, Lee Good Yew, for RM 550,000,50 and because there was some evidence of hypoglycaemia or intoxication at the time of the killing, albeit not enough to establish a full defence.51 Lee’s case is indicative of clemency being granted to Malaysian defendants with political connections or previous service to the country,52 as well as where compelling mitigating circumstances first appear at trial53—factors discussed in further detail in Chapter 5. Clemency as political reward, together with clemency for foreign nationals and for retributive and rehabilitative purposes, ensures that Malaysia’s clemency totals far (p.12) outstrip those of neighbouring Singapore, despite the close similarities in the two neighbours’ historical and legal circumstances.

Introduction: Six Paradigmatic Cases

Image 2 Kenneth Lee Fook Mun (left)

Source: The Star Malaysia, 1 July 2003 (reprinted with permission)

4. Michael McAuliffe—Malaysia

Michael McAuliffe was a thirty-nine-year-old Australian citizen who was denied clemency by the Penang Pardons Board and was executed in Selangor’s Kajang Prison in June 1993. McAuliffe (Image 3) was sentenced to the mandatory death penalty for attempting to traffic 141 grams of pure heroin through Penang International Airport.54 His case demonstrates that during the 1980s and early 1990s, under the stewardship of Prime Minister Mohamad Mahathir, Malaysia’s ‘one law for all’ drugs policy spared no prisoner on the grounds of nationality.55 If McAuliffe had been arrested for trafficking drugs in neighbouring Thailand, he would likely have not been executed, (p.13) given that his clemency appeal was supported by Australian Prime Minister Paul Keating and Foreign Minister Gareth Evans.56 However, before the notable rise in executions in the mid-1990s in neighbouring Singapore and a softening of its own position,57 Malaysia could lay claim to the ASEAN region’s most punitive drug laws, which included the mandatory death penalty for trafficking, coercive drug rehabilitation schemes for addicts, administrative detention without trial,58 and—of most relevance here—a near blanket prohibition on clemency in drug-trafficking cases,59 irrespective of any impact on international relations or considerations of a prisoner’s rehabilitation or mitigating characteristics.

Introduction: Six Paradigmatic Cases

Image 3 Michael McAuliffe (left)

Source: News Ltd, 23 January 2015 (reprinted with permission)

5. Asep Suryaman—Indonesia

Professor Dr Asep Suryaman was a PKI (Partai Komunis Indonesia—Indonesian Communist Party) official who, while still under a death sentence, was granted a presidential pardon and released from Jakarta’s Cipinang Prison in March 1999 (Image 4).60 He was first arrested in 1971 and then sentenced to death for subversion in the Central Jakarta District Court in August 1975,61 accused of ‘building contacts for the PKI within the military’.62 Suryaman was part of the PKI’s intelligence agency and, between 1965 and his arrest in 1971, was a member of the party’s Central Java provincial committee.63 During Suryaman’s long period of detention, he was told at least twice that he would be executed, only for those plans to be cancelled. His case became a prominent cause for international human rights NGOs as part of their broader effort to pressure the Suharto government over its treatment of political prisoners.64

Introduction: Six Paradigmatic Cases

Image 4 Asep Suryaman (far left, white shirt) being released from Cipinang Prison in March 1999, alongside fellow political prisoners. Standing three to Suryaman’s left is Colonel Abdul Latief (white shirt), a major figure in the coup attempt of 1965

Source: Tempo.co (reprinted with permission)

Suryaman was one of several surviving PKI conspirators under sentence of death who were released from prison as part of (p.14) Indonesia’s democratization after the fall of President Suharto in May 1998. In addition to the need to distance his government from that of the military autocrat Suharto through granting the pardons, Indonesia’s new President BJ Habibie also took into account the men’s old age, their failing health, their rehabilitation within prison, and finally their waning political threat to the Indonesian state.65 Notably, one year before Suryaman was released, he was suffering from severe health problems, with fellow prisoners requesting that prison authorities transfer him to a prison hospital.66

Importantly, the prisoners who were released alongside Suryaman (up to ten altogether, although not all may have still been under sentence of death)67 contribute significantly to the list of Indonesian capital clemency recipients since 1991. Not only do (p.15) the repercussions of the alleged PKI coup on the night of 30 August to 1 September 1965 continue to shape modern Indonesian politics and society,68 but when associated capital subversion cases are considered in their aggregate, the events of 1965 also loom large over Indonesian clemency practice in the period under study. Asep Suryaman’s case, where the accused was retrospectively sentenced to death under the 1969 Subversion Law and made to wait more than two decades for his death sentence to be lifted,69 is symptomatic of the political function played by the post-coup trials and the tardiness of the Indonesian criminal justice system under Suharto. However, much has changed since Indonesia’s democratization from 1998 onwards, as the sixth and final case indicates.

6. Rodrigo Gularte—Indonesia

Rodrigo Gularte was a Brazilian citizen arrested for trafficking in six kilograms of cocaine through Jakarta’s Soekarno-Hatta (p.16) airport in 2004. In the nearby Tangerang District Court, Gularte was sentenced to death, with the judicial panel holding that he was part of an international drug-trafficking syndicate aiming to distribute drugs within Indonesia. After Gularte’s appeals to the Banten High Court and the Indonesian Supreme Court failed, he applied for presidential clemency in July 2012.70 Gularte’s clemency appeal was rejected by Indonesian President Joko Widodo in February 2015,71 despite the fact that he had expressed significant remorse in his petition72 and was suffering from cerebral dysrhythmia, paranoid schizophrenia, and bipolar disorder; his legal team had obtained ample evidence to prove his medical condition.73 Gularte was subsequently executed in April 2015 (Image 5).74 His case provides a stark example of the policies of Indonesia’s democratically elected presidents relating to capital drug-trafficking crimes since 1999—in particular President Widodo, who has promised never to grant clemency in a drug-trafficking case, irrespective of the attenuating circumstances.75

Introduction: Six Paradigmatic Cases

Image 5 The funeral of Rodrigo Gularte, Jakarta, 29 April 2015

Source: Anadolu Agency/Getty Images (reprinted with permission)

Although, according to available figures, clemency in capital murder and PKI subversion cases has proven reasonably common in post-1991 Indonesia,76 Indonesia’s post-1991 clemency rate remains at a ‘medium’ level largely due to the consistent execution of drug traffickers in the post-1998 democratic era. This represents a substantial change in policy, as only one drug trafficker was executed during President Suharto’s reign,77 despite capital drug offences first being introduced in 1976.78 Gularte’s case, as a foreigner from an openly abolitionist nation,79 suffering from severe mental health problems which would normally require admission to a psychiatric treatment facility,80 (p.17) demonstrates the inflexibility of presidential clemency policy in drug-trafficking cases in post-Suharto Indonesia. As Gunawan has argued, Gularte’s case is probably the clearest Indonesian example where not only was the defendant sentenced to death, but so was ‘common sense’ itself.81

Chapter Structure of the Book

This book is divided into nine chapters, four of which directly relate to the Southeast Asian jurisdictions under analysis: Thailand, Singapore, Malaysia, and Indonesia. However, before elaborating on the respective nations’ death penalty and clemency policies, I first summarize the relevant academic literature that informs the study, and outline the precise methodology employed in collecting data on an often secretive and politically sensitive topic in retentionist states.

The book’s later findings (contained in the national case studies in Chapters 3–6, as well as the broader discussion in Chapter 7 and the Conclusion) are guided and informed by an amalgam of previous research on: (a) comparative criminal justice methodology; (b) the role of data triangulation; (c) clemency in death penalty cases, both from a justificatory and an empirical perspective; and (d) specific regional material on the death penalty itself. Accordingly, Chapters 1 and 2 set the context within which I later present data on capital clemency in Southeast Asia obtained through archival and interview-based research.

Each of the four national case studies proceeds as an examination of the clemency laws and procedures, and the death penalty and capital clemency practice, within the relevant jurisdiction over the period 1991–2016, concluding with a list of potentially influential factors shaping clemency incidence in that jurisdiction. I begin with Thailand, with its extremely high clemency rate in capital cases, and move to diametrically opposed Singapore: by far the most frugal capital clemency jurisdiction in Southeast Asia. For these two nations, with their respective clemency rates falling at either end of the 0–100 per cent spectrum, deriving potential (p.18) explanatory factors is far simpler than is the case for Malaysia and Indonesia, where clemency practice is more nuanced. For Malaysia and Indonesia, I describe contradictory factors either enhancing or suppressing capital clemency, given the evident longitudinal variation in clemency practice and the differing interests of contemporary criminal justice actors in those jurisdictions. The Appendix at the end of the book provides the numerical data upon which analysis of each country’s practice is based.

Chapter 7 and the Conclusion to this volume draw together comparative trends across the four case studies to develop an overarching hypothesis explaining clemency incidence in retentionist Southeast Asia. These chapters also comment on the implications of this hypothesis for practitioners, policymakers, and future scholarship. In brief, I suggest that in the four nations under study, capital clemency incidence from 1991 to 2016 has been largely determined by three structural and political factors:

  1. 1. The extent to which clemency operates as a form of lenient discretion, given the relative ‘attrition rate’ of capital cases at earlier stages of the criminal justice system;

  2. 2. The extent to which granting clemency enhances or detracts from political power for the final decision maker;

  3. 3. The length of time prisoners spend on death row, whether due to negligence by state officials or procedural obstacles to execution.

In other words, clemency in retentionist Southeast Asia symbolizes far more than official ambivalence over capital punishment as a criminal sentence, as its presence (or absence) can coincide with both high and low rates of execution. Instead, certain structural and political factors largely explain its prominence within one of the world’s few remaining retentionist blocs.

Notes:

(2) Kobil (1992–3) 214–15; Sebba (1977a) 234–6.

(3) Amnesty International AI Index ACT 50/5740/2017, 43. Of the remaining five members of ASEAN, Brunei, Laos, and Myanmar are classified as abolitionist de facto, not having conducted an execution for more than ten years and having a settled policy not to execute, whereas the Philippines and Cambodia abolished capital punishment for all crimes in 2006 (for a second time) and in 1989, respectively (Amnesty International AI Index ACT 50/5740/2017, 42–3; Johnson and Zimring (2009) 16, 103–4). ASEAN presently denotes as ‘observers’ two states: Papua New Guinea and Timor-Leste. Papua New Guinea is classified as abolitionist de facto, albeit with twelve persons on death row in July 2017 (Cornell Center on the Death Penalty Worldwide, ‘Papua New Guinea’), whereas Timor-Leste has been abolitionist for all crimes since its independence in 2002 (Hood and Hoyle (2015) 100).

(4) For the purposes of this book, I use the term ‘clemency’ to refer to the executive branch of government replacing a sentence of death with a lesser punishment, usually a term of imprisonment. This type of clemency is sometimes termed a ‘commutation’ of sentence. I also define clemency as where the executive branch abrogates punishment altogether through ‘pardon’ (Novak (2016) 819). For more detailed discussion on terminology, see Chapter 2.

(5) The book’s temporal scope is limited to the period 1991–2016 inclusive. The doctoral dissertation on which this study is based covered the period 1975–2009 for Thai, Singaporean, Malaysian, and Indonesian death penalty practice. A new end date of 2016 takes account of more recent cases and data, particularly the changing political context with the election of Indonesian President Joko Widodo (a strong supporter of the death penalty) in October 2014 and Thailand’s military coup of the same year (thereby reducing the possibility of death penalty abolition in the short term). The extended temporal scope also serves to include Singapore’s unprecedented 2012 curtailment of the mandatory death penalty for certain categories of drug trafficking and murder cases, via the Penal Code (Amendment) Act 2012 (Singapore) and the Misuse of Drugs (Amendment) Act 2012 (Singapore).

The study’s start date is set at the beginning of 1991 due to the higher relevance of more recent cases and to even out data access across time. More specifically, across Southeast Asia, by the late 1980s the mentality of ‘emergency’ borne of real or perceived Communist Party threats from the 1960s onwards began to wane or disappear altogether. Instead, during the 1990s a majority of death sentences were passed in the region for drug trafficking and murder, rather than for subversion or security/firearms offences, much like the situation today (‘121 Convicts in “Death Row” (2003); Amnesty International AI Index ASA 36/001/2004, 6; International Federation for Human Rights (2005) 9, 18; Amnesty International AI Index ASA 39/02/99; McRae (2012) 6).

Moreover, attempting to cover the entire period 1975–2016 would also lead to a shortage and consequent imbalance of information on clemency cases from the 1970s and 1980s, as compared with the much greater detail available from the 1990s and 2000s. While one reason for this disparity in coverage is the lack of widespread interest in the death penalty as an international human rights issue until the early 1990s (Hood and Hoyle (2008) 18–20; Banchoff (2011) 304), the contrast becomes even more pronounced once the influence of the internet and the digitization of media reporting is taken into account, together with the more recent recollections of potential interview subjects (see Chapter 1).

(6) See Chapter 1.

(7) See Pascoe (2016a) 174–5. I have previously estimated, based on severely limited data from 1997 to 2008, that 6–23 per cent of finalized capital cases received clemency in Vietnam (Pascoe (2014) 5, 16). A recently released but unverified government report suggests that, beginning with Vietnam’s change to lethal injection as a method of execution in July 2011, 179 commutations were passed in death penalty cases and 429 prisoners were executed through to July 2016 (The (2017); Vietnam Ministry of Public Security (2017) 10). This represents a clemency rate of approximately 29 per cent, comparable with Indonesia’s minimum clemency rate from 1991 to 2016.

(8) Vietnam is excluded as a comparative case study because: (a) its socialist political system makes it more amenable to comparison with similarly situated states (particularly China) rather than states to the right of the political spectrum (Harding (2002) 49; Johnson and Zimring (2009) 132, 382–6; Buhmann (2001) 60, 410–11); and (b) unlike the other four nations under study, Vietnam’s death penalty data is an official state secret, and has been since 2004 (Johnson and Zimring (2009) 388 n9, 389). For reasons of fieldwork safety and access to data, I was not able to conduct interview-based fieldwork in Vietnam, unlike in Singapore, Kuala Lumpur, Bangkok, and Jakarta from 2011 to 2013 (see Chapter 1). For recent academic research on the death penalty in Vietnam in English, see Lindsey and Nicholson (2016), Pascoe (2016a), Thayer (2015), Luong (2014), Nguyen (2014), Giao (2013), Johnson and Zimring (2009), Nicholson and Truong (2008), Nicholson (2008), and Sidel (1998).

(10) Amnesty International (1979) 67. See also Anti-Death Penalty Asia Network (2011) 32, for a more recent statement asserting the rarity of capital clemency in the Asia-Pacific region.

(11) Hay et al (2006).

(12) Sebba (1977a; 1977b).

(14) Rapaport (1998–2000; 2001).

(15) Kobil (1991; 2003; 2007).

(16) Heise (2003; 2013; 2015).

(17) Sarat (2005; 2008).

(18) Novak (2015; 2016).

(20) Sebba (1977a) 229; Kobil (1991) 608–9.

(22) Kobil (1992–3) 202.

(23) Burnett (2002) 16; Scott (1952) 95; Kobil (1992–3) 214–15.

(24) Strange (1996) 14–15; Novak (2015) 2, 5, 166; Sebba (1977a) 234.

(25) Of the four jurisdictions under study, Indonesia (as of 23 February 2006) and Thailand (as of 29 October 1996) are state parties to the International Covenant on Civil and Political Rights, whereas Singapore and Malaysia are neither parties nor signatories.

(26) UN Economic and Social Council Resolution 1984/50, art 7.

(27) Fermin Ramirez v Guatemala (Inter-American Court of Human Rights, 20 June 2005), [109]; Amnesty International AI Index 01/023/2011, 31.

(28) On this classification see Chapter 1.

(29) Reprieve (2012a) 6; Reprieve (2012b); Bellivier and Lahidji (2013). Kong Chun Wah (the ship’s captain) and Lee Foon were the other accomplices arrested who were not sentenced to death and later pardoned, possibly because they pleaded guilty at first instance (‘Captain the Only One to Admit to Drug Trafficking’ (2005)).

(30) Tang (2005); ‘Captain the Only One to Admit to Drug Trafficking’ (2005).

(33) ‘Captain the Only One to Admit to Drug Trafficking’ (2005).

(34) Reprieve (2012a) 6; Reprieve (2012b).

(35) Hands Off Cain, ‘Thailand’ (2001); interview with Thai criminal defence lawyer #2. See also Friedman (2012).

(36) Bellivier and Lahidji (2013); ‘10,000 Inmates Released under Royal Pardon’ (2012); ‘Current Statistics of Prisoners Condemned to Death’ (2012).

(37) Union for Civil Liberty (2011) 36; Amnesty International AI Index ACT 50/001/2002, 11.

(38) See Appendix (Thailand).

(43) Misuse of Drugs Act 2001 (Singapore), s 5 and sch 2.

(45) Chan (2016) 200. Execution data sourced from Chan (2016) 183; Amnesty International (1979) 98; Amnesty International Annual Report (1978) 187; Cornell Center on the Death Penalty Worldwide, ‘Singapore’ (2017).

(46) Cheah (2008).

(49) Ting (2008).

(51) ‘Kenneth Lee Sentenced to Death’ (2005); interview with Malaysian prosecutor; interview with Malaysian criminal defence lawyer.

(52) Liu (2003); ‘Will King Go against UMNO? Agong Has Last Word in Anwar’s Pardon—Lawyers’ (2015).

(57) See Appendix (Malaysia, Singapore); Donoghue (2013) 236, 239.

(61) Amnesty International AI Index ASA 21/27/87, 11.

(62) Human Rights Watch and Amnesty International (1998).

(64) Lev (2011) 348.

(66) Amnesty International AI Index ASA 21/01/98.

(67) See Appendix (Indonesia).

(70) Gunawan (2016) 37–40.

(71) Presidential Decree 5/G 2015 (Indonesia).

(72) Gunawan (2016) 39–40.

(73) Choudhury (2015–16) 31; Gunawan (2016) 41–3. The Indonesian Attorney General sought a second opinion supporting his own view of Gularte’s mental condition, which was not divulged to Gularte’s lawyers (Choudhury (2015–16) 32).

(74) Safi (2015).

(75) ‘Bali Nine: Indonesian President Rules Out Clemency for Inmates on Death Row’ (2014); Parlina et al (2015).

(76) See Chapter 6; Appendix (Indonesia).

(77) KontraS (2010).

(78) See Law 9/1976 on Narcotics (Indonesia), art 23(4)–(5).

(79) See Watts (2015).

(81) Gunawan (2016) 60. Gunawan also notes several fair trial concerns at the outset of the case. Gularte was denied access to an interpreter and a lawyer in the period immediately after his arrest (at 46–7).