What Accounts for Southeast Asia’s Diverse Clemency Practice?

Abstract

Abstract 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.