Abstract
Singapore and Thailand, two nations within the same political and geographical grouping (the Association of Southeast Asian Nations), have both utilised the death penalty in murder, drug trafficking and security cases over the past 40 years. Both nations have executed prisoners frequently enough never to have been reclassified from ‘actively retentionist’ states to ‘abolitionist de facto’ states since 1975. However, despite these similarities in death penalty practice, one point of difference is particularly striking. For finalised capital cases (where prisoners have exhausted available judicial remedies), the proportion of death row prisoners granted clemency or pardon, rather than being executed, stands at around 1% for Singapore and over 90% for Thailand, during the 40-year period 1975–2014. Why this remarkable difference, with one jurisdiction seemingly viewing clemency as an extraordinary remedy only to be afforded to a prisoner in the rarest circumstances, while the other jurisdiction’s executive instead endorses clemency as the expected, routine outcome in death penalty cases? In this chapter, the author combines theoretically plausible explanations with local observations to explain why such a marked discrepancy in clemency practices may exist, and to which structural or cultural features of the Singaporean and Thai societies it can be traced.
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Notes
- 1.
Within Amnesty International’s definition, an abolitionist ‘de facto’ state is a jurisdiction that retains the death penalty in law, yet has not carried out an execution for more than 10 years (Hood and Hoyle 2015).
- 2.
Clemency, in its modern American usage, refers to a sentence of death being reduced by the executive to a fixed or life sentence of imprisonment. A pardon, rarer than clemency in contemporary death penalty cases, involves the prisoner being released from prisoner altogether, sometimes accompanied by the erasure of the criminal record (as in cases of innocence) (Acker et al. 2010; Acker and Lanier 2000; Coyne and Entzeroth 2001). Within the chapter, I include such ‘pardons’ within the generic term ‘clemency’. In Thailand, a prisoner will typically find his or her death sentence reduced to life imprisonment, but may then be granted further reductions (Criminal Procedure Code, s 259–267; Thailand Department of Corrections 2009b). In Singapore, clemency now reduces a death sentence to a life without parole sentence (up from 20 years in 1997 – Hamsah v Public Prosecutor [1997] 2 SLR(R) 842).
- 3.
Here, I exclude prisoners removed from death row for reasons other than commutation, or execution. As such, prisoners who escape from prison while on death row, die before execution, or are removed for other reasons have not been counted.
- 4.
Statistics on file with the author. 1975 is the starting point because trafficking in specified quantities of drugs was made a capital offence in Singapore in that year (Misuse of Drugs (Amendment) Act 1975). Thailand introduced the death penalty for narcotics in 1979, although summary executions of heroin traffickers had been carried out throughout the 1960s and 1970s (Bangkok Post October 3, 1999).
- 5.
My doctoral research revealed that over a similar period (1975–2009), the clemency ‘rate’ in Indonesia was approximately 24–33%, in Malaysia was 26–40% and in Vietnam was 6–23%. I labelled all three cases examples of ‘medium’ clemency rates (Pascoe 2014).
- 6.
In line with ethical stipulations, interviewee identities have been anonymised throughout the chapter.
- 7.
There are of course states (such as Brunei, Papua New Guinea and the Maldives, also in the Asia-Pacific region) where no prisoner was executed during the equivalent period 1975–2014 (Johnson and Zimring 2009; Amnesty International 2015), and all or a majority of death sentences imposed were commuted by the executive, yet these states cannot be then classified as ‘actively’ retentionist. Conversely, in the same region, Japan has not granted clemency to a single capital prisoner since 1975 (Johnson and Zimring 2009), and none of China’s various constitutions has allowed for individualised executive clemency or pardon since the establishment of the People’s Republic in 1949 (Zhou 2011; Shen 2014).
- 8.
Execution figures on file with the author.
- 9.
The defence of provocation was also raised at trial (Public Prosecutor v Koh Swee Beng [1990] SLR 405).
- 10.
One interviewee stated that ‘my own view is that terminal illness is the safest bet for clemency... I am almost [certain] that no-one who was known to be terminally ill has been executed’ (Singaporean Academic 2011, pers. comm.).
- 11.
In Singapore, no prisoner under 18 years of age at the time of the offence may be executed (Criminal Procedure Code, s 314). In relation to the cases of Jaafar and Kalimuthu, ‘it is not known if age was a factor in the deliberations’ (Sunday Times October 11, 2009). However, the Singapore government has confirmed that around 5% of prisoners executed between 1993 and 2003 were aged between 18 and 20 years at the time of arrest (Singapore Government 2004), suggesting around 17 prisoners based on known execution totals.
- 12.
However, one interviewee cautioned against a prediction of clemency in future cases of this type, as ‘almost all killings in Singapore are crimes of passion – premeditated killing is extremely rare’ (Singaporean Academic 2011, pers. comm.).
- 13.
See also Thailand Criminal Procedure Code, s 259 and s 261 bis (on Individual and Collective Royal Pardons, respectively).
- 14.
An official I interviewed from the Department of Corrections viewed officers of his department as making the decision, while the Ministry of Justice merely confirmed it (Thailand Department of Corrections Staff 2012, pers. comm.). The same official also mentioned that a recommendation from the Office of the Narcotics Control Board (ONCB) will be asked for in relation to drug trafficking convicts.
- 15.
- 16.
Prisoners have been known to drop their final judicial (Supreme Court) appeal against the death sentence in order to become eligible for a forthcoming Collective Royal Pardon (Thai Criminal Defence Lawyer 2012, pers. comm.).
- 17.
The committee will contain representatives of the following departments and agencies: Ministry of Interior, Office of the Attorney-General, Ministry of Defence, Royal Thai Police, Office of the Narcotics Control Board, Ministry of Justice, Department of Corrections, Secretariat of the Cabinet, Office of His Majesty’s Principal Private Secretary and Office of the Council of State (Thailand Department of Corrections 2009a).
- 18.
Collective Royal Pardons, for prisoners sentenced to a term of imprisonment rather than those condemned to death, are used primarily as a ‘remissions’ measure in order to reduce prison overcrowding and motivate good behaviour in prison (Thailand Union for Civil Liberty 2011; Thai Human Rights Activist #2 2012, pers. comm.; Former Employee of the Thailand Department of Corrections 2012, pers. comm.).
- 19.
The government’s role is crucial here in deciding which categories of crimes or prisoners to ‘veto’ from eligibility for Collective Royal Pardon (Thai Prison Caseworker 2012, pers. comm.).
- 20.
Statistics on file with the author.
- 21.
From 1935 to 2005, until Thailand amended the method of execution from shooting to lethal injection, men executed in Thailand outnumbered women by 316 to 3 (International Federation for Human Rights 2005). Pregnant women cannot be executed by law (Criminal Procedure Code, s 246–247).
- 22.
Prisoners under 18 cannot, in any case, be executed (Criminal Procedure Code, s 18). Moreover, in practice, no one is executed above the age of 65 (Thai Human Rights Activist 2010, pers. comm.).
- 23.
- 24.
- 25.
Overall, the Bangkok Post reported in 1995 that capital prisoners who were not executed spent an average of 12 years in prison before release: a sample that takes into account Collective Royal Pardons (Bangkok Post October 9, 1995). Other estimates are 10 years (The Nation March 11, 2012) or up to 15–20 years (Bangkok Post October 3, 1999).
- 26.
Other clemency justifications aided by the passing of time consist of assisting law enforcement agencies, psychiatric or terminal illness, old age, family illness and the bribery of officials (Pascoe 2014).
- 27.
See above: Features of Cases Where Royal Pardon Was Refused (and the Prisoner Was Executed).
- 28.
Emphasis added.
- 29.
Mitigating circumstances demanding a lesser punishment that have resulted in non-capital charges being brought in an otherwise capital case include relative youth or criminal inexperience (Singaporean Academic 2011, pers. comm.; Singaporean Criminal Defence Lawyer 2011, pers. comm.), mental impairment (Singaporean Academic 2011, pers. comm.), testifying against co-offenders (Ravinthran v Attorney-General [2012] SGCA 2; Chen 2013), other forms of cooperation with the police (Hor 2013) and favourable intelligence reports from the Singapore Central Narcotics Board (Singaporean Criminal Defence Lawyer 2011, pers. comm.).
- 30.
Statistically, the general pattern over the period from 1975 to 2014, for which intermittent figures are available, is the imposition of a very large number of death sentences in the Courts of First Instance (175 is the highest 1980s figure for a single year, 109 in the 1990s, 447 after the year 2000), a moderate number of death sentences remaining after judicial appeals are exhausted (65 being the highest death row population in the 1980s, 70 in the 1990s, 147 after the year 2000), but only a comparatively small number of executions (an average of 3.3 per year from 1975–2014, with a minimum of 0 and a maximum of 16). Statistics on file with the author.
- 31.
Also 29.99 grams for cocaine trafficking or 499 grams for cannabis trafficking.
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Acknowledgement
The fieldwork interviews relied upon in drafting this chapter were funded by the Wingate Foundation and the Keith Murray Graduate Scholarship Fund at Lincoln College, University of Oxford.
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Pascoe, D. (2017). Singapore and Thailand: Explaining Differences in Death Penalty Clemency. In: Liu, J., Travers, M., Chang, L. (eds) Comparative Criminology in Asia. Springer Series on Asian Criminology and Criminal Justice Research. Springer, Cham. https://doi.org/10.1007/978-3-319-54942-2_12
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