Three Coming Challenges to Indonesia's Death Penalty Regime

• Author: Daniel Pascoe
• Position: School of Law, City University of Hong Kong
• Pages: 239-280

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2015 e Institute for Migrant Rights Press

239

Note. is article is in part based on the author’s doctoral research, and as such the

identities of persons interviewed as part of in-country eldwork from 2009 to 2013 in

the U.K., Australia, Indonesia and Malaysia have been anonymized, in line with ethical

stipulations.

THREE COMING LEGAL CHALLENGES TO

INDONESIA’S DEATH PENALTY REGIME

DANIEL PASCOE

School of Law, City University of Hong Kong

E-mail: dcpascoe@cityu.edu.hk

Indonesia’s President, Susilo Bambang Yudhoyono, stepped down on October

20, 2014 after two ve-year terms in oce. Under Joko Widodo, his successor,

outright abolition is considered unlikely for the time being, as Indonesia’s public,

government and religious institutions still favor the retention of the death penalty.

By the date of his departure from oce, President Yudhoyono faced around

40 pending clemency petitions, which he did not rule on, preferring instead to

pass them to his successor. Other than hoping that the new President accedes to

these requests for clemency, or alternatively the courts proceeding to overturn the

death sentence in judicial appeals for those prisoners who still retain the option,

abolitionists and defence advocates must consider other legal possibilities for the

roughly 140 prisoners currently held under sentence of death in Indonesia.

Accordingly, within the context of a signicant political moment for the

country, I outline three potential constitutional challenges to Indonesia’s death

penalty, capable of being employed by and on behalf of those prisoners who

remain on death row. In general, these potential challenges would involve judicial

determination on: 1. the length of time that certain prisoners have spent on death

row in Indonesia; 2. the procedural changes to clemency petitions brought by

Indonesia’s revised 2010 clemency law; and 3. the relationship between judicial

review proceedings (“peninjauan kembali”) and clemency petitions. In this

article, I outline the legal arguments in favor of each challenge, the categories of

prisoners who would stand to benet, together with foreseeable legal and political

hurdles that would need to be overcome for the petitioners.

The Indonesian Journal of International & Comparative Law Volume II Issue 2 (2015) at 239–80

Daniel Pascoe

240

Keywords: Capital Punishment, Constitutional Law, Crime and Punishment,

Criminal Law, Human Rights Law.

I. INTRODUCTION

As one of the declining number of actively retentionist states when it

comes to the death penalty, Indonesia faced a political watershed moment

in October 2014, as President Susilo Bambang Yudhoyono stepped down

after the completion of his two ve year terms as President. Outright ab-

olition is considered unlikely under his successor, Joko Widodo, as Indo-

nesia’s public, government and religious institutions still favor retention.1

In January 2014 (with the most recent set of statistics before Yudhoyono

left oce), there were over 140 people on Indonesia’s death row,2 includ-

ing roughly 30 to 40 prisoners who had exhausted all possible avenues

of appeal3 and the remainder pursuing various stages of appeal.4 By his

1. Todung Mulya Lubis, Abolition of the Death Penalty: Indonesia at a Crossroads, in

C P: A H   S C J S

(Lill Scherdin ed., 2014); Remarks by Speaker at University of Hong Kong

Conference (Oct. 24-5, 2013).

2. Richard Smith & Adam Aspinall, British Drug Mule Andrea Waldeck Jailed for

14 Years in Indonesia for Smuggling Crystal Meth, M O (Jan. 22,

2014), http://www.mirror.co.uk/news/uk-news/british-drug-mule-andrea-

waldeck-3048856.

3. e latest set of complete gures from March 2013 shows that at least 36 prisoners

had already been rejected for clemency and as such may be vulnerable to being

listed for execution, from an overall total of 133. K, C P

 I: U - (Mar. 2013), available at http://kontras.org/

data/Capital%20Punishment%20in%20Indonesia%20Update%202012-2013.

pdf (last visited Feb. 12, 2015). Of this total, ve were executed in 2013: the

last executions under Yudhoyono. Inilah Terpidana Mati Yang Telah Dieksekusi

1979-2013, W K (Jan. 17, 2015), http://wartakota.tribunnews.

com/2015/01/17/inilah-terpidana-mati-yang-telah-dieksekusi-1979-2013.

4. In March 2013 there were at least 9 clemency applications (and probably more)

in death penalty cases pending before President Yudhoyono. K, supra note

3. Of the set of prisoners whose ordinary judicial appeals (excluding “PK” case

reviews) had elapsed and would therefore have to le for clemency within a year,

there were 32 cases, and with the assumption that many of these prisoners would

want to le for clemency before President Yudhoyono left oce (on the possibility

Daniel Pascoe

Three Coming Challenges to Indonesia’s Death Penalty Regime

241

departure from oce on October 20, 2014, President Yudhoyono may

have had around 40 clemency petitions to rule on.5 Other than hoping

for clemency from the outgoing President or from the new leader Joko

Widodo, or alternatively the courts proceeding to overturn the death sen-

tence in judicial appeals for those prisoners who still retain the option,

abolitionists and defence advocates must consider other legal possibilities

for death row prisoners.

In this article, within the context of a signicant political moment

for the country, I outline three potential constitutional challenges to

Indonesia’s death penalty, capable of being employed by and on behalf

of those prisoners who remain on death row. Although Indonesia’s failure

to conduct any executions over the period 2009-2012 gave hope to

abolitionists who saw a democratic Indonesia as potentially the next de-

jure abolitionist state in Southeast Asia,6 the resumption of state killing in

2013 has cast doubt on this development for now.

that he would grant some or all petitions in front of him), the number of pending

applications by October 2014 may have been close to 40.

5. It would have been possible for Yudhoyono to pass the petitions on to his

successor, Joko Widodo, or alternatively to rule on the petitions and not make

the decision public, so long as the prisoner is notied within 14 days. Undang-

Undang Republik Indonesia No. 22 Tahun 2002 tentang Grasi, diundangkan di

Jakarta pada tanggal 22 Oktober 2002 [Law of the Republic of Indonesia No. 22

of 2002 on the Clemency, Done at Jakarta on Oct. 22, 2002], 108 L

N [L.N.] [Ocial Gazzette of the Republic of Indonesia] (2002), art. 12

(1) available at http://www.hukumonline.com/pusatdata/detail/17452/node/21/

uu-no-22-tahun-2002-grasi (last visited Feb. 13, 2015) (Indon.). President

Yudhoyono granted clemency to 19 drug tracking convicts (of 128 petitions

submitted) over the period 2004-2011, including the commutation of four death

sentences. Dessy Sagita, Indonesia Not Alone in Death Penalty Reticence: Ministers,

J G (Oct. 17, 2012), http://thejakartaglobe.beritasatu.com/archive/

indonesia-not-alone-in-death-penalty-reticence-ministers/. Whether the President

has granted clemency in any other death penalty cases remains unknown.

6. In Southeast Asia, the states that have abolished the death penalty in law consist

of Cambodia (in 1989), Timor-Leste (1999) and the Philippines (2006).

D T. J  F E. Z, T N F: N

D, P C,   D P  A 7, 16

(2009); N S W C  C L, T D P

  A-P R, available at http://www.nswccl.org.au/issues/death_

penalty/asiapac.php (last visited Sept. 9, 2013).