Three Coming Legal Challenges to Indonesia's Death Penalty Regime

Abstract

Indonesia's President, Susilo Bambang Yudhoyono, stepped down on 20 October 2014 after two five-year terms in office. Under Joko Widodo, his successor, outright abolition is considered unlikely for the time being, as Indonesia’s public, government and religious institutions still favour the retention of the death penalty. By the date of his departure from office, 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 significant 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 favour of each challenge, the categories of prisoners who would stand to benefit, together with foreseeable legal and political hurdles that would need to be overcome for the petitioners.