Change of president means unsettling time for Indonesia's death row prisoners

The Age
On October 20, Susilo Bambang Yudhoyono will step down as President of Indonesia after two five-year terms, and Joko Widodo will be inaugurated. What will be the potential impact of the change of Presidency on those prisoners on death row in Indonesia, which include Australians Andrew Chan and Myuran Sukumaran?

Mr Yudhoyono has a mixed record on the death penalty. Under his 10-year presidency, 14 prisoners were executed for premeditated murder, three for terrorist offences, and four for drug trafficking. However, executions by the state declined notably in his second term with no prisoner executed between 2009 and 2012, in part because of domestic concern over the fate of Indonesian domestic workers sentenced to death abroad.

Around 140 people remain on death row in Indonesia. Thirty to 40 of these prisoners have exhausted all options of appeal. Their fate rests solely with the Attorney-General's Office, which bears the responsibility for carrying out executions, though possibly with the president's tacit consent.

For another forty or so prisoners who have had no luck overturning their death sentences in the courts, the final option to avoid the firing squad is presidential clemency: the power of the president under the Indonesian Constitution and the 2010 Clemency Law to reduce a death sentence to life imprisonment.

Over the last weeks of his presidency, Yudhoyono has faced up to 40 clemency petitions from prisoners on death row, and hundreds or even thousands of petitions from non-death row prisoners seeking to reduce the length of their prison sentences.

Unless they have already been decided on, Chan's and Sukumaran's mercy petitions will be among those sitting on the president's desk. What will happen to these petitions as Mr Yudhoyono leaves office and the Widodo administration steps in?

Four possibilities exist.

First, Mr Yudhoyono could grant all of the clemency petitions put before him. Death row prisoners and their relatives will hope Mr Yudhoyono authorises a mass grant of clemency, as has frequently occurred in the United States,, where State Governors have pardoned numerous prisoners upon leaving office, reasoning there is no political cost in doing so.

With the speculation that Mr Yudhoyono plans to pursue a career at the United Nations, a mass commutation of death sentences would be well received, given a majority of UN member states have now abolished the death penalty in law or in practice. This option could see Chan and Sukumaran spared from the firing squad, though they would still face a life sentence.

The second option is that Mr Yudhoyono grants some petitions and rejects others. There is a precedent since, in October 2012, the president granted 19 of 128 clemency petitions (including four death sentence reductions) for drug trafficking cases between 2004 and 2011.

The decisions here could be made on the basis of humanitarian considerations such as good behaviour in prison, expressed remorse, or sufficient time already spent on death row, as well as political considerations such as relations with foreign states. Notably, the Governor of Bali's Kerokoban Prison has already expressed support for Chan's and Sukumaran's appeals for clemency due to their good behaviour. However the Indonesian Supreme Court, which has a formal role in giving advice to the president on clemency, reportedly does not support Chan's petition.

The third alternative is that Mr Yudhoyono rejects all pending petitions. Chan and Sukumaran, plus the many other prisoners affected, would have to consider any remaining legal options to avoid execution, including constitutional challenges. An impending execution could be challenged based on the cruelty of excessive time spent on death row, a new one-year deadline for clemency petitions impeding an effective legal defence, or even Mr Yudhoyono's own tardiness in responding to the petitions (Chan's and Sukumaran's mercy pleas should have been decided on by the president more than 18 months ago, according to time-limits set by the 2010 clemency law).

Finally, if he does not want to make a decision, Mr Yudhoyono could simply pass off the pending clemency requests to the new president. In the end, this may be the most likely outcome, as it will save Mr Yudhoyono from dealing with any political fallout.

The Widodo administration isn't likely to be as punitive as a Prabowo Subianto Presidency would have been (while campaigning, Mr Subianto stated that he was in favour of sentencing rapists and corrupt officials to death), yet the immediate abolition of the death penalty is still unlikely. Indonesia's public, government and religious institutions favour retention. Mr Widodo's treatment of clemency petitions is as yet unknown, but the longer they remain unanswered, political and legal pressure will build on the new president to dispose of the petitions by either rejecting or granting them.

Daniel Pascoe 

Assistant professor at the School of Law, the City University of Hong Kong.