Legal Mechanisms, Historical Practice, and Procedures for Presidential Granting of Amnesty and Abolition in Indonesia

Legal Mechanisms, Historical Practice, and Procedures for Presidential Granting of Amnesty and Abolition in Indonesia

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Kenny Wiston

INTRODUCTION

This memorandum addresses the legal framework, historical precedents, and procedural mechanisms for the granting of amnesty and abolition by the President of the Republic of Indonesia. The analysis is based on the applicable Indonesian constitutional and statutory provisions, as well as relevant Presidential Decrees and administrative regulations. Key issues include the constitutional requirements for checks and balances, the involvement of the House of Representatives (DPR) and the Supreme Court, the finality of Presidential Decrees, and notable cases in Indonesian history. The memorandum concludes with actionable recommendations strictly aligned with Indonesian law.

DISCUSSION

  1. Legal Rules and Mechanisms for Granting Amnesty and Abolition by the President
  • The authority of the President to grant amnesty and abolition is explicitly regulated by several Indonesian legal instruments:
    1. Article 14 paragraph (2) of the 1945 Constitution of the Republic of Indonesia (UUD 1945) stipulates that the President grants amnesty and abolition with due regard to the consideration of the House of Representatives (DPR), ensuring a constitutional check and balance between executive and legislative branches.
    2. Article 71 letter i of Law Number 2 of 2018 concerning the Second Amendment to Law Number 17 of 2014 on the People’s Consultative Assembly, the House of Representatives, the Regional Representative Council, and the Regional House of Representatives (UU MD3) affirms the DPR’s authority to provide consideration to the President in granting amnesty and abolition.
    3. Article 1 of Emergency Law Number 11 of 1954 concerning Amnesty and Abolition provides that the President, in the interest of the state, may grant amnesty and abolition to persons who have committed criminal acts, after receiving written advice from the Supreme Court upon the request of the Minister of Justice.
    4. Article 4 of Emergency Law Number 11 of 1954 stipulates that amnesty erases all criminal legal consequences, while abolition eliminates prosecution.
    5. In practice, the mechanism is implemented through Presidential Decrees, which are concrete, individual, and final, as seen in Presidential Decree Number 173 of 1999, Presidential Decree Number 91 of 2000, and Presidential Decree Number 22 of 2005.
    6. The administrative and technical preparation of draft Presidential Decrees is carried out by the Ministry of State Secretariat, particularly the Deputy for Law and Legislation, as regulated in Article 3 letter d and Article 48 letter e of Presidential Regulation Number 24 of 2015 concerning the Ministry of State Secretariat.
  • The legal mechanism involves:
    • Submission or initiative for amnesty/abolition
    • Request and provision of DPR consideration
    • Request and provision of written advice from the Supreme Court
    • Preparation and finalization of the draft Presidential Decree by the Ministry of State Secretariat
    • Issuance of the Presidential Decree
    • Execution by the relevant Minister
  • All processes must adhere to constitutional and administrative principles as mandated by prevailing laws and regulations.
  1. Historical Cases of Amnesty and Abolition in Indonesia
  • Several significant cases have received amnesty and abolition through Presidential Decrees, including:
    1. The Daud Bereueh Rebellion in Aceh: Presidential Decree Number 180 of 1959 granted amnesty and abolition to individuals involved in the rebellion who returned to the state, erasing all criminal legal consequences and eliminating prosecution.
    2. Separatist Movements and Other Political Cases: Presidential Decree Numbers 449 and 568 of 1961 granted amnesty and abolition to unconditional surrendering rebels, aiming to restore national security.
    3. Political and Humanitarian Cases during the Reform Era: In 1998, a series of Presidential Decrees (e.g., Presidential Decree Numbers 80, 82, 85, 105, 123, 126, 127, and 202 of 1998) granted amnesty and/or abolition to political convicts and suspects, including prominent figures such as Dr. Muchtar Pakpahan, Dr. Ir. Sri Bintang Pamungkas, and others.
    4. Post-Reform Cases: Presidential Decree Numbers 115 of 2000 and 88 of 2001 granted abolition to suspects in political cases in Papua and Maluku.
  • All such grants were based on Article 14 of the 1945 Constitution, Emergency Law Number 11 of 1954, and concrete, individual, and final Presidential Decrees, generally concerning political, rebellion, or humanitarian cases deemed strategic for national reconciliation.
  1. Procedures and Administrative Steps for Obtaining Amnesty and Abolition
  • The procedure for obtaining amnesty and abolition is constitutionally and administratively regulated as follows:
    1. Submission or Initiative: Applications may be submitted by interested parties or initiated by the President in the national interest, as per Article 1 of Emergency Law Number 11 of 1954.
    2. DPR Consideration: The President must request and consider the DPR’s opinion before granting amnesty or abolition, in accordance with Article 14 paragraph (2) of the 1945 Constitution and Article 71 letter i of Law Number 2 of 2018 (UU MD3).
    3. Supreme Court Advice: The President may request written advice from the Supreme Court, as stipulated in Article 1 of Emergency Law Number 11 of 1954, upon the request of the Minister of Law and Human Rights.
    4. Drafting the Presidential Decree: The Ministry of State Secretariat, through the Deputy for Law and Legislation, prepares and finalizes the draft Presidential Decree, as regulated in Article 3 letter d and Article 48 letter e of Presidential Regulation Number 24 of 2015.
    5. Issuance of the Presidential Decree: Upon completion of all considerations and advice, the President issues a concrete, individual, and final Presidential Decree, as defined in Chapter I letter d number 1 of the Attachment to Minister of State Secretary Regulation Number 15 of 2016.
    6. Execution: The implementation of the Decree is carried out by the Minister of Law and Human Rights and the Attorney General, as stated in the execution clauses of relevant Presidential Decrees.
  • The process is characterized by strict administrative and constitutional stages, ensuring checks and balances among the President, DPR, and Supreme Court, and is formalized in a final and binding Presidential Decree.
  1. Presidential Initiative in Granting Amnesty and Abolition
  • The President is not permitted to unilaterally or solely at his/her own discretion grant amnesty and abolition without following the procedures involving other state institutions:
    • Article 14 paragraph (2) of the 1945 Constitution requires the President to consider the DPR’s opinion, establishing a constitutional check and balance.
    • Article 71 letter i of Law Number 2 of 2018 (UU MD3) affirms the DPR’s authority to provide consideration, making it a mandatory constitutional requirement.
    • Article 1 of Emergency Law Number 11 of 1954 requires the President to obtain written advice from the Supreme Court, delivered upon the request of the Minister of Justice, thus involving the judiciary.
    • In practice, all grants of amnesty and abolition are formalized in Presidential Decrees preceded by DPR consideration and Supreme Court advice, as seen in Presidential Decree Number 173 of 1999 and Presidential Decree Number 115 of 2000.
  • Therefore, the President cannot act unilaterally or solely on personal will, but must comply with constitutional and administrative procedures involving the DPR and Supreme Court.
  1. Finality and Irrevocability of Presidential Decrees on Amnesty and Abolition
  • Presidential Decrees granting amnesty and abolition are concrete, individual, final, and, in principle, cannot be unilaterally revoked after issuance, except for compelling legal reasons in accordance with statutory mechanisms:
    • Chapter I letter d number 1 of the Attachment to Minister of State Secretary Regulation Number 15 of 2016 defines Presidential Decrees as written determinations by the President, based on statutory regulations, which are concrete, individual, and final, and create legal consequences for individuals or legal entities.
    • In practice, such Decrees (e.g., Presidential Decree Numbers 173 of 1999, 115 of 2000, and 88 of 2001) are effective from the date of issuance and are executed by relevant officials without any administrative revocation mechanism post-enactment.
    • Article 4 of Emergency Law Number 11 of 1954 affirms that amnesty erases all criminal legal consequences and abolition eliminates prosecution, making the Decree binding and not subject to unilateral withdrawal.
    • No provision in the 1945 Constitution, Emergency Law Number 11 of 1954, or its implementing regulations authorizes the President or other officials to revoke such Decrees after issuance, except through extraordinary legal remedies such as judicial review by the Supreme Court in cases of administrative law violations.
  • Thus, Presidential Decrees on amnesty and abolition are final and irrevocable, except for fundamental legal reasons and through applicable legal mechanisms.

CONCLUSION

Based on the above analysis, it is concluded that the granting of amnesty and abolition by the President of Indonesia is strictly regulated by constitutional and statutory provisions, requiring DPR consideration and Supreme Court advice, and is formalized through final and binding Presidential Decrees. Historical practice confirms the application of these mechanisms in significant political and humanitarian cases. It is recommended that:

  1. All future applications for amnesty and abolition strictly adhere to the constitutional and administrative procedures involving the DPR and Supreme Court.
  2. Presidential Decrees on amnesty and abolition be treated as final and binding, with revocation only possible through extraordinary legal remedies in accordance with Indonesian law.

LEGAL BASIS

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