1945 Constitution is the supreme law of the State. It is an agreement of all Indonesian people wherein every law and rules under the Constitution can not contrary the substances of Constitution itself. Constitutional interpretation is not an easy thing because it is not only strict to what grammatically stated.

Constitutionality of Death Penalty

Regarding to death penalty in Indonesia, actually how is the constitutional validity of its practice? Is it true that death penalty contrary with Article 6(1) of ICCPR and Article 28I (1) of 1945 Constitution such as the public opinion which has developed recently? Unfortunately, most of the people only interpreted the provision in partial without clearly understanding the whole meaning which is contained inside those Convention and Constitution.

Professedly ICCPR has a spirit to abolish the death penalty in this earth, but it is not an absolute proviso for its State Members. ICCPR doesn’t tickly close for those countries that still treating death penalty as one of the punishment methods in their legal system. Article 6(2) laid down an exception to impose the death penalty only for the most serious crimes. It means ICCPR fully respect the sovereignty of its members to regulate the necessity of death penalty in their countries as long as it is fulfilling the international requirements. This condition will totally change if Indonesia ratifies the Second Optional Protocol of ICCPR wherein the state members can’t execute anyone with death penalty unless for a most serious crime of a military nature committed during wartime through special reservation notify to Secretary General of the UN.

It is not much different when someone proposes to interpret the constitution. In this case, we have to use also a holistic interpretation method that interprets constitutional provisions as an integral and integrated constitution. It is right that Article 28I (1) guarantees right to life that cannot be limited under any circumstances, nonetheless it has to be followed with comprehensive understanding of Article 28J (2) which stated, “In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law …”. In other meaning, the Constitution has given the exception and reservation of right to life in Article 28I (1) based upon the consideration of morality, religious values, security and public order.

The spirit of 1945 Constitution relating to the death penalty will be clearly seen when we use socio-historic interpretation method through the historical fact from the session when the legislator were amending the Constitution. We will easily find that the historical social context behind the formulation of the provision was not to abolish the death penalty, but it gravitates to give a stronger guarantee and more assertive of rights to the people.

Narcotic as ‘Most Serious Crime’

The explanation above has clearly said that the death penalty has constitutional validity according to 1945 Constitution. The next question is whether the narcotic and drug abuse implies the category of ‘most serious crime’ or not? Till today, the definition of this clause hasn’t come up with the common understanding amongst UN Countries. Nonetheless, we can refer to the concluding observation of U.N. Doc. CCPR/C/79/Add. 25, 1993 which stated, “considers the imposition of [death penalty] … for crimes than do not result in loss of life, as being contrary to the Covenant.” Therefore, there is a strong indication that only offences directly resulting in an intentional loss of life can fulfil the criterion (Jan Kratochivl, 2006). Martin Scheinin in Capital Punishment and ICCPR holds that the classification of a crime as one of the most serious crimes should be based on the intent of the perpetrator and the consequences of the crime.

Furthermore, the Advisory Council of Jurist of Asia Pacific Forum considers this crime as those which involve the wanton destruction of human life. In their book, International Criminal Law and Human Rights (2003), Claire de Than and Edwin Shorts defines the scope of “most serious crimes” encompass modern threats such as drug trafficking or terrorism. For drug trafficking, its subterfuges can be based on the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substance, 1998 which becomes a legal ground for international cooperation amongst countries in order to exterminate the silent transnational crimes on illegal circulation of narcotic and psychotropic substance.

In national level, the dangerous of this crime has been proofed through the empirical research by National Narcotics Agency (BNN) and University of Indonesia (UI). It concluded that there are about 3.2 million drug users in Indonesia with the number of death around 15.000 users per year. It means there were 41 people died every day due to the overdose or drug-related AIDS infection. If it is always happen in the future, surely sure that within 5-10 years Indonesia will have lost generation. Hence, it will be very outlandish if someone not acknowledges Narcotic Crimes as a most serious crime in Indonesia.

– To Be Continued –

Notes for Next Articles:

1. The drawback of implementation is nothing to do with constitutionality of death penalty.
2. Ultimate abolition is possible only when the basic standards in the criminal justice system already referred to have been achieved (Advisory Council of Jurist of Asia Pacific Forum).
3. According to Harkristuti Harkrisnowo (February, 2007), Indonesian Penal Code Bill will treat the death penalty as a preferential punishment wherein the accuser who has imposed by death penalty will be attempted for ten years. If the accuser discloses a good behaviour then his/her sentence will be changed into the life imprisonment. J.E. Sahetapy called this system as de facto abolition (January, 2005).
4. New Evidence from Post-moratorium Panel Data by Joanna M. Shepherd et. al. in Does Capital Punishment Have a Deterrent Effect? published at American Law and Economic Reviews results that capital punishment has a strong deterrent effect; each execution results, on average, in 18 fewer murders.