Capital Punishment in Indonesia


KEEP THE DEATH SENTECE
Ahmad Qisa’i, Jakarta
Pan Mohamad Faiz, New Delhi

This article was published at the Jakarta Post on Wed, 08/06/2008

In the past week, debate over the pros and cons of using capital punishment in Indonesia has made the news on several TV stations, pitching two opposing camps against each other. The execution of five convicts found guilty of drug trafficking and murder in July 2008 have triggered the question: “Should capital punishment in Indonesia be retained or abolished altogether?”

Abolitionists, those who oppose capital punishment, claim the right to life cannot be abrogated, at any cost, by anyone and that the state is responsible for ensuring this. A convict proven guilty of a serious crime cannot be put to death, but should instead be imprisoned for the longest term possible.

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Capital Punishment in India


STATISTICS PERTAINING TO CAPITAL PUNISHMENT IN INDIA

According to the “Law Z”, the statistic of capital punishment in India is increasing. Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no executions. Anti-death penalty activist dispute those figures, claiming much higher numbers on Death Row and actual executions.

In August 2004, a 41-year old former security man, Dhananjoy Chatterjee, was executed for raping and killing a 14 year old schoolgirl in Calcutta. This was the country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death Row.

It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the president.

Death Penalty in Indonesia (2)


THE CONSTITUTIONAL DEBATE ON DEATH PENALTY
By Mohamad Mova Al ‘Afghani (Bremen) and and Pan Mohamad Faiz (Delhi)

Capital punishment debate resurfaces when a group of death row inmates lodged a judicial review to the Constitutional Court against death penalty articles under the 1997 Narcotics Law, used by the criminal court to sentence them. Almost 130 countries in the world had abolished capital punishment while the rest including Indonesia still preserves it.

The petitioners argue that death penalty is a denial on the right of life as guaranteed by Articles 28A and 28I of 1945 Constitution. According to international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the right to life is a “non-derogable right”. Indonesia is a party to the ICCPR but has not acceded to its protocols. Petitioner’s lawyers argued that as the verses on the Constitution almost verbatimly mimic the ICCPR’s wordings, they have to be interpreted pararell to the ICCPR.

ICCPR does not prohibit death penalty but its protocols do. As Indonesia is not a party to any ICCPR’s protocol the practice of death penalty will not violate any international obligation to the ICCPR as long as the treatment of the inmates in the death row and the execution of the convict is made in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article 28I (1) of the constitution guarantees stated that the right to life cannot be limited under any circumstances, but Article 28J (2) stated that “In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law … based upon the consideration of morality, religious values, security and public order in democratic society”. The debate goes on as to whether the application of Article 28I (1) – due to the phrase “cannot be limited under any circumstances” – is non-derogable, including by Article 28J (2).

The convict’s attorneys think that the rights under Article 28I (1) belongs to the cluster of rights which are non-derogable, including by Article 28J (2). The government on the other hand, is of the opinion that Article 28J (2) may derogate Article 28I (1). Toward this polemic, there are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of death penalty is stated nowhere on the Constitution. The wordings of “cannot be limited under any circumstances” under Article 28 I (1) cannot therefore be interpreted so as to mean prohibiting death penalty. A comparison towards Germany and Vietnam’s constitutions would reveal that the prohibition of death penalty is supported with a written, literal expression on the articles of the Constitution. As Indonesia’s Constitution has no such provision, death penalty is so far, in line with the Constitution.

Second, by using the teleological approach, it can be seen from the preamble that the purpose of the constitution is to first “protect the whole people of Indonesia and the entire homeland of Indonesia”. Indonesia has 3.2 million drug users with the number of death around 15.000 users per year or an average of 41 deaths per day due to the overdose or drug-related AIDS infection. The state has the constitutional obligation to prevent these deaths and to prevent the occurrence of lost generation. Thus, the protection of the people by the state is paramount and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear that Article 28 J is placed under the same chapter with Article 28 I, which is the amended human rights chapter. It is then conclusive that Article 28 J was made “in relation and with due regard to” Article 28 I. We do not consider it appropriate to interpret that the restriction towards the implementation of human rights under Article 28 J refers to clusters of rights other than Article 28 I. The restriction under Article 28 J appears to cover the whole set of the constitution.

Moreover, under the social contract construction, perpetrators are deemed to have waived their right to life which is protected under the law by conducting actions which results in the loss of life of other. Thus, by “knowingly” killing others and having aware that their action entails a capital punishment, they have given “implied consent” to be punished with death penalty.

There are also a number of non-legal arguments which supports death penalty, especially when it comes to “most serious crime”. There is no common understanding among UN Countries on this matter. Nonetheless, we can refer to the concluding observation of U.N. Doc. CCPR/C/79/Add. 25, 1993 which stated that the “imposition of [death penalty] … for crimes than do not result in loss of life, as being contrary to the Covenant.” 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.

Narcotics are the kind of crime which may results in the loss of life of others. The debate however continues as narcotic accomplices does not “pull the trigger” themselves. From a consequalist point of view, it may not be relevant that a certain crime is conducted “wilfully and knowingly” which means that there is a direct causal relation between the intention to kill and the consequences resulted by such intention or only “knowingly” which suggest that the intention to kill is not as manifest as the previous condition, as long as it results in the loss of life of others. Thus, killing by producing and organising narcotics is by no means a lesser evil compared to killing a person directly, as the perpetrators are fully aware that their action will result in the loss of life of others.

In this grave condition, States are fully responsible to protect its citizen. State has to exercise “action” by introducing a special measure of punishment. Otherwise the states might be guilty for failing to protect the lives of its thousand citizens because of its “omission” and a “failure to act” (Sustain and Vermule, 2005).

Comparative study has shown that most of the retentionist countries decided to abolish death penalty after a long crucial public, judiciary and legislative debate. Due to de jure reality of death penalty, what may be done is restricting the offence for which the death penalty is allowed under the law. Quoting the analysis from The Jurist of Asia Pacific Forum, ultimate abolition is possible only when the basic standard in the criminal justice system is already achieved.

***

Mohamad Mova Al Afghani (http://indolawreport.blogspot.com) is the founder of Center for Law Information.

Pan Mohamad Faiz (http://panmohamadfaiz.blogspot.com) is the founder of Institute for Indonesian Law and Governance Development.

Death Penalty in Indonesia


CONSTITUTIONALITY OF DEATH PENALTY
IN INDONESIAN NARCOTICS ACT

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.