Nine Reasons to Reject Death Penalty in Indonesia

The Jokowi-JK’s administration showed a spectacle of the scaffold by executing six defendants to death for drug case in last January 2015. The spectacle continues with the Supreme attorney’s plan to execute the other 11 death row inmates, of 158 inmates who have not been executed yet. Whereas a number of morally and humanly reasons, international legal obligations, international political relations, liability to protect the citizens, show that death penalty practice is irrelevant. From those variety of reasons, the Institute for Policy Research and Advocacy (ELSAM) extracts nine reasons to reject death penalty in Indonesia:

First, it is contrary to the constitution and international human rights law. A number of national legislation provisions, particularly the 1945 Constitution as a supreme legal basis, as well as Law No. 39/1999 on Human Rights, state explicitly that right to life is a non-dirigible right. Indonesia also ratified the International Covenant on Civil and Political Rights (ICCPR) through Law No. 12/2005, and Article 6 paragraph (1) of the Law confirms that the right to life is inherent to every individual, regardless of his citizenship status.

Second, death penalty is a form of cruel and inhuman punishment. International human rights law, including the jurisprudence of courts in some countries and regions have repeatedly asserted that the practice of execution is an act of cruel and inhuman punishment that degrades a person’s dignity. Therefore, in addition to its conflict with the 1945 Constitution, it is also misaligned with ICCPR and CAT which ratified by Indonesia in national legislation through Law No. 5/1998.

Third, the fragility of criminal justice system opens opportunities for wrongful conviction. In many cases, including in Indonesia, wrongful conviction becomes inevitable in criminal legal practice. Combination of ineffective judicial control, especially against the length of pre-trial detention, the absence of unanimous vote for death sentence, ineffective appeal mechanism, as well as the need for a fair trial, has opened opportunities for wrongful conviction. Yet in the practice of death penalty, it is not possible to correct the wrongful conviction (irreversible).

Fourth, it is not in line with the direction of criminal law reform. Imposition of death penalty tends to emphasize an aspect of revenge (retributive). Yet on the other hand, criminal law paradigm has undergone a change towards restorative justice. Formally, it prominently appeared in Law No. 11/2012 on Child Criminal Justice System, as well as formulation assertions in the draft Criminal Code and Law of Criminal Procedure that will be discussed by the Executive and Parliament.

Fifth, the deterrent effect of death penalty is merely a myth. According to the conventional paradigm, death penalty is considered necessary to prevent someone from committing similar crime. Instead, a comprehensive survey conducted by the United Nations in 1988 and 1996, found an absence of scientific evidence. Even the majority of panelists and attendees at OHCR Event on Abolishing the Death Penalty 2012 said that the deterrent effect reason is over-exaggerated.

Sixth, the victim’s family experience deep suffering as a result of the execution. The suffering is not only experienced by the victim or the person who executed (the convict), but also his family (co-victims). Suffering occurs in several stages, ranging from shock, emotion, depression and loneliness, physical symptoms of distress, panic, guilt, hostility and hatred, an inability to return to normal activities, expectations, and affirmation of their new reality.

Seventh, it threatens the protection of Indonesian citizens abroad. The official report of the Ministry of Foreign Affairs has recorded that at least 229 citizens facing death penalty abroad. 131 people tangled with drug cases, and 77 others were charged with murder. The government’s austerity to continue the practice of executions, would have a major impact and influence advocacy efforts to rescue hundreds of citizens who are threatened by death penalty.

Eighth, it gives detrimental effect to Indonesia in the international community. In bilateral relations, the implementation of execution to Brazilian and Netherlands citizens resulted in withdrawal of Brazilian and Dutch Ambassador to Indonesia, which followed by a delay acceptance of credentials by Indonesian Ambassador for Brazil committed by President of Brazil. Not only that, the title of “E” – as the worst title – that is given by the UN Human Rights Committee also a concrete evidence that the international community has negative sentiments on Indonesian government’s policy.

Ninth, the international trend increasingly abandons the practice of death penalty. Amnesty International reported that up to April 2015, at least 140 countries have implemented death penalty abolitionist policy, either it is in law (de jure) or in practice (de facto). While countries that still apply and run practice of death penalty amounted to 55 countries.

Jakarta, April 12, 2015