Wednesday, August 13, 2008

Perdebatan Hukuman Mati di Indonesia (2)


Ahmad Qisa'i (Jakarta) and 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.

Second, they argue, the decision by the Indonesian government to ratify the ICCPR (International Covenant on Civil and Political Rights) into law No. 12/2005 makes the abolition of capital punishment mandatory for Indonesia, if it wants to move forward in this globalized world.

Third, Article 28I (1) of the 1945 Constitution guarantees the right to life of each and every Indonesian citizen, in line with the ICCPR and law No. 12/2005. Retaining the death penalty in Indonesia's penal code (KUHP) is therefore a contradiction and proof of the inconsistency in Indonesia's system of constitutional laws.

Finally, on the question of justice for the victim, abolitionists argue that punishing the perpetrator with death does not do justice to the suffering caused by the crime itself. Life imprisonment will, in their opinion, bring more justice to the victim since it will amount to multiple forms of misery -- both mental and physical -- for the perpetrator.

Retentionists, those who support the use of capital punishment in Indonesia, argue Indonesia is a sovereign, independent state that has the constitutional right to define the class of serious crimes and the proper punishment for such crimes, even though it ratified the ICCPR. The ICCPR, they say, provides this option and has nothing to do with Indonesia's future in this globalized world.

Furthermore, even though Indonesia's Constitution guarantees the right to life of each and every citizen, that same document gives the state the right to take life if -- and only if -- such an action guarantees the recognition and respect of the rights and freedom of others.

Moreover, retentionists say, the claim of inconsistencies in the Constitution has been obviated by a ruling recently issued by Indonesian's Constitutional Court -- Decision No. 2-3/PUU-V/2007. According to the ruling, no inconsistency exists with respect to this matter and Indonesia therefore requires capital punishment for crimes deemed serious under international law.

Those in support of capital punishment say it provides justice for any serious crime committed. However, review of the legal process is necessary to arrive at a justifiable final conclusion on applying capital punishment to such offenses. A competent legal system and judges play the most important role in this matter.

In our view, since it has been officially interpreted as constitutional, capital punishment should still be used in Indonesia. Moreover, ratification of ICCPR does not mean Indonesia cannot decide on its own which of its laws are applicable, especially with respect to capital punishment, which is a deterrent to the perpetrators of serious crimes.

Even though the majority of the world's nations have approved the abolition of the death penalty (129 out of 196), being in the minority on this matter does not leave Indonesia incapable of fitting into the new world. As a sovereign nation, Indonesia has the right to decide its own future.

Everyone has the right to live, perpetrators and victims alike. The Constitution guarantees that right and, in our opinion, the state and its citizens must respect and uphold this basic human right.

With a democracy in place that allows transparency and with modifications and improvements to its legal system, Indonesia should have no trouble deciding the question of justice and the use of capital punishment. The debate surrounding this issue only strengthens it as a democratic society.

Ahmad Qisa'i has a Ph.D. in political science from Aligarh Muslim University in India and works for the Security and Justice Governance Cluster at the Partnership for Governance Reform.

Pan Mohamad Faiz has an M.C.L. from the law faculty at the University of Delhi in India. He currently works at Indonesia's Constitutional Court.


Rob Baiton said...


Interesting article. You should expand it and publish it (if you have not done so already).

For me this is not a question of the right to life. In reality all arguments based on the ICCPR are destined to fail because a State where the death penalty is already on the statute books can keep.

This might make for some interesting banter about it running counter to provisions elsewhere on the right to life. But, it remains the case that the hypocrisy of right to life and right to kill run parallel in a limited way in international law.

For me the issue is one of deterrence. Does the death penalty really act as a deterrent to crime? There are no statistics as far as I know that stand up to scrutiny on this front that the ultimate penalty acts as the ultimate deterrent.

If people were deterred by the death penalty then why does one not make the death penalty applicable for all crimes. The simple logic being here that if people are scared of being sentenced to death then they won't commit crimes. Wouldn't this allow us to live in a crime free world?

Once again, a thought provoking piece.

Joel Backwell said...

While I appreciate the sentiment behind your article, part of it is simply wrong:

You say that, "according to the ruling, no inconsistency exists with respect to this matter and Indonesia therefore requires capital punishment for crimes deemed serious under international law."

Actually, while the Court may have ruled that Indonesia requires capital punishment for drug crimes, these are NOT deemed serious under international law.

I agree Indonesia has the right to decide its own future. It is unfortunate that it has chosen a future that retains such a barbaric punishment within its criminal justice system.

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