ARTICLE

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Is the death penalty fair? Is it humane? Does it deter crime? The answers to these questions vary depending on who answers them. Those who are against the death penalty usually argue that such punishment fails to rehabilitate and discourage crime. They also believe that prison keeps dangerous criminals away from society just as well as having them executed. On the other hand, those who support the death penalty believe that it is the ultimate weapon against increasing crime rates, since it is human nature to fear of death.

It has been reported that there are around 100 convicts currently on death row in Indonesia. At least 60 of them were sentenced for drug offenses, which at the moment is dominated by foreigners. Recently, the processes related to the execution of two (2) Australians, Andrew Chan and Myuran Sukumaran, who were both sentenced to death by firing squad for drug trafficking, have raised protests from people and the government of Australia. Domestically, many Indonesians have different opinions on whether or not the government should continue to implement the death penalty. It seems that the controversial stories of the death penalty always attract the public's attention.

INDONESIAN LAW ON DEATH PENALTY

In Indonesia, the death penalty can be applied to various criminal offenses. There are fourteen (14) different laws with the death penalty as a discretionary punishment. Such major offenses include: (i) production, transit, import and possession of drugs (Law No. 35 of 2009 on Narcotics); (ii) premeditated murder (Art. 340 of Penal Code of Indonesia); (iii) corruption under 'certain circumstances' (Law No. 31 of 1999 on Corruption); (iv) acts of terrorism (Law No. 15 of 2003 on Combating Criminal Acts of Terrorism); and (v) gross violations of human rights, including genocide and crimes against humanity (Law No. 26 of 2000 on Human Rights Courts). The reports indicate that in practice the death penalty is mainly imposed on the commission of drug trafficking, murder and terrorist acts. Drugs offenses have accounted for most death sentences since 1998.

The Constitution of Indonesia ("Constitution") provides that every person has the right to live and to defend his/her life and existence; however the right to live and other human rights granted under the Constitution are not absolute. Article 28 (J) of the Constitution stipulates that every person has the duty to respect the human rights of others in the orderly life of the community, nation and state. As the consequence, for the sole purposes of guaranteeing the recognition and respect of the rights and freedom of others, the law may restrict the individual human rights. The law can set aside such rights if the interest to be protected is particularly important or serious.

In light of the above, the Constitutional Court of the Republic of Indonesia, in its Decision No. 2-3/PUU-V/2007 on Judicial Review of Law No. 22 of 1997 on Narcotics dated 23 October 2007 ("Decision No. 2-3/2007") and Decision No. 15/PUU-X/2012 on Judicial Review of Indonesian Penal Code dated 10 July 2012, interpreted that the inherent right to life is not absolute. Therefore, according to the Constitutional Court, the state is entitled to restrict the right to life in order to protect the rights and freedoms of others, including through the application of the death penalty. Also, the Constitutional Court based its ruling on Article 6 (2) of the International Covenant on Civil and Political Rights of 1976 ("ICCPR"), and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 ("Convention 1988") which has been ratified by Law No. 7 of 1997. The Constitutional Court argued that the death penalty may still be imposed for the most serious crimes.

FUTURE TREND

The phrase 'the most serious crimes' as stated in Article 6 (2) of ICCPR is open to interpretation. In 2006, the United Nations ("UN") rapporteur on extrajudicial, summary or arbitrary executions further narrowed the interpretation of the 'most serious crimes' by defining them as 'cases where it can be shown that there was an intention to kill, which resulted in the loss of life'. The abolitionists are of the view that sentencing people to death denies them the right to life as enshrined in the Universal Declaration of Human Rights of 1948, and execution is the ultimate, irrevocable punishment since the risk of executing an innocent person can never be eliminated. In the spirit of universality, Article 6 of ICCPR sets direction towards abolition of the death penalty by establishing state obligations to progressively restrict its use only for the most serious crimes.

There is a clear international trend away from the death penalty. According to the UN, more than 150 countries have abolished the death penalty from their laws. In an effort to abolish death penalty throughout the world, the General Assembly of the UN has adopted resolutions for a moratorium on the death penalty. It calls for states which maintain the death penalty to establish a moratorium on the use of the death penalty with a view to abolishing it, and in the meantime, to restrict the number of offenses with the death penalty. It also calls for the states which have abolished the death penalty not to reintroduce it. However, like all General Assembly resolutions, it is not binding on any state.

Despite this global trend, some countries continue to apply the death penalty on the basis that it deters crime and should be applied to a broad range of criminal acts, even when there is no intention to kill or actual loss of life. As a comparison, in the neighboring countries of Indonesia such as Singapore and Malaysia, the death penalty is mandatory for drug trafficking and the manufacturing of drugs, genocide involving the killing of any person, and other capital offenses under the Singaporean Penal Code. However, the courts are now given more discretion on whether to impose the death penalty. In Malaysia, the death penalty is mandatory for drug trafficking, acts of terrorism, and other capital offenses under the Malaysian Penal Code.

In the last 10 years, Indonesia has executed 10 people for drug offenses. Compared to Singapore and Malaysia, this number can be viewed as slightly conservative. Singapore has executed more than 80 people for drug offenses. Meanwhile, Malaysia has executed more than 50 people for similar offenses. Therefore, the 'seriousness' of a crime may vary according to national culture, religion, tradition and political context.

While the imposition of the death penalty is a legal move, the decision on whether or not to carry it out, particularly in Indonesia, is a political one. Under the new administration, President Joko Widodo, there was a hope at the beginning that the new administration will afford more respect human rights and there were signs that Indonesia would abolish the death penalty for all crimes. In fact, quite the opposite has occurred. President Joko Widodo has proven to be a staunch supporter of the death penalty, overseeing the execution of six drug traffickers on January 2015 and making several public statements that he will not grant clemency to any of the other drug traffickers currently on death row.

The number of countries that put an end to the death penalty since the late 1980s increased nearly three-fold, from 35 to 99. These notes confirm Indonesia as one of the few countries moving in the opposite direction.

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