A Moratorium on the Death Penalty Should Be a Priority for The Government of Indonesia
On Tuesday, May 8, 2018, located at Hotel Santika Jakarta, the “National Conference of 20 Years of Reform: Crime and Punishment in Indonesia” was held. The conference was convened in cooperation with the Commission for the Disappeared and Victims of Violence (KontraS), Imparsial and LBH Masyarakat with National Commission on Human Rights (Komnas HAM) and supported by Anti Death Penalty Asia Network (ADPAN) and Ensemble Contre La Peine De Mort (ECPM). The National Conference was attended by a number of stakeholders ranging from the Ministry of Justice and Human Rights, former Members of Parliament, National Commission on Violence Against Women, Ombudsman RI, representatives of foreign embassies, academics, forensic team of Yusman case to civil society groups and families of death row inmate. The purpose of the National Conference was to create the space for civil society groups, both at the National and International levels, to discuss and share perspectives with the Government and Parliament on the practice of crime and punishment in Indonesia, especially against the practice of the death penalty in Indonesia.
The practice of the death penalty in Indonesia is still very complicated and often becomes a debate that raises the polemic at the national level and affects our standing internationally. The reason is that despite the clear global trend to end executions, Indonesia continues the execution of its death row inmates. The current government, led by the President of Indonesia Joko Widodo, has declared war on drugs by purportedly measuring the number of Indonesian people who die every day because of drugs. President Joko Widodo’s statements amount to a flat rejection of all requests for pardon filed by death row inmate for narcotics cases by the President of the Republic of Indonesia. As a result, during 2015 – 2016, it was recorded that 18 (eighteen) death row convicts were executed even though the executions received criticism from various circles both nationally and internationally. The criticisms included that the executions violated a number of legal procedures, and focused on the discovery of alleged “unfair trials” inflicted on some of the death row inmates.
Families, lawyers and civil society have been advised of violations of legal procedures and alleged “unfair trials” which were experienced by a significant number of death row inmates., Complaints range from short notification of impending executions of death row inmates, where they and family receive less than the prescribed 3 x 24 hours notice (as stipulated in Law Number 2 / PNPS / 1964 on Procedures Criminal Justice Imprisonment by the Courts in the General and Military Courts); lack of experienced legal advisers capable of defending the rights of death row inmate; the absence of a qualified language interpreter; allegations of torture practices on death row inmate; the practice of age manipulation, where ‘under age’ prisoners are sentenced as adults; (I cant understand these); and verdicts affected by racial discrimination.
The findings based on the above complaints have never been taken into consideration by the Government of Indonesia, which should conduct a thorough evaluation of all these complaints and death sentences in Indonesia. In the current revision of the Indonesian Criminal Code (RKUHP), the Government of Indonesia has added 26 (twenty-six) new articles that have the maximum penalty, namely the death penalty, including among them offences of narcotics, terrorism, treason and corruption. Although in the RKUHP, the death penalty is used as an alternative punishment, the application of this alternative punishment still causes confusion and a lack of a guarantee of legal certainty for death row convicts. This is because there is a requirement for the death row inmate to undergo a waiting period of 10 (ten) years before it is decided whether the prisoner is declared eligible to have his or her penalty reduced from death penalty to life or maximum of 20 years imprisonment. In this case, the subjectivity in evaluating or determining the worthiness of death row inmates for a reduction of punishment shall be laid in the hands of the Government. This must result in the absence of a guarantee of legal certainty for the death row inmate and the possible unjust enactment of 2 (two) punishments for the death row convict, who is first the imprisonment for 10 (ten) years and then secondly being executed thereafter.
From this National Conference event, the important issues related to the application of the death penalty in Indonesia, including the still weak criminal justice system in Indonesia, have been thoroughly discussed and resulted in a number of recommendations to be made to the Government of Indonesia in relation to abolishing the practice of death penalty, including:
Firstly, the Government of Indonesia must conduct a moratorium on the death penalty as a criminal punishment before leading to the complete abolition of the death penalty because it is contrary to the constitution particularly in Article 28I of the 1945 Constitution, in particular it is also contrary to a number of laws such as Law No. 39 of 1999 on Human Rights (Article 4) as well as Law No. 12 Year 2005 on Ratification of International Covenant on Civil and Political Rights.
Secondly, in view of the cases of death penalty in Indonesia which have proved to be a violation of legal procedures and because of the alleged “unfair trial” experienced by too many death row convicts, there must be a correction and a thorough evaluation by the Government of Indonesia assessing and considering all the demands and the unreliable verdicts handed down to death row convicts. In particular, the Government of Indonesia should also evaluate the Attorney General’s Office regarding the executions in Indonesia that have been said to violate applicable legal procedures.
Thirdly, the Government of Indonesia should make serious reforms and monitor the criminal justice system in Indonesia in order to comply with fair, impartial judicial standards and refer to universal applicable universal human rights standards. We also urge the Government of Indonesia to take firm action against law enforcement actors involved in corrupt, manipulative or arbitrary judicial practices in cases of death penalty in Indonesia.
Fourthly, the Government of Indonesia should be able to provide access to adequate legal assistance to death row inmates so that the potential for violations of legal procedures and alleged “unfair trials” could be avoided. To that end, the Government of Indonesia can establish cooperation and communication with various stakeholders such as foreign embassies in Indonesia, advocacy organizations in Indonesia, as well as civil society groups who have both the experience and the special understanding in providing assistance to death row inmates in Indonesia.
Jakarta, 9 May 2018
Anti Death Penalty Asia Network (ADPAN)
Ensemble Contre La Peine De Mort (ECPM)
National Commission on Human Rights
Commission Against Dissappearances and Victim of Violences (KontraS)