In commemoration of the International Day Against the Death Penalty 2023, the Commission for The Disappearances and Victims of Violence (KontraS) has once again published its annual report concerning the current condition of the death penalty in Indonesia during October 2022 to September 2023. Within this period, we observed efforts to abolish the death penalty which faced significant challenges, despite Indonesia’s recent breakthrough in policy reform related to the death penalty through the Criminal Code (KUHP).
We also highlighted the continuation of imposition of death sentences and identified a total of 27 death sentences, comprising 18 for drug-related offenses, 7 for premeditated murder, and 2 for other sexual violence crimes. Furthermore, we have found that District Courts are the most frequent issuers of death sentences, with 20 sentences, followed by 3 sentences from High Courts, and 4 sentences from the Supreme Court.
Based on this data, we assess that the Indonesian government remains passive in responding to the global trend, which clearly indicates a decline in death sentences, despite its recent policy reform regarding the death penalty. We believe that the government has failed to address the structural issues surrounding the death penalty and continues to choose it as a quick solution for handling criminal cases. Moreover, there is a need for a comprehensive evaluation of the effectiveness and accuracy of the ongoing imposition of death sentences.
In addition to these concerns, we also argue that the current practice of the death penalty serves as a red carpet for perpetuating torture. This is because torture can occur due to the lack of full implementation of the fair trial principle by law enforcement. Additionally, we raise concerns about the performance of judges, as they play a crucial role in protecting the human rights of defendants in the context of the death penalty.
Furthermore, this report addresses the provisions of the newly enacted death penalty in the revised Criminal Code. In this new Criminal Code, we find that the inclusion of the death penalty as an alternative punishment should be seen as a first step towards its abolition. In the future, when the new Criminal Code takes effect, judges will no longer issue death sentences. We also highlight that under the new law, death row inmates will undergo a 10-year probation period, with the possibility of converting their death sentence to life imprisonment or 20 years in prison.
Moreover, we examine Indonesia’s position in the global efforts to abolish the death penalty. We note that currently, 112 countries have abolished the death penalty from their criminal laws, while 23 countries still have death penalty laws but have not executed any death sentences. However, Indonesia remains one of the 55 countries that still retain and impose death sentences on defendants. This global phenomenon should be a significant consideration for the Indonesian government, urging them to implement a national moratorium on the death penalty and develop appropriate measures concerning the death penalty.
It does not stop there. In this report, we assert that the practice of imposing death sentences is part of penal populism. In the past year, various criminal incidents have triggered public outrage, such as the cases of Brigadier Josua Hutabarat and Herry Wirawan. We observe that the imposition of death sentences for certain crimes is done merely to “satisfy” the public for a brief moment. We emphasize that opposing populist narratives should not be misconstrued as legitimizing or supporting criminal actions because these narratives are always oversimplified by retentionists.
Based on various notes and findings from KontraS during the period of October 2022 – September 2023, and in response to various forms of national and international pressure, KontraS has formulated several recommendations, including:
First, the Indonesian government must commit to eliminating all forms of cruel and inhumane punishment, particularly in the form of the death penalty. The government should also take serious measures to reform the criminal justice system, especially concerning the fulfillment of the right to a fair trial, as unjust processes often lead to death sentences. Another crucial aspect to be considered is the fulfillment of the physical and psychological rights of death row inmates.
Second, the Indonesian government, including the President and the DPR RI (People’s Consultative Assembly), should conduct a review of the articles in the New Criminal Code (KUHP) that govern the imposition of the death penalty. Various unclear norms should be clarified through subsidiary regulations. Death row inmates who were sentenced before the enactment of this New Criminal Code should be ensured equal access to the 10-year waiting period.
Third, on the international front, the Indonesian government should commit to a moratorium on the imposition of the death penalty in Indonesia and commit to promptly ratifying the Optional Protocol to the International Covenant on Civil and Political Rights (OP-ICCPR). Furthermore, the government should listen to various recommendations from other countries during the Universal Periodic Review (UPR) session, particularly regarding the abolition of the death penalty.
Fourth, the Supreme Court should commit to evaluating the effectiveness of imposing the death penalty to ensure that no more human lives are taken due to a flawed criminal justice system. Additionally, the Supreme Court should mainstream the principle of caution in sentencing. Gradually, the Supreme Court also has the responsibility to educate judges to shift the paradigm of punishment from punitive to more utilitarian and goal-oriented.