Indonesia: Proposed law that keeps death penalty as ‘alternative sentence’, 10 year before execution with possibility of commutation

Compromise reached on death penalty

  • The Jakarta Post

Capital punishment has been designated an “alternative sentence” in the Criminal Code revision bill currently awaiting passage in the House of Representatives, in a compromise to appease both public opinion and human rights groups.

Under President Joko “Jokowi” Widodo’s administration, 18 death row inmates, all of whom were convicted of drug-related crimes, were executed.

Fifteen of the 18 executed were foreigners, prompting international outcry and sparking diplomatic tensions between Indonesia and important allies such as Australia and the European Union.

However, despite condemnation from both foreign and domestic human rights groups, capital punishment remains highly popular in Indonesia. According to a 2015 Indo Barometer survey, 84.9 percent of Indonesians approved of sentencing drug dealers to death, while a 2016 Kompas survey showed that 89.3 percent approved of the death sentence for terrorists.

Nasdem lawmaker Taufiqulhadi acknowledged the death penalty had been a matter of ongoing debate among the lawmakers in the bill’s working committee, but said making it an alternative punishment was a “way out.”

Law and Human Rights Minister Yasonna Laoly had previously called the move “a win-win solution.”

Article 89 of the bill states: “The death penalty will be imposed as an alternative and as a last resort to protect society.”

The bill goes on to say convicts that receive the death penalty will be given a 10-year probation period, after which their sentence may be commuted to a life sentence or to a 20-year prison sentence at the discretion of the law and human rights minister.

In the current legal system, a death sentence can only be changed through the Supreme Court (MA) or through presidential clemency.

Activists acknowledged the move as a step forward, but remained adamant in their conviction that the death penalty was both inhumane and ineffective.

“It’s true that this is progress,” said Institute for Policy Research and Advocacy (Elsam) researcher Adzkar Ahsinin. “And it is probably the most realistic step that we can hope for.”

Community Legal Aid Foundation director Ricky Gunawan echoed his sentiment. “In an ideal situation, of course we hope for total abolition,” he said. “But in a country that only two years ago conducted executions on such a massive scale, this is a small step that should be appreciated.”

Institute for Criminal Justice Reform (ICJR) legal expert Erasmus Napitupulu said that adding a waiting period between conviction and execution was better than the current system, but said the bill did not go far enough.

“There are still many crimes that are eligible for the death penalty that do not meet the criteria set out in the UN’s International Covenant on Civil and Political Rights [ICCPR],” he said.

The ICCPR states that the death penalty should be restricted to only the “most serious crimes,” which have been defined as “intentional crimes with lethal consequences.”

The bill, in contrast, allows capital punishment for treason, corruption and drug-related crimes.

Erasmus also questioned the government’s and the House’s rationale for insisting on keeping the death penalty. “The government keeps saying it provides a deterrent effect. But it has never shown any evidence that the deterrent effect actually exists. It is a myth that is continually repeated.”

Adzkar agreed, saying: “We have put forward several arguments against the death penalty, but the House insists on keeping it in, often citing religious arguments.”

Erasmus said it was difficult to refute these arguments; capital punishment is allowed in the Quran, and some lawmakers saw the abolition of the death penalty as a refutation of Islamic teachings.

Ricky acknowledged the improbability of abolishing capital punishment in the current climate. “Politically, in Indonesia at this time, it does not seem possible to abolish the death penalty entirely,” he said. “It would be risky and would invite a lot of criticism, and national leadership has not made human rights a priority.”

He hoped the House would be able to clarify the criteria for sentence commutation and possibly move the decision-making power away from the executive branch. (kmt)

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