A Myth Entitled: Death Penalty to Deter Crimes

Indonesia has failed to prevent crimes and moratorium of death row inmates is exigent.

Death penalty has always been triggering strong controversy. Some take a view that provision and implementation of death penalty is in contradiction with rights to live, a non-derogable human rights and cannot be limited in any way at any circumstances. The issue remain; death penalty is still become part of criminal system in Indonesia in which regulated under Criminal Code Law (Kitab Undang-Undang Hukum Pidana – KUHP), hence at positivism’s perspective, death penalty is a legal procedure and in accordance with laws. Institute for Criminal Justice Reform (ICJR) and Lembaga Studi dan Advokasi Masyarakat (ELSAM) are in clear standpoint to oppose the implementation of death penalty.

Based on gathered reports, there is at least 189 convicts has been sentenced to death since 1987, where 164 from this number are currently waiting for the execution by General Attorney in 2015. Surprising news from General Attorney, who announced the execution of inmates on drug-related offense will be held on January 18th, 2015, from previously was set on January 22nd, 2015. The execution will take place in two different locations, namely Nusakambangan and Boyolali, against 6 convicts (4 males and 2 females) – who had their clemency application rejected by President Joko Widodo on December 30th, 2015. In detail, the convicts are: Rani Andriani (Indonesia), Daniel Enemuo dan Namona Denis (Nigeria), Ang Kim Soei (Belanda), Tran Thi Bich Hanh (Vietnam), and Marco Archer Cardoso Moreira (Brasil). According to statement of General Attorney, the January 18th will be the first wave of execution, leaving the rest of death sentenced convicts to wait for theirs at any time within this year.

The decision to execute the convicts envisaged the absence of government’s commitment on human rights, specifically in protecting right to life. Moreover, for the last couple of year the government has seemed to excessively apply the death penalty for several crimes. In 2013 alone, based on the data gathered from General Attorney, there were 5 row inmates has been executed. This is contrast to the current international situation that shows a moving trend towards elimination of death penalty.

The implementation of death penalty pictured a willful blindness action by the government regarding several contradiction and risks on the application of death penalty. There are at least three main reasons as to why the death penalty is no longer relevant to be implemented in Indonesia. First, death penalty is in contradiction with the concept of right to life stipulated in the constitution. Second, the implementation of death penalty is still problematic due to the corrupt justice system. Third, the death penalty is not in line with the purpose of punishment, which is a corrective tools and measure, not as media of revenge.

Besides, in 2015, the government has planned to formulate Draft Bill on Criminal Code Law (RKUHP), which is actually has been set to be the priority legislation program at the House of Representative. Noteworthy that KUHP has been the ground to impose death penalty, whereas under the RKUHP, the government aims to limit the implementation of death penalty.

Article 87 of RKUHP determines that death penalty is an alternative option and constitutes the last resort to protect the society. The impression to limit the death penalty is further embodied in Article 89 which essentially stipulates that the implementation of death penalty can be postponed by imposing 10 (ten) years of probation period, provided: (a) the reaction from public to the convicts is not massive; (b) the convict shows remorse and prospect for correction; (c) the role of the convict in the whole criminal offense is not substantial; and (d) there is reason to relieve.

Additionally, if the convict, during the probation period, shows commendable action and attitude, the sentence may be changed to life sentence or imprisonment for maximum of 20 (twenty) years. However, if during the probation period failed, the execution can be performed after the clemency application is refused by the President.

Furthermore, Article 90 of RKUHP provides that if the clemency application is refused and the death sentenced is not executed within 10 years, not because the escape of the convicts, the sentence can be changed to life sentence.

Therefore, by aiming for the better prospect of RKUHP, especially in light of the death penalty, ICJR and ELSAM recommend the government to perform moratorium on execution of death penalty convicts, at least until the discussion of Draft Bill on Criminal Code Law is concluded at the House of Representative, to maintain the consistence of government’s policy on death penalty matter as stipulated in Draft Bill on Criminal Code Law.

ICJR and ELSAM also calls for the government to immediately postpone the execution of six row inmates of drug-related offence and consistency performing moratorium of death penalty as recommended by ICCPR committee. Moratorium of death penalty will consequently improve the government’s position in international level. Moreover, Indonesia is currently facing the same issue as at least five to seven Indonesia’s migrant workers in Saudi Arabia, Malaysia, United Arab Emirates, and Hong Kong are also sentenced to death. Critizim from the government on the implementation of death penalty of its citizen in overseas will be more penetrating if Indonesia shows fairness action in strengthening the application of death penalty.

Finally, we also calls for the government to minimize the use of death penalty charge for criminal offense as the entry point to eliminate death penalty from all criminal offensive punishment. Such elimination is non-negotiable price to be performed. First, upon the execution of death penalty, no room left to fix any judicial error (error judiciaire) as the convicts has dead. Second, the implementation of death penalty has never been in parallel with the objective to deter crimes as there is no scientific-based statistic to proof this theory. Deterrent effect, which becomes the strongest rationale to support death penalty has never been proofed in Indonesia or in other countries. United Nation empathized that there is no support to convince the argument claiming that the death penalty may reduce the criminal rates.

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