ICJR Delivers 6 Recommendations on the Death Penalty

On the 10th of October, the World annually commemorates the Day against Death Penalty with the main call to oppose the death penalty practices which is an uncivil punishment and has been eliminated by many countries in the World. Indonesia is one of the few countries that still apply the death penalty for a variety of reasons, it still a positive law to the government policies that still allow this kind of punishment to be applied.

Referring to the ICJR’s 2017 Observations, the political move by the Government indicates that it is still pro-Death Penalty. Although there are several government measures that should be recognized as a step forward in relation to Indonesia’s international stance. The following is the policy map in Indonesia throughout 2017:

First, the trend of the prosecution and imposition of death penalty in Indonesia remains high. From January to September 2017, there were 44 death penalty trials. Of that total, there are 38 death penalty prosecutions, 27 death penalty rulings delivered by the Judges whether the convicts initially prosecuted to death or prosecuted with another punishment, and 24 rulings in which both of the Prosecutors and Judges were demanding and imposing death penalty.

From the type of case, throughout 2017 Narcotics cases are the most one with 28 cases, followed by murder with 15 cases, and one case of sexual violence against children resulting in death. Large numbers of narcotics cases allegedly correlate very closely with the government campaigns and call regarding the war on narcotics.

The distribution of cases in the region also shows an interesting data, Java Island is still the place with the most death penalties with 29 cases, followed by Sumatra with 12 cases, Kalimantan 2 cases and Papua with 1 case.

Second, Indonesia supported 2 (two) recommendations in the Universal Periodic Review (UPR) 3rd Cycle in May 2017 at the United Nations. Indonesia had the opportunity to receive recommendations from all of the UN member states on human rights issues in Indonesia. This process is the only mechanism by which countries are given the opportunity to discuss and make recommendations to other countries for the advancement of human rights.

In the 3rd Cycle UPR for Indonesia, there are 13 recommendations related to the death penalty. Interestingly from this UPR result, 2 of the 13 recommendations related to death penalty enjoy the support of Indonesia.

Both of these supported recommendations are to consider establishing a moratorium on the executions in Indonesia and to ensure the right to a fair trial the right to appeal for persons sentenced to death.

In addition to the UPR process, Indonesia’s international stance on the death penalty is also reflected in the UN Human Rights Council (HRC) Resolution. On 29 September 2017, the 36th Session of the HRC General Session discussed a draft Resolution which contain refusal of the use of death penalty as a sanction of the criminal acts of Apostasy, Blasphemy, Adultery and Same-sex relations. In some of the voting on the Human Rights Council Resolutions on the Question of Death Penalty, Indonesia has always been in the Against position, but in this Resolution Indonesia voted for Abstain.

Out of the world political stage, Indonesia’s giddy attitude about the death penalty mostly felt when Indonesia fought for its citizens who were sentenced to death in another countries. On 10 January 2017, the Madam Foreign Minister, Retno L. P. Marsudi, stated that the Government has successfully handled the release of 71 Indonesians from the death penalty. The claim for the release of Indonesian citizens from the death penalty that was seen as a success indicates that Indonesia is inconsistent with regard to the application of death penalty. Fighting against death penalty abroad, but conducting executions in the country. This condition also adds to the burden of Indonesia’s politic abroad where Indonesia must fight for the life of its citizen while also executing its own and foreign citizens in the country.

Third, the increasing number of Bill of laws that legitimizes the death penalty. After the emergence of the Government Regulation in Lieu of Law No. 1 of 2016 or known as ‘Perppu Kebiri’, the Government of Indonesia continues the formulation of laws that still regulate death penalty. Throughout 2017 there is a potential for the addition of types of crimes that can be sentenced to death, which come from the Bill of Criminal Code (37 types of crime), Anti-Terrorism Bill (2 types of crime) and the Bill on the Elimination of Sexual Violence (one type of crime recommended by the Government).

The potential of the increase of crime with death penalty as punishment indicates that there is a new phenomenon, on the one hand there is a tightening of capital punishment which planned to be a special criminal alternative in Penal Code Bill, but on the other hand the emerging new types of criminal acts that provide death penalty. This is not in line with the international human rights law, especially the limits of criminal acts that can be charged with capital punishment.

Fourth, the President’s move to reject the clemency application of the death sentenced convicts in narcotics case is contradictory to the Constitutional Court Decision and the Law on Clemency. Based on Constitutional Court Decision No. 56/PUU-XIII/2015, in the case of issuing a Presidential Decree on the clemency, the President shall refer Article 11 Paragraph (1) of the Law on Clemency, which clearly states that the consideration given by the President is a reasonable consideration. The Constitutional Court asserts that the Consideration must be obtained through a thinking process that is done perfectly.

When the President rejecting the clemency application especially from death penalty convicts of narcotic cases, it does grow questions, because it can be seen that the President does not make a reasonable consideration on a case by case basis, or turning a blind eye to the humanitarian considerations that may lie behind every case. Philosophically, clemency is more humane because it is a form of compassion or forgiveness given by the Head of the State to a convicted person.

So if from the beginning the President has turned a blind eye and reject all of the clemency applications of the death penalty convicts of narcotic cases, this is obviously in conwflict with Article 11 paragraph (1) of Clemency Law and the Constitutional Court Decision No. 56/PUU-XIII/2015.

This situation is even aggravated by the Supreme Court Decision No. 568 K/TUN/2016, the Supreme Court declares that the Presidential Decree on the clemency of the death penalty convicts is an information that shall be secreted from the general public. This Supreme Court decision annulled the Decision of the Public Information Commission (KIP) No. 58/XII/KIP-PS-A-M-A/2015 that provides that the Presidential Decree concerning the rejection of clemency application of the death penalty convicts is an open document for the public.

Fifth, the Supreme Court still has not revoked the Supreme Court Circular No. 7 of 2014 which limits the right of the convicted person to seek legal remedies more than once, pursuant to the Constitutional Court Decision. The Supreme Court has failed to evaluate the Supreme Court Circular No. 1 of 2012 which resulted in the limited access of the convicted persons in filing a request for a review.

Regarding the Supreme Court Circular No. 1 of 2012, ICJR understands the conditions under which the Supreme Court wants to ensure that the person applying for a review is not a fugitive, but regulating that the convict who must be present in the district court when filing a review will have a major impact on the access of the convicted person to file the review itself.

Being present when applying for a review is certainly complicated, recalling the permission process that must be done if for example, the applicant is a convicted person in the prison. Thus it is requiring a legal attorney to at least take care of the administration and permit out of prisons, this will have an impact on the large cost burden. This costly practice is, of course, contrary to the principle of low cost in criminal justice. Also, of course, it should be noted that not all convicts, especially death row inmates, come from economic class who are able to cover the enormous cost of applying for the review.

Sixth, among all of the pro-death penalty policies, there was a case that revealed the inability of the government to guarantee a fair trial and the were also arbitrary acts committed to the death row, namely:

- The case of Yusman Telaumbanua who finally came out of prison on 17 August 2017 after he received commutation by the Supreme Court and changed the death penalty to a 5-year of imprisonment.

Yusman was still a child when he was sentenced to death, while in a condition not able to speak Indonesian, Yusman was assisted by a lawyer who asked the Judge to impose capital punishment for him. In his confession, Yusman said that he was tortured by the Police to admit that he was 19 years old. He had earlier insisted that he was still 16 years old when he was charged with murder in Nias, North Sumatra.

- The final result of Indonesian Ombudsman Examination of Humprey Ejike Jefferson execution on the third wave death execution on 29 July 2016 (Report No. 0793/LM/VIII/2016/Jkt). LBH Masyarakat was assisting him as his legal council and filed the report.

The Ombudsman has concluded that there is a maladministration in Humprey’s case. The Ombudsman stated that the Execution should not be done because Humprey was in the process of seeking a pardon, which provided on Constitutional Court Decision No. MK.107/PUU-XIII/2015 and Article 13 of Law Number 2 Year 2002 Jo. Article 5 of 2010 of the Clemency Law states that “For the death row convicts, lawyers or families of convicted persons applying for a pardon, capital punishment cannot be executed before the Presidential Decree on the rejection of the petition for pardon is received by the convicted person.” The execution should also be done 72 hours after a notification, whereas in its implementation, Humprey’s execution was done before the correct time as provided under the laws and regulations. The rejection of Humprey’s application of the court ruling review is a form of discrimination because the Court rejected Humprey’s review for reasons that violate the laws.

In relation to these 6 conditions of the implementation of the death penalty policy above, ICJR recommends several matters, as follows:

1. President Joko Widodo to immediately evaluate the performance of the Attorney General, particularly regarding the violation of procedures and maladministration against the third wave execution based on the Ombudsman’s decision. In addition, the Government should immediately conduct an evaluation of the two previous executions to see the potential for other violations.

2. Under conditions of uncertainty, the Government to immediately establish a moratorium on the execution to avoid increasing the potential human rights violations.

3. Under conditions of law enforcement and judiciary that are still unable to guarantee fair trial and protection of human rights, the Government and the Supreme Court must establish a moratorium on the use of death penalty. The prosecutor and the Supreme Court can commute the penalty to next highest one, life imprisonment.

4. Based on the facts that there are human rights violations found in some of the death penalty cases, the Government must establish an independent team to conduct an examination and review of the death penalty rulings to see the potential of whether there were unfair trials and mistakes when dropping the capital punishment.

5. Requesting the Supreme Court to immediately revoke the Supreme Court Circular No. 7 of 2014 which had an impact on the constitutional rights of death row convicts to file for a review, the highest legal remedy. The Supreme Court to evaluate the Supreme Court Circular No. 1 of 2012 which restricts the access of death row inmates to file a review.

6. Requesting the President to give proper and written consideration in the Presidential Decree on clemency, to ensure that the President is in line with the Constitutional Court Decision No. 56/PUU-XIII/2015 and Article 11 paragraph (1) of the Clemency Law.

Institute for Criminal Justice Reform

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