ICJR: Government of Indonesia Should Consistently Promote “Win-Win Solution” Regarding the Provisions of Death Penalty in the Penal Code Bill (RKUHP)

The government’s recommendation to alter the provisions related to the conditions of probation period for convicted sentenced to death shows that the goverment are in doubt in taking a side on this issue. The recommendation entails that the conditions shall be clearly stated in the verdict. Consequently, some convicted sentenced to death may not undergo probation period when the judge do not include the conditions of probation on their verdict.

Regulating the death penalty in the penal code bill (RKUHP) is not without controversy. The issue of death penalty has been debated by the abolitionist and the retentionist continously. Inspite of such contention, the RKUHP’s drafting team insist that capital punishment will be included in the RKUHP with a different conceptual framework.

The concept of death penalty in RKUHP is quite different with the concept in the present KUHP and other legislations. In RKUHP, the death penalty shall be set as an alternative punishment; It may be put on the charge as an alternative punishment together with another type of punishment as the primary indictment. Moreover, the imposition of the death penalty in RKUHP may be suspended for 10 years and during these period, well-behaved and well-mannered convicted may have their sentence changed into life imprisonment. The convicted are expected to repair their conduct and behaviour so that the execution will no longer be necessary and punishment involving deprivation of liberty can be imposed instead. The RKUHP’s drafting team regard such concept as a win-win solution for the endless debate between the abolitionist and the retentionist.

However, the goverment hold an internal meeting on 28 May 2018 resulting in the new version of RKUHP dated on 9 July 2018 containing an alternative provision to alter the formulation of the article 111 point (1).

RKUHP dated on Februari 2018:

(1)    The execution of the convicted sentenced to death may be suspended during probation period of 10 years, where:

  1. The convicted show remorse and can be expected to repair their conduct and behaviour, or
  2. Mitigating factors are found

Alternative formulation of the provision (dated on 9 Juli 2018)

(1)    Judge may impose capital punishment with probation period of 10 years, where

  1. The convicted show remorse and can be expected to repair their conduct and behaviour, or
  2. Mitigating factors are found

(1a) Capital punishment with probation period of 10 years stipulated on point (1) shall be clearly stated on verdict

The fact that the government changed its position indicates that they do not seriously consider the arrangement of death penalty as alternative punishment. Even they have no clear and firm position as to where to set the political direction of this issue. This is because the government overturn the mandatory nature of the probation period while they propose the conditions of probation to be ruled by the judge on their judgment. Consequently, some convicted sentenced to death may not undergo probation period when the judge do not include the conditions of probation on their verdict.

Institute for Criminal Justice Reform (ICJR) previously has criticized the wording of the article 111 point (1) putting the word “may” resulting in the provision of probation becomes non-mandatory in nature. As a consequence, the decision to put the convicted on probation fully fall under the discretion of the judge whereas such provision should be accomodated through legislation, ICJR claims.

With regards to death penalty, ICJR recommends the government and the parliament to abolish the death penalty provision in RKUHP. This is undeniably necessary because death penalty is in conflict with the right to life defined as a non-derogable right in 1945 Indonesian Constitution. Nevertheless, if the RKUHP’s drafting team insists to accomodate the death penalty provision in RKUHP, ICJR sugggests that the government at least should consistently promote the formulation of provisions that can be a win-win solution for the abolitionist and the retentionist. In addition, shall the provision of death penalty cannot be provoked, ICJR proposes the formulation of the provision death penalty in RKUHP as follows:

Article 111

(1)    Convicted sentenced to death are entitled to have the excecution suspended for 2 years

(2)    The suspension period stipulated on point (1) commences by the time the judgement legally binding

(3)    Shall the convicted show good behaviour and good conduct during the probation period, the convicted may have their sentenced changed into lifetime imprisonment by Presidential Decree after obtaining the recommendation of the Reviewer Team.

(4)    The behaviour and conduct of the convicted may be reviewed by the Reviewer Team established by the Ministry of the Law and Human Rights.

(5)    Shall the convicted fail to show good behaviour and good conduct during the probation period in accordance with point (2) and there is no way to repair, the convicted may be excecuted according to the instruction of the Attorney General

(6)    The provisions pertaining to the establishment, the duty, and the responsibility of the Reviewer Team stipulated on point (4) will be regulated by Government Regulation.

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