Inveighing Against Death Penalty in Indonesia

1

Chapter 1

Introduction

The discourse of the implementation and application of death penaltyseems to be developed during this reformation era. It has raised a question,why do the issues of death penalty get even more popular amidst thepressure to change the judiciary system, national legal system and in theera where the respect of human rights has become an urgent need anda joint-obligation in the international level.

Many kind of thesis can indeed be developed to find the answer asto why it happened. But it would be good if we can probe into howthe political nature of death penalty takes place. And, whether it wasborn from the awareness to build an authoritative legal system, or was itdeveloped to overcome the legal system that is not authoritative andbecome more distrustful instead? This problem cannot be answeredthrough a speculative analyses, which are often developed to justify theapplication of death penalty, such as that death penalty is justified byreligions; to get back what the perpetrator did; or that death penalty is ahumane act in order to end the suffering of the perpetrator.

Unfortunately, all the justificatory speculations to apply death penaltyhave indeed put Indonesia as one of the countries that has passed a lot ofdeath penalty sentences. According to reports from different internationalhuman rights organizations, Indonesia is one the countries that is stillapplying death penalty charges in its criminal judiciary system (retentionistcountry). The number of people sentenced with death penalty in Indonesiais quite high following China, USA, Congo, Saudi Arabia, and Iran.

2

INVEIGHING AGAINST DEATH PENALTY IN INDONESIA

From the data collected by Imparsial during this reformation era,which was since 1998 to December 2009, there were more or less 21death convicts who have been executed and some of whom waited formore than 10 years. Meanwhile there are 119 people who have been putin death row by the court authority and most of them are in the processof further legal efforts.

The practice of death penalty in a democratic era, of course, becomesan irony. As a state with a rule of law that respects and upholds itsconstitution it is only appropriate for Indonesia to abolish death penalty,considering that the constitution itself recognizes and guarantees the rightto life as a right that cannot be reduced in any situation and condition.But in reality death penalty as a form of cruel and inhumane punishmentis still being carried out. Although there is an international instrumentthat encourages the abolition of death penalty, but Indonesia insists toretain the existence of death penalty in this country. In that context, theefforts to abolish death penalty in this country seem to face a long andwinding road.

3

Chapter 2

The History of Death Penaltyin Indonesia: From Colonial to

New Order Regime

The issues of death penalty have never gotten a special place in thepublic discourse in Indonesia since the end of the colonial government.1The nature of debate only dwells on the philosophical level of law:between the approaches of positive law versus naturalist law; whereasoutside the political aspect, which are the sociological, historical,psychosocial aspects are seldom researched and debated by the public.General human rights contemporary study on death penalty connects allproblems concerning the relation between state policies, power, politicalinterests of the bureaucracy, class balancing and social transformation.

Michael Foucault has formulated an analytical knife to see the functionof (death) penalty in a politic and legal system and its relation with thedevelopment of science and the development of society.2 The mostimportant thing according to Foucault is that we have to discard the(exclusive) illusion of punishment, which is to reduce crimes.3 To Foucault,

1 In comparison with other countries such as the US and European countries, the debatein Indonesia on the issue has gone to the extent of spliting the public opinionsbetween the pros and the cons on the issues of death penalty. In Indonesia those whooppose death penalty are still very marginal.

2 Michel Foucault provides four general rules in discussing the concept of punishment.See Michel Foucault, Discipline & Punish The Birth of the Prison, (1977), p. 23.

3 Ibid, p.24.

4


death penalty is a way to visualize that power truly exists. The tortureand execution of death penalty is a judicial and political ritual in order toexhibit that a crime has happened and that the power is in control.Execution and torture not only show the power operation, but alsoshow a justification of power.

In Indonesia, the execution of death penalty upon a perpetrator ofserious crimes or political opponents seems to be accepted as a commonevent by the society. It is considered commonplace because it is a reflectionof the weak legal consciousness of the society. In that context, it is importantto look back at the political history of death penalty in Indonesia as a basisto understand the nature of the state in applying the policy of death penalty.

A. Colonial Era: Planting the Influence of Power

The practice of death penalty in Indonesia is a legal product inheritedfrom the Dutch colonial, which is still not being corrected to this day.While death penalty is still being retained in Indonesia, the Dutch hasabolished the practice of death penalty since 1870 through a removalof death penalty charge from their penal code. Only for war crimes thatdeath penalty was still applicable in the Netherland.4

The Dutch finally abolished death penalty completely for any kindof crimes after the amendment of their Constitution on February 17,1983, which firmly stated that death penalty sentence (by judge) couldn’tbe passed.5 The consequence was to harmonize its legislation under theConstitution, including death penalty in military judiciary system.6

4 Jan Remmelink, Hukum Pidana: Komentar atas Pasal-Pasal dari Kitab UU Hukum PidanaBelanda dan Padanannya dalam Kitab UU Hukum Pidana Indonesia, [Criminal Law: Commentson Articles under the Netherlands Criminal Code and Its Compatibility with theIndonesian Criminal Code], (Jakarta: Gramedia Pustaka Media Tama, 2003), p. 459.

5 Ibid.6 Ibid.

5

The fact is that the abolition of death penalty does not apply forlegal implementation in the occupied territory of Dutch Indies (now isIndonesia). As known, the colonial government since 1870 applied the‘ethical politic’ to the Bumiputra (natives). This politic had a practicalobjective for the natives to bolster up the development of colonialcapitalism. This period was known as ‘Pax Neerlandica’, which wassuccessfully put a structural basis of modern bureaucracy within thecolonial government and a foundation to build infrastructure facilitiessupport for the economic system of capitalism. The basis that wasfounded in that period still leaves its footprints to this day.

In that period, the colonial government successfully transformed thejudiciary system and judicial authority that were still very personal tobecome a more rational system. The court in the early 19th century tookplace in a building that also served as a police station, torture chamber,and prison, as well as an execution stage.7 In early 20th century there wasa physical separation in the system, both in the form of infrastructureand bureaucracy administration. The judiciary system had also run,completed with the new penal codification. This is the way in which thecolonial power was (successfully) put into the collective (social) memory.A kind of knowledge to remember all obligations toward the rulerswas planted into the mind of occupied societies, from behaving politelyto obediently paying all tributes.

The colonial regime successfully arranged the structure within the colonialsociety by emphasizing that there was a borderline for the natives that wereprovisioned in the positive legal system. Offenders or dissidents werethreatened with harsh punishments, such as death penalty or exile/deportation.The differences between this period and the previous one were: First, that apunishment should go through an administrative process or procedures of

7 Ibid.

CHAPTER 2THE HISTORY OF DEATH PENALTY IN INDONESIA: FROM COLONIAL TO NEW ORDER REGIME

6


justice; second, death penalty execution or torture punishment was carried outin a public arena but was still closed and isolated.

The fact of those policies was actually congruent with Foucault’sanalysis, which said that a change or improvement of a new legal systemis not actually designed to be more humane or ethical. That was because,the change was not for the reduction of punishment but rather to improvethe punishment, punishing with a refined violence might be punishingwith a great absolute instead.8

In fact, the Dutch colonial government at that time was evenstrengthening the death penalty practices as an effort to threaten thepeople involved in the independence movement. The application ofarticle 104 of the Penal Code that contained provisions on crimes againstthe state security or subversive acts with death penalty as a punishmentwas used to perpetuate the repressive politic. The occupying governmentalso used death penalty to protect the military industry during the wartime,especially from resistance acts of labors.

The historical records show that the colonial governmentsystematically applied death penalty on almost any kind of legal offense.In the same period of time – as stated in Foucault’s research in France –the practices of death penalty happened in the form of draconian codein occupied territories. Death penalty execution in public was stillconducted randomly and carelessly under the authority of high-rankedofficials of colonial governments. The categories of criminal offensewere made very broad, from behaving impolitely toward the masters,running away from farms/mines, to insulting rulers and prominentpersons, to not paying tax/tribute to the King, to local rebels, to pirates.A Dutch historian and archeologist, Hans Bonked, in his writing explained,

8 Foucault, Op. Cit., p. 79-82.

7

what became the center of attention was the number of death penaltythat was really high in Batavia. In the beginning of 18th century, inAmsterdam that had 210 thousands inhabitants, there were five executionsa year. In Batavia that had 130 thousands inhabitants, the number ofpeople being sentenced to death was twice as high and sometimes evenhigher.9

B. Old Order Era: Continuing Power

Post colonial governance, the stages of domestic political fightsstrengthened, criminal penalties inherited from the colonial rule remainedin use. Besides bureaucracy, the colonial state policies was still beingused, and even worse was that the implementation of them imitatedwhat the colonial regime did. All political opponents of the state, suchas the cases of rebellion in Nusantara, in which all the perpetrators weresentenced to death (RMS, DI/TII and a perpetrator of treason ofPermesta).

The Penal Code that was called Wetboek van Strafrecht (W.v.S) wasdeclared to be in force based on a provision Article II of TransitoryRegulation of the 1945 Constitution and was confirmed with Law No.1/1946 on the making of W.v.S into the KUHP (Penal Code). Theimplementation of this KUHP could be said without any change at allcompared to its implementation in the colonial era. In its developmentlater on, death penalty was not only regulated in the KUHP as a part ofgeneral crimes but the government also passed a specific legislation thatregulated death penalty.

Under the Provisional Constitution of 1950, which was also knownas the era of Liberal Democracy (1950-1959), the parliament and the

9 Alwi Shahab, “Kamar Penyiksaan di Balai Kota” [Torture Dungeon at City Hall], Republika,November 16, 2003.


8


government passed legislation that regulated death penalty, which wasEmergency Law No. 12/1951 on Fire Arms and was promulgated onSeptember 4th, 1951.

During the era of Guided Democracy (1959-1966), the legalproducts that regulate the implementation of death penalty increased.The government passed Presidential Decree No. 5/1959 on the Authorityof General Attorney/Military General Attorney in aggravatingpunishment for criminal acts that endanger the implementation of foodand clothing supply. The decree was promulgated on July 27th, 1959.Besides that, the government also passed Government Regulation No.21/1959 that aggravated the punishment for economic crimes, whichwas promulgated on November 16th, 1959.

In 1963, the government passed the Law No. 11/PNS/1963 on theEradication of Subversive Activities, which was promulgated onOctober 16th, 1963. At that time, this law was employed to silenceSoekarno’s political opponents by throwing them into the prison withouttrials. On top of that, the government also passed the Law No. 31/PNS/1964 on the Basic Provisions of Atomic Energy. In itsdevelopment, this Law was replaced with Law No. 10/1997 on NuclearEnergy and the death penalty was replaced with life imprisonment.

In that era, the government passed Law No. 2/PNPS/1964 on theProcedure of the Implementation of Death Penalty Charges. In thisLaw, the execution of death convicts is by getting shot before a firingsquad. Before this Law there was no regulation on how an executionshould be carried out, except the practice of death penalty before afiring squad for military crimes, which was also inherited from the Dutchcolonial. Soekarno was actually once said openly that he did not like thepractice of death penalty, but in fact, his saying was not successfullybecome a consideration in changing the state policies on the issue.

9

C. New Order Era: Regime Consolidation

The overthrown of Soekarno regime by the leader of New Orderregime, Soeharto, did not stop the practice of death penalty. In early ofhis leadership, many people who were accused of getting involved inthe movement of the Communist Party of Indonesia (PKI) weresentenced to death. It could be seen from the inclusion of PKI’s labor/peasant organizers as targets of cleansing operation against the PKI.10

The strategy of the New Order regime was similar with that of thecolonial regime. This regime practiced a war method in resolving socialand political conflicts (military social and and political roles) and in preparingthe new legal foundation that could protect the interests of capitalism. Forthat objectives, on one hand the regime wanted to appear as a single rulerthat used violence and on the other hand the regime showed a friendly(civilized) face by running a legal reformation by forming some legislations,although in fact it was focused more on the interest of foreign capitals.This strategy actually created an internal contradiction within the regimeitself, which eventually caused many dilemmatic decisions for the rulingregime. First, the interests of the regime to appear as effective inmonopolizing the power needed a kind of process of legal justificationto be an umbrella for many extra judicial actions. Second, on the otherhand, the regime had to appear as a ruler that respects and acta accordingto the laws, and also as a “hero” or thugs who was able to conquer itspolitical opponents, by any means necessary, in a fast and effective manner.

10 Many amongst the local worker and peasant leaders were actually did not have a structuralrelation with the Indonesian Communist Party (PKI). Instead they were more closelyrelated to other parties or even non-partisan. They were seen as close to the PKI becausethey advocated the same issues as the PKI. This was recorded in the case of the executionof Mohamad Munir in 1985. The reason of the execution was not because he was theformal leader of workers but because he was accused of conspiring against thegovernment. See Marlies Glasius, Foreign Policy on Human Rights: Its Influence on Indonesia underSoeharto, (The Netherland: Doctoral Dissertation, Utrecht University, 1999), p. 111.


10


It was not surprising if the history of the founding of New Orderregime was marked with extra judicial killings and arbitrary detention.In a short time, the stooges of the regime became a direct part of thejudicial section: as attorneys, judges and executioners. The procession ofdeath penalty in this era was under the authority of Extraordinary MilitaryTribunal (Mahmilub). The Mahmilub itself actually was show trial witha goal to punish and finish off all of political enemies of the NewOrder (Soeharto). Political enemies were equal to enemies of the state.The message that the regime wanted to convey was that they havesuccessfully controlled the situation and acted according to the laws andconstitution. Whoever violate or was against the regime would meet thesame fate as convicts. Hence Mahmilub was none other than a justificationprocess for the ruler. The impact of it was the institutionalization ofpsychological fears and a feeling of powerless among civilians becauseof how powerful the state power was. What was said as legal reformationfrom this regime in reality was that they produced more regulations/legislations that became instruments to preserve fears.

To differentiate them with the Old Order regime and in order todraw sympathy from the public at that time, the New Order regimeused Law on the Eradication of Subversive Activities, which providesprovisions on death penalty as one of the instruments to chargecorruptors, although none have been convicted with it.

During the authoritarian regime of Soeharto, the rulers had a needto criminalize their political opponents. Death penalty formally becamethe state policy to effectively control the political structure. For the rulers,the main concern here was to hold ‘arrogant court theater plays’. Theexecution of punishments of convicts in front of the public was notthat important, but what’s more important was the stage for the politicof violence to constantly being held so that his political opponents wouldbe afraid psychologically. Second, the practice of death penalty also

11

emphasized on the premise that a political dissident was an enemy to thestate, in which there was a personification of Soeharto’s interests and thestate’s interests. The fear effect was being perpetuated by this authoritarianregime. The trick was by letting the bureaucratic inertia that was part ofthe intimidation of the regime to prolong.

The interesting thing from this period was the low number of crimes,especially in the 1970s. How did this happen? First, this was the result ofthe symbiotic relationship between groups of criminals and the militaryregime. The elements of crime became relatively organized and wasgiven an ‘appropriate’ place in the politic. Second, the state of emergencythat was still being imposed in big cities as an impact of Malari riot in1974 and a series of student demonstrations in 1978 had a role to suppressthe crime rate.

The death penalty procession for convicts in criminal cases in that periodwas fairly low. The most popular one was the execution of Kusni Kasdut(1980). The event was intended for by the regime to re-expose death penaltyto the public.11 It was because at the end of the 70s, there was a tendency ofincreasing crime rate. Besides that, in that period many corruption casesemerged, which disrupted the legal system such as court mafias.12

In the middle of disrupted situation, the regime had to remind thepublic that they were able to control the situation while still giving attention

11 Death penalty re-appeared in 1982. There was no death penalty cases eversince thecleansing operation against the PKI. It means there was a vacuum of more than 12 yearin which there was no death execution of criminals.

12 One of deviance is negative competition between the authorities of presecutor andpolice before 1981, especially in corruption cases. See Hamid Basyaib, Richard Holloway,and Nono Anwar Makarim, “Mencuri Uang Rakyat: 16 Kajian Korupsi di Indonesia” [StealingMoney from the People: The 16 Essays on Corruption in Indonesia], in Book 2, Pesta Tentara,Hakim, Bankir dan Pegawai Negeri [Parties of Soldier, Judges, Bankers and Civil Servants],(Jakarta: Yayasan Aksara, 2002), hal. 25.


12


to daily matters at the same time. On the other hand, prisons in thisperiod had a very limited capacity considering the prisons held morepolitical prisoners. The influencing factor was the fact that the justiceapparatus (attorneys, police and judges) made compromises withcriminals. It was not surprising when there were criminal leaders got outof prison in a short time.

Furthermore, the practices of the New Order (Orba) regime to winthe election needed special political operations to gather votes. Politicaloperation as such involved an intensive cooperation between politicians(Golkar), bureaucrats, academics, military officials and organized thugs.Nearing 1982, the political fights between the highest-rank leaders ofthe regime heated up, and it disturbed the security and social order. Asthe result, people who were allegedly going to be removed from thepolitical arena were organized thugs or gangs. The reprisal of this wasby spreading criminal conducts. The reaction from the rulers was bysetting up a ‘death squad’ that consisted of the element of military elites.The squad was publicly known as Mysterious Gunmen (Penembak Misterius– Petrus). What was unique from that reaction was that the decision todo it was actually against the new legal system they just set up (Law No.8/1981 on the Criminal Procedure Code). In the beginning the rulersdid not admit the actions. The situation changed after Soeharto explicitlyadmitted it in his semi autobiography. In the book, he admitted that heauthorized the illegal actions. It proved that Soeharto was a single playerin the political arena who successfully consolidated his power from 1988to 1997.13

From 1985 to 1997 there were some cases of death penalty executions,with political characters being exposed. The first one was the execution

13 One of the Prior to 1998, Soeharto was more powerful collectively throughcollaboration with his closest allies.

13

of the convicts of 1965 incident, such as Sudkarjo and GiyadiWidnyosuharjo. The official reason from the government was becausethey did not show regret of what they had done.14

Furthermore, the Soeharto regime took a popular policy by passingthe Law No. 22 Year 1997 on Narcotics and Law No. 5/1997 onPsychotropic. The birth of those legislations was a reaction to the increaseof the smuggling and dealing drugs as well as substance abuse duringthe decade of 1990s. The incapability of the government in handling thedrugs-dealing problems made them think that it was necessary to includedeath penalty as one of the punishments for this crime. The governmentmirrored the practices carried out by the Malaysian and Singaporeangovernments in eradicating the circulation of drugs.

14 As stated by Moerdiono, the former State Secretary, in The Jakarta Post, “RI, Holland,Agree to Boost Ties,” November 1, 1988.


14


15

Chapter 3

Policies and Practices ofDeath Penalty in The

Reformation Era

The start of reformation agenda in the aftermath of the fall ofSoeharto on May 21st, 1998 did not make death penalty disappearedfrom the Indonesian legal system even though the Anti-Subversive Lawwas finally being abolished due to the demand from different layers ofthe society. In the era of transitional democracy, all practices of politicaljustice and judiciary procession plays should be excluded from thepolitical system that was more democratic. Many thought that themanagement of politic of violence and politic of fear by imposingdeath penalty would be gone based on the assumption that all pastpolitical actors would be eliminated from the political arena. But thereality spoke the otherwise.

After five years into the reformation process, all past political actorswere still in power and adapted with the new condition. Meanwhile thejudiciary system remain lack of power, corrupt, unable and far from thesense of justice. As a result, there was no change of justice norms within thejudiciary system. Although the new political system seemed to be moredemocratic and open – for instance: the freedom of press was relativelyguaranteed – but the practice of death penalty was still carried out againstserious crimes such as drugs dealings, and also against those who wereconsidered as the enemy of the state such as in the cases of separatist rebels.

16


The Habibie administration, although it was a brief one, was veryproductive in making legislations, issuing the Law No. 31/1999 on theCorruption Eradication to replace the Law No. 3/1971. This law definitivelycharges corruptors with death penalty. Even more phenomenal was theLaw No. 26/2000 on Human Rights Court also regulates death penalty,notwithstanding the practice of death penalty was not used anymore in theinternational legal system –such as the Rome Statute of the InternationalCriminal Court (ICC) that has been recognized as the international standardto prosecute perpetrators of gross human rights violations.

The recent phenomenon was when the government quickly responded tothe terrorist’s threats by drawing up and passing the Anti-Terrorism Act (LawNo. 15 Year 2003). The substance of this law in many aspects was more toreinvigorate the position of the state as the violence monopoly holder ratherthan providing security and protection for the society.15 Post -Soehartogovernments seemed to try to put out an image that they were able to controlthe situation and to pay a big attention to the need of security feeling of thesociety. With that condition hence death penalty became an inevitable option.

As an implication, all recent public discourses on death penalty arerecycling the arguments that are relatively outdated and constantly usedas a justification for death penalty. Those outdated arguments keep beingreproduced by politicians, academics, and the media (TV stations). Asan example is the hypothesis that death penalty carries a deterrent effecton crime cases in the society. The hypothesis on the deterrent effect16 is

15 The formulation of criticism and the discussion of ideas for the Government and theParliament can be seen in Tim Imparsial [Imparsial Team], Terorisme: Definisi, Aksi danRegulasi [Terrorism: Definition, Action and Regulation], (Jakarta: Imparsial and the Coalitionfor the Safety of Civil Society, 2004).

16 A research in 1988 (revised in 1996) conducted by the United Nation on death penaltyand murder cases concluded that there was no scientific evidence that death penaltyhas more detterent effect than imprisonment. Furthermore, see Roger Hood, TheDeath Penalty: A Worldwide Perspective, (Oxford: Clarendon Press, 1996), p. 238.

17

NO LAW ARTICLE

1 The Indonesian Penal Code

(KUHP)

Article 104, Article 111 paragraph (2), Article 124 paragraph (3), Article 140, Article 340, Article 365 paragraph (4), Article 444, Article 368 paragraph (2)

2 Indonesian Military Penal Code

(KUHPM)

Article 64, Article 65, Article 67, Article 68, Article 73 point 1, 2, 3 and 4, Article 74 point 1 and 2, Article 76 (1), Article 82, Article 89 point 1 and 2, Article 109 point1 and 2, Article 114 paragraph (1), Article 133 paragraph (1) and (2), Article 135 paragraph (1) point 1 and 2, paragraph (2), Article 137 paragraph (1) and (2), Article 138 paragraph (1) and (2), and Article 142 paragraph (2)

really convinced by those in power as a panacea when dealing with theincrease of crime rate, serious security threats and other social offense –such as cases of environmental destruction,17 whereas death penalty couldonly lower crime rate temporarily. Sociologically, the main source of thehigh rate of crimes is poverty, injustices, and mutual symbiotic relationsbetween rulers and thugs/criminals.18

A. Death Penalty under Indonesian Legislation

Death penalty exists in various applicable laws in Indonesia, bothinside and outside the Penal Code. Some provisions, both inside oroutside the Penal Code that provide death penalty are as follows.

Table 1.Death Penalty in Various Laws

17 The Minister of Environment immediately enforced the Anti-Terrorism Law againstall perpetrators of environmental destruction. A perpetrator of such crime iscategorized as a terrorist and is punishable with death penalty or imprisonment for atleast four years. See Koran Tempo, Perusak Lingkungan Bakal Dijerat UU Anti Terorisme[Environmental Vandal will be Punished with the Anti-Terorrism Law]”, January 21,2004.

18 The thug gangs have long been organized by politicians, especially during the 70s. SeeFrans Husken dan Huub de Jonge (eds.), Orde Zonder Order : Kekerasan dan Dendam diIndonesia 1965-1998, [Violence and Vengeance: Disontent and Conflict in New OrderIndonesia], translated by M. Imam Aziz, (Yogyakarta: LKiS, 2003).

CHAPTER 3POLICIES AND PRACTICES OF DEATH PENALTY IN THE REFORMATION ERA

18


The following are some examples on provisions that provide deathpenalty.1. Some criminal provisions under the Indonesian Criminal Code

Article 104The attempt undertaken with intend to deprive the President orVice President of his life or his liberty or to render him unfit togovernment, shall be punished by death penalty or lifeimprisonment or a maximum imprisonment of twenty years.

3 Law No. 12 of 1951 on Firearms Article 1 paragraph (1)

4 Presidential Stipulation No. 5/1959 on the Authority of the General Attorney/Military General Attorney regarding to Increasing Punishment against Crimes that Jeopardize the Implementation of Food and Housing Equipment

Article 2

5 Government Regulation in lieu of Law No. 21 of 1959 on the Increasing Punishment on Economic-based Criminal Offenses

Article 1 paragraph (1) and paragraph (2)

6 Law No. 11/PNPS/1963 on the Elimination of Subversive Actions

Article 13 paragraph (1) and paragraph (2), Article 1 paragraph (1)

7 Law No. 31/PNPS/1964 on the Basic Provisions regarding to Atomic Energy

Article 23

8 Law No.4 year 1976 on the Amendment and Additional changes to several articles under the criminal code regarding to the expansion of the application of the provisions on crimes against aviation and aviation facilities

Article 479k paragraph (2) and 479o paragraph (2)

9 Law No. 5 of 1997 on Psychotropic Drugs Article 59 paragraph (2)

10 Law No.22 of 1997 on Narcotics Drugs

Article 80 paragraph (1), paragraph (2), paragraph (3) Article 81 paragraph (3), Article 82 paragraph (1), paragraph (2), and paragraph (3), Article 83

11 Law No.31 of 1999 on the Eradication of Corruption

Article 2 paragraph (2)

12 Law No.26 of 2000 on Human Rights Courts Article 36, Article 37, Article 41, Article 42 paragraph (3)

13 Law No.15 of 2003 on the Eradication of Terrorism

Article 6, Article 8, Article 9, Article 10, Article 14, Article 15, Article 16

14 Law No. 23 of 2002 on Child Protection Article 89 paragraph (1)

19

Article 111(1) Any person who colludes with either a foreign power or a king

or a community, with the intent to induce them to conducthostilities or to wage a war against the state, to strengthen them inthe intention made up thereto, thereby promising them assistanceor assisting them in their preparations, shall be punished by amaximum imprisonment of fifteen years.

(2) If the hostilities are committed or the war breaks out, either deathpenalty or life imprisonment or a maximum imprisonment oftwenty years shall be imposed

Article 124(1) Any person who in time of war intentionally renders assistance

to the enemy or prejudices the state against the enemy shall bepunished by a maximum imprisonment of fifteen years.

(2) Life imprisonment or a maximum imprisonment or twenty yearsshall be imposed, if the principal:1. Informs or surrenders a map, plan, drawing or description

of military works, or any information concerning militarymovements or plans;

2. Serve the enemy as a spy or harbor a spy.(3) Death Penalty or life imprisonment or a maximum imprisonment

of twenty years shall be imposed, if the principal:1. Betrays to the enemy, smuggles into the enemy’s hand, destructs

or damages an stronghold or post, which is reinforced oroccupied, a means of communication, a storehouse, a militaryprovision, or a military naval or army chest or any part thereof,obstructs, prevents or frustrates a plan for inundation oranother military plan devised or executed for defense or attack

2. Causes or facilitates a revolt, mutiny or desertion among thearmed forces


20


Article 140(1) The treason on the life or the liberty of a ruling President or

another head of a friendly state shall be punished by a maximumimprisonment of fifteen years

(2) If the treason on said life results in death or is undertaken withpremeditation, death penalty or a life imprisonment or amaximum imprisonment of twenty years shall be imposed

(3) If the treason on said life, undertaken with premeditation, resultin death, the death penalty or life imprisonment or a maximumimprisonment of twenty years shall be imposed.

Article 340The person who with deliberate intent and with premeditationtakes the life of another person, shall, being guilty of murder, bepunished by death penalty or life imprisonment or a maximumimprisonment of twenty years

Article 365(1) By a maximum imprisonment of nine years shall be punished

theft proceed, accompanied or followed by force or threat offorce against persons, committed with intent to prepare orfacilitate the theft, or when taken in the act, either to enable forhimself or for other accomplices to the crime to escape; or toensure possession of the thing stolen.

(2) A maximum imprisonment of twelve years shall be imposed:1. If the fact is committed either by night in a dwelling or at an

enclosed yard where a dwelling is; or on the public road; or ina railway carriage or train, which is in motion;

2. If the fact is committed by two or more united persons3. If the offender has forced an entrance into a place of the

crime by way of breaking into the hose or climbing in, orfalse keys, or a false order or a false costume;

21

4. if the fact results in serious physical injury.(3) A maximum imprisonment of fifteen years shall be imposed, if

the fact results in death.(4) Death Penalty or life imprisonment or a maximum

imprisonment of twenty years shall be imposed, if the fact resultsin a serious physical injury or death, committed by two or moreunited persons and thereby accompanied by one of thecircumstances mentioned under first and thirdly.

Article 444If the act of violence described in articles 438-441 result in thedeath of one of the persons on board the attacked vessel of oneof the assaulted person, the skipper, commander or captain andthose who have participated in the acts of violence shall bepunished by death penalty, life imprisonment or a maximumtemporary imprisonment of twenty years.

Article 479k(1) Life imprisonment or a maximum imprisonment of twenty years,

shall be imposed if the act mentioned in article 479 (i) and article479 (f):a. Is committed by two or more persons jointly:b. Is a continuation of a conspiracy?c. Is committed with premeditation;d. Causes damage to said aircraft, such that its navigation may be

endangered;e. Causes serious physical injury to a person;f. Is committed with intent to deprive a person of his liberty or

to maintain the deprivation of liberty of a person. (2)If said act causes the death of a person or the destruction of said

aircraft, the punishment shall be death punishment or lifeimprisonment or a maximum imprisonment of twenty years.


22


Article 479o(1) Life imprisonment or a maximum imprisonment of twenty years,

shall be imposed if the act mentioned in article 479 (l), article 479(m), and article 479 n:a. is committed by two or more persons jointly;b. is a continuation of a conspiracy;c. is committed with premeditation;d. causes serious physical injury to a person

(2) If said act causes the death of a person or the destruction ofsaid aircraft, the punishment shall be death penalty or lifeimprisonment or a maximum imprisonment of twenty years.

2. Article 23 of the Law No. 31/PNPS/1964 on Principle Provisionson Atomic Energy.

Article 23.Any person who intentionally disclose the confidentiality referredto in Article 22 shall be punished by death penalty or a lifetimeimprisonment or a maximum imprisonment of fifteen years bybeing discharged or not being discharged from his/her right tohold offices as referred to in the Article 35 of the Criminal Code.

Article 22 is as follows.Every officer of the atomic installation, National Atomic EnergyBody and other organizations that carry out the use of atomicenergy is obligated to maintain all confidential information inhis/her field of work regarding to atomic energy that he/sheobtain due to his/her official assignment.

3. Article 59 of the Law No. 5 of 1997 on Psychotropic Drugs(1) Any person:a. Uses first-class psychotropic drugs other than referred to in

23

Article 2 paragraph (2); orb. Produces and/or uses in the production process of first-class

psychotropic drugs referred to in Article 6; orc. Distributes first-class psychotropic drugs without conforming

the provision referred to in Article 12 paragraph (3); ord. Importing first-class psychotropic drugs other than for

scientific use; ore. Illegally possesses, retains and/or carries first-class psychotropic

shall be punished by short imprisonment of 4 years, and amaximum imprisonment of 15 years and a minimum fine ofIDR 150.000.000,00 and a maximum fine of 750.000.000,00

(2) If the crimes referred to in the paragraph (1) committed in anorganized manner, shall be punished by death penalty or lifeimprisonment or a maximum imprisonment of 20 years and afine of 750.000.000,00.

4. Law No. 22 of 1997 on Narcotic DrugsArticle 80

(1) Anyone whomsoever without any rights or illegally:a. Produces, processes, extracts, converts, composes, or prepares

narcotics Category I shall be punished with a death sentence,or life sentence, or imprisonment of not more than 20 yearsand a fine of not more than IDR. 1,000,000,000. (One billionrupiahs);

b. ...c. ...

(2) In the case that the narcotic crime as referred to in:a. Clause (1), point a, is preceded by conspiracy, the punishment

shall be: a death penalty, or life sentence, or an imprisonmentof not less than four (4) years and not more than twenty (20)years, and a fine of not less than IDR. 200,000,000, (Twohundred million rupiah), and not more than IDR.


24


2,000,000,000. (Two billion rupiahs).b. ...c. ...

(3) In the case that the narcotic crime as referred to in:a. Clause (1), point a, is committed by an organized crime, the

punishment shall be a death penalty, or life sentence, or animprisonment of not less than five (5) years, and not morethan twenty (20) years imprisonment, and a fine of not lessthan IDR. 500,000,000. (Five hundred million rupiahs) andnot more than IDR. 5,000,000,000 (Five billion rupiahs);

b. ...c. ...

Article 81(1) Anyone whomsoever without any rights or illegally:

a. Brings, sends, transports, or transits narcotic category I shallbe punished with an imprisonment of not more than fifteen(15) years and a fine of not more than IDR750,000,000. (Sevenhundred fifty million rupiahs).

b. ...;c. ...;

(2) ...a. ...;b. ...;c. ...;

(3) In the case that narcotics crime as referred to in:a. Clause (1), point b, is committed by an organized crime; the

punishment shall be a death penalty, life sentence, orimprisonment of not less than four years and not more thantwenty years and a fine of not less than IDR 500,000,000.(Five hundred million rupiahs), and not more than IDR4,000,000,000. (Four billion rupiahs).

25

b. ...;c. ...;

Article 82(1) Anyone whomsoever without any rights or illegally:

a. Imports, exports, offers for sale, distributes, sells, buys, delivers,acts as broker or exchanges narcotics Category I, shall bepunished with a death penalty, or life sentence, or imprisonmentof not more than twenty (20) years, and a fine of not morethan IDR 1,000,000,000. (One billion rupiah).

b. ...;c. ...;

(2) In the case that the narcotic crime as referred to in:a. Clause (1), point a, is preceded with conspiracy, the punishment

shall be a death penalty, life sentence, or an imprisonment ofnot less than four year and not more than twenty years, and afine of not less than IDR 200,000,000. (Two hundred millionrupiahs), and not more than IDR 2,000,000,000. (Two billionrupiahs)

b. ...;b. ...;

(3) In the case that the narcotic crime as referred to in:a. Clause (1), point a, is committed by an organized crime, the

punishment shall be a death penalty, life sentence or animprisonment of not less than five (5) years, and not morethan twenty (20) years, and a fine of not less than IDR500,000,000. (Five hundred million rupiahs) and not morethan IDR 3,000,000,000. (Three billion rupiahs)

b. b. ...;c. c. ...;

Article 83


26


An attempt or a conspiracy to commit narcotic crime as containedin Articles 78, 79, 80, 81 and 82 shall be punished with equalimprisonment to those stipulated therein

5. Article 2 paragraph (2) Law. 31 year 1999 on Eradication of CriminalActs of Corruption

(1) Anyone unlawfully enriching himself and/or other persons or acorporation in such a way as to be detrimental to the finance ofthe state or the economy of the state shall be liable to lifeimprisonment, or a prison term of not less than 4 (four) year andnot exceeding 20 (twenty) years and a fine of not less than IDR200,000,000 and not exceeding IDR 1,000,000,000.

(2) In the event that corruption as referred to in paragraph (I) iscommitted under certain circumstances, death penalty may beapplied.

6. Article 27 of Law No.9 of 2008 on the Use of Chemical Substancesand the Prohibition of the Use of Chemical Substances as ChemicalWeapons.

Any person who violates the provision referred to in Article 14 shallbe punished by death penalty or a lifetime imprisonment, or minimumimprisonment of 4 (four) years and maximum imprisonment of 20(twenty) years.

While according to Article 14, death penalty is applicable for:Every person is prohibited from:

a. developing, producing, obtaining, and/or possessing chemicalweapon;

b. transferring, both directly and indirectly, chemical weapon toanyone;

c. using chemical weapon;d. getting involve in a military preparation to use chemical weapon; or

27

e. getting involve, assisting and/or persuading other people byany means in the prohibited activities referred to in this Law.

7. Article 6 and Article 9, Article 14 of the Law No. 15 of 2003 on theAdoption of Government Regulation in Lieu of Law No. 1 of 2002on the Eradication of the Crime of Terrorism.

Article 6Any person who by intentionally using violence or threats ofviolence, creates a widespread atmosphere of terror/fear orcauses mass casualties, by taking the liberty or lives and propertyof other people, or causing damage or destruction to strategicvital objects, the environment, public facilities or internationalfacilities, faces the death penalty, or life imprisonment, or between4 and 20 years of imprisonment.

Article 9Any person who illegally brings into Indonesia, makes, accepts,attempts to obtain, transfers or tries to transfer, controls, carries,has supply of, possesses, stores, transports, hides, uses or takes toor from Indonesia: a firearm, ammunition, explosives, or otherdangerous materials with intent to perform an act of terrorism,shall be punished by death penalty or life imprisonment, orminimum imprisonment of 3 years and maximum imprisonmentof 20 years.

Article 14Any person who plans or incites others to commit crime ofterrorism referred to in Article 6, Article 7, Article 8, Article 9,Article 10, Article 11, and Article 12 shall be punished by deathpenalty or life imprisonment.


28


8. Article 89 paragraph (1) of the Law No.23 of 2002 on Child ProtectionAny person who by intentionally placing, allowing, involving, ordering

to involve children in abusing, producing, or distributing narcotics and/or psychotropic substances shall be punished by death penalty or lifeimprisonment or maximum imprisonment of 20 years and minimumimprisonment of 5 years and maximum fine of IDR 500.000.000,00and minimum fine of IDR 50.000.000,00.

9. Article 36 and Article 37 of the Law No. 26 of 2000 on HumanRights Courts.

Article 36Any person who commits any acts referred to in Article 8 pointa, b, c, d, and e shall be punished by death penalty or life sentenceor maximum imprisonment of 25 years and minimum of 10years.

Article 37Any person who commits any acts referred to in Article 9 pointa, b, c, e, or j shall be punished by death penalty or lifeimprisonment or maximum imprisonment of 25 years andminimum imprisonment of 10 years.

According to Article 8 and Article 9, death penalty is applicable forthe following crimes.

Article 8Genocide as referred to in Article 7 point a is any of the followingacts committed with intent to destroy, in whole or in part, anational, ethnical, racial or religious group, as such:a. Killing members of the group;b. Causing serious bodily or mental harm to members of the

29

group;b. Deliberately inflicting on the group conditions of life calculated

to bring about its physical destruction in whole or in part; (c. Imposing measures intended to prevent births within the

group; (d. Forcibly transferring children of the group to another group.

Article 9Crimes against humanity referred to in Article 7 point b is any ofthe following acts when committed as part of a widespread orsystematic attack directed against any civilian population, as such:a. Murder;b. Extermination;b. Enslavement;c. Deportation or forcible transfer of population;d. Imprisonment or other severe deprivation of physical liberty

in violation of fundamental rules of international law;e. Torture;f. Rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violenceof comparable gravity;

g. Persecution against any identifiable group or collectivity onpolitical, racial, national, ethnic, cultural, religious, gender asdefined in paragraph 3, or other grounds that are universallyrecognized as impermissible under international law, inconnection with any act referred to in this paragraph or anycrime within the jurisdiction of the Court;

h. Enforced disappearance of persons;i. The crime of apartheid;

The abovementioned provisions explicitly confirm that Indonesia isstill imposing death penalty, although, at the regulation level, it is applicable


30


as an alternative between death penalty, life imprisonment and temporaryimprisonment. Judge has the authority to determine the punishment. Inpractice, death penalty is still being applied, even though there arealternatives of life imprisonment and temporary imprisonment.

In the new draft of the Indonesian Criminal Code, which has beendiscussed by the government for quite sometimes, death penalty stillexists. Death penalty is determined as one of principle punishments thathas a specific nature and is always categorized as an alternative (Article66 of the Criminal Code Bill). Death penalty and the methods of theexecution are specifically provided in the Paragraph 11 of the Article 87to Article 90 of the Criminal Code Bill, moreover, there is also a provisionthat stipulates that statue of limitation shall not be applied for deathpenalty (Article 155 of the Criminal Code Bill).19

Under the Criminal Code Bill, there are still 20 provisions that providedeath penalty. Death penalty applies as an alternative punishment for thecrimes of subversion, terrorism, gross human rights violations, narcoticsand psychotropic substances, war or armed conflict crimes, as well aspower abuse that inflicts financial loss to the state. The followings arethe provisions under the Criminal Code Bill that provide death penalty:20

Article 215Any person who commits acts of subversion with intend todeprive the President or Vice President of his life or his liberty orto render him unfit to government, shall be punished by deathpenalty or life imprisonment or a minimum imprisonment of 5years and maximum imprisonment of twenty years.

19 Draft Bill on Criminal Code, Draft 09/04/2006.20 Ibid.

31

Article 228(1) By a minimum imprisonment of 3 years and a maximum of 15

years shall be punished:a. Any person who colludes with either a foreign country or

organization, with the intent to induce them to conducthostilities or to wage a war against the Republic of Indonesia;

b. strengthening the intention of the foreign country ororganization to commit the acts referred to in point a; or

c. promising assistance to the foreign country or organization orassisting them in the preparations to commit the acts referredto in point a.

(2) If the hostilities referred to in paragraph (1) are committed orthe war breaks out, either death penalty or life imprisonment ora minimum imprisonment of 5 years and a maximumimprisonment of 20 years shall be imposed.

Article 237 (1) Any person who in time of war intentionally renders assistance

to the enemy or prejudices the state against the enemy, shall bepunished by a minimum imprisonment of 3 years and a maximumimprisonment of 15 years

(2) Life imprisonment or a minimum imprisonment of 5 years anda maximum imprisonment or 20 years shall be imposed, if theperpetrator of any acts referred to in Article (1):a. Informs or surrenders a map, plan, drawing or description

of military buildings or any information concerning militarymovements or plans to the enemy; or

b. Serve the enemy as a spy or harbors a spy. (3) Death penalty of life imprisonment or a minimum imprisonment

of 5 years and a maximum imprisonment or 20 years shall beimposed, if the perpetrator of any acts referred to in Article (1):a. Betrays to the enemy, smuggles into the enemy’s hand, destructs


32


or damages an stronghold or post, which is reinforced oroccupied, a means of communication, a storehouse, a militaryprovision, or a military naval or army chest or any part thereof,obstructs, prevents or frustrates a plan for inundation oranother military plan devised or executed for defense or attack;or

b. Causes or facilitates a revolt, mutiny or desertion among thearmed forces

Article 242Any person who by intentionally using violence or threats ofviolence, creates a widespread atmosphere of terror/fear orcauses mass casualties, by taking the liberty or lives and propertyof other people, or causing damage or destruction to strategicvital objects, the environment, public facilities or internationalfacilities, shall be punished for terrorism by death penalty, orlife imprisonment, or a minimum imprisonment of 5 years and amaximum imprisonment of 20 years.

Article 244Any person who uses chemical substance, biological weapons,radiology, microorganism, radioactive or their components withintend to commit terrorism shall be punished by death penaltyor life imprisonment or a minimum imprisonment of 5 yearsand a maximum imprisonment of 20 years.

Article 247Any person who plans and/or incites others to commit crime ofterrorism referred to in Article 242 to Article 246 shall be punishedby death penalty or life imprisonment or a minimumimprisonment of 5 years and a maximum imprisonment of 20years.

33

Article 250(1) Shall be punished for terrorism, any person who commits crimes

referred to in Article 256 and Article 257 by life imprisonment ora minimum imprisonment of 5 years and a maximumimprisonment of 20 years, and Article 258 by death penalty, lifeimprisonment or a minimum imprisonment of 5 years and amaximum imprisonment of 20 years.

Article 262 (1) Shall be punished by life imprisonment and a minimum imprisonment

of 5 years and a maximum imprisonment of 20 years, if the crimesreferred to in Article 259, Article 260, or Article 261:a. Jointly committed by 2 persons or more;b. As a follow-up conspiracy; orc. Inflict severe injuries.

(2) If the crimes referred to in Article (1) inflict casualties ordisintegration of the aircraft, the perpetrator shall be punished bydeath penalty or life imprisonment or a minimum imprisonmentof 5 years and a maximum imprisonment of 20 years.

Article 269 (1) Any person who commits subversion activities with intend to

deprive the life or liberty of the head of a friendly state shall bepunished by a minimum imprisonment of 3 years and a maximumimprisonment of 15 years.

(2) If the act of subversion referred to in paragraph (1) inflict deathto the head of the state, shall be punished by death penalty or lifeimprisonment or minimum imprisonment of 5 years and amaximum imprisonment of 20 years.

Article 394(1) Shall be punished by Death Penalty or life imprisonment, or a


34


minimum imprisonment of 5 years and a maximumimprisonment of 20 years, every person who commits thefollowing acts with intent to destroy, in whole or in part, a national,ethnical, racial, or religious group:a. killing members of the group;b. causing serious bodily or mental harm to member of the

group;c. deliberately inflicting on the group condition of life calculated

to bring about its physical destruction in whole or in part;d. imposing measures intended to prevent births within the group;

ore. forcibly transferring children of the group to another group.

Article 395(1) Shall be punished by death penalty or life imprisonment, or a

minimum imprisonment of 5 years and a maximum of 20 years,everyone who commits the following acts when committed aspart of a widespread or systematic attack directed against anycivilian population, with knowledge of the attack:a. Murder;b. Extermination;c. Enslavement;d. Deportation or forcible transfer of population;e. Imprisonment or other severe deprivation of physical liberty

in violation of fundamental rules of international law;f. Torture;g. Rape, sexual slavery, enforced prostitution, forced pregnancy,

enforced sterilization, or any other form of sexual violenceof comparable gravity;

h. Persecution against any identifiable group or collectivity onpolitical, racial, national, ethnic, cultural, religious, gender orother grounds that are universally recognized as impermissible

35

under international law;i. Enforced disappearance of persons;j. The crime of apartheid; ork. Other inhumane acts of a similar character intentionally causing

great suffering, or serious injury to body or to mental orphysical health.

Article 396Shall be punished by death penalty or life imprisonment or aminimum imprisonment of 5 years and a maximumimprisonment of 20 years, every person who in times of war orarmed conflict commits gross violation against persons orproperty protected under the provisions of the relevant GenevaConvention as such:a. Willful killing;b. Torture and inhuman treatment including biological

experiments;c. Willfully causing great suffering or serious injury to body or

health;d. Extensive destruction and appropriation of property not

justified by military necessity and carried out unlawfully andwantonly;

e. Compelling a prisoner of war or other protected person toserve in the forces of a hostile Power;

f. Willfully depriving a prisoner of war or other protected personof the rights of fair and regular trial;

g. Unlawful deportation or transfer or unlawful confinement;or

h. Taking of hostages.

Article 397Shall be punished by death penalty or life imprisonment, or a


36


minimum imprisonment of 5 years and a maximum of 20 years,every person who commits other serious violation of the lawand customs applicable in international armed conflict, within theestablished framework of international law, namely, any of thefollowing acts:a. Intentionally directing attacks against the civilian population as

such or against individual civilians not taking direct part inhostilities;

b. Intentionally directing attacks against civilian objects, that is,objects which are not military objectives;

c. Intentionally directing attacks against personnel, installations,material, units or vehicles involved in a humanitarian assistanceor peacekeeping mission in accordance with the Charter ofthe United Nations, as long as they are entitled to the protectiongiven to civilians or civilian objects under the international lawof armed conflict;

d. Intentionally launching an attack in the knowledge that suchattack will cause incidental loss of life or injury to civilians ordamage to civilian objects or widespread, long-term and severedamage to the natural environment which would be clearlyexcessive in relation to the concrete and direct overall militaryadvantage anticipated;

e. Attacking or bombarding, by whatever means, towns, villages,dwellings or buildings which are undefended and which arenot military objectives;

f. Killing or wounding a combatant who, having laid down hisarms or having no longer means of defense, has surrenderedat discretion;

g. Making improper use of a flag of truce, of the flag or of themilitary insignia and uniform of the enemy or of the UnitedNations, as well as of the distinctive emblems of the GenevaConventions, resulting in death or serious personal injury;

37

h. The transfer, directly or indirectly, by the Occupying Powerof parts of its own civilian population into the territory itoccupies, or the deportation or transfer of all or parts of thepopulation of the occupied territory within or outside thisterritory;

i. Intentionally directing attacks against buildings dedicated toreligion, education, art, science or charitable purposes, historicmonuments, hospitals and places where the sick and woundedare collected, provided they are not military objectives;

j. Subjecting persons who are in the power of an adverse partyto physical mutilation or to medical or scientific experimentsof any kind which are neither justified by the medical, dentalor hospital treatment of the person concerned nor carriedout in his or her interest, and which cause death to or seriouslyendanger the health of such person or persons;

k. Killing or wounding treacherously individuals belonging tothe hostile nation or army;

l. Declaring that no quarter will be given;m. Destroying or seizing the enemy’s property unless such

destruction or seizure be imperatively demanded by thenecessities of war;

n. Declaring abolished, suspended or inadmissible in a court oflaw the rights and actions of the nationals of the hostile party;

o. Compelling the nationals of the hostile party to take part inthe operations of war directed against their own country, evenif they were in the belligerent’s service before thecommencement of the war;

p. Pillaging a town or place, even when taken by assault;q. Employing poison or poisoned weapons;r. Employing asphyxiating, poisonous or other gases, and all

analogous liquids, materials or devicess. Employing bullets which expand or flatten easily in the human


38


body, such as bullets with a hard envelope which does notentirely cover the core or is pierced with incisions;

t. Employing weapons, projectiles and material and methodsof warfare which are of a nature to cause superfluous injuryor unnecessary suffering or which are inherently indiscriminatein violation of the international law of armed conflict, are thesubject of a comprehensive prohibition;

u. Committing outrages upon personal dignity, in particularhumiliating and degrading treatment;

v. Committing rape, sexual slavery, enforced prostitution, forcedpregnancy, enforced sterilization, or any other form of sexualviolence also constituting a grave breach of the GenevaConventions;

w. Utilizing the presence of a civilian or other protected personto render certain points, areas or military forces immune frommilitary operations;

x. Intentionally directing attacks against buildings, material, medicalunits and transport, and personnel using the distinctive emblemsof the Geneva Conventions in conformity with internationallaw;

y. Intentionally using starvation of civilians as a method of warfareby depriving them of objects indispensable to their survival,including willfully impeding relief supplies as provided forunder the Geneva Conventions;

z. Conscripting or enlisting children under the age of 15 (fifteen)years into the national armed forces or using them to participateactively in hostilities.

Article 398Shall be punished by death penalty or life imprisonment, or aminimum imprisonment of 5 years and a maximumimprisonment of 20 years, every person who commits, in the

39

case of an armed conflict not of an international character, seriousviolations of article 3 common to the Geneva convention, namely,any of the following acts against persons taking no active part inthe hostilities, including members of armed forced who havelaid down their arms and those placed hors de combat by sickness,founds, detention or any other cause:a. Violence to life and person, in particular murder of all kinds,

mutilation, cruel treatment and torture;b. Committing outrages upon personal dignity, in particular

humiliating and degrading treatment; ord. The passing of sentences and the carrying out of executions

without previous judgement pronounced by a regularlyconstituted court, affording all judicial guarantees which aregenerally recognized as indispensable.

Article 399Shall be punished by death penalty or life imprisonment, or aminimum imprisonment of 5 years and a maximumimprisonment of 20 years, everyone in armed conflicts not of aninternational character, within the established framework ofinternational law, namely, any of the following acts:a. Intentionally directing attacks against the civilian population as

such or against individual civilians not taking direct part inhostilities;

b. Intentionally directing attacks against buildings, material, medicalunits and transport, and personnel using the distinctive emblemsof the Geneva Conventions in conformity with internationallaw;

c. Intentionally directing attacks against personnel, installations,material, units or vehicles involved in a humanitarian assistanceor peacekeeping mission in accordance with the Charter ofthe United Nations;


40


d. Intentionally directing attacks against buildings dedicated toreligion, education, art, science or charitable purposes, historicmonuments, hospitals and places where the sick and woundedare collected, provided they are not military objectives;

e. Pillaging a town or place, even when taken by assault;f. Committing rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization, and any other form of sexualviolence constituting a serious violation of the GenevaConventions;

g. Conscripting or enlisting children under the age of fifteen yearsinto armed forces or groups or using them to participateactively in hostilities;

h. Ordering the displacement of the civilian population forreasons related to the conflict, unless the security of the civiliansinvolved or imperative military reasons so demand;

i. Killing or wounding treacherously a combatant adversary;j. Declaring that no quarter will be given;k. Subjecting persons who are in the power of another party to

the conflict to physical mutilation or to medical or scientificexperiments of any kind which are neither justified by themedical, dental or hospital treatment of the person concernednor carried out in his or her interest, and which cause death toor seriously endanger the health of such person or persons;or

j. Destroying or seizing the property of an adversary unless suchdestruction or seizure be imperatively demanded by thenecessities of the conflict.

Article 506Any person whomsoever without any rights or illegally produceor provide narcotic drugs, shall be punished by death penalty orlife sentence, or imprisonment of not less than 5 (five) years and

41

not more than 20 (twenty) years and a fine of minimum ofCategories IV and maximum of Categories VI.

Article 508Any person whomsoever without any rights or illegally imports,exports, offers for sale, distribute, sells, buys, delivers, acts as brokeror exchanges narcotics, shall be punished with a death penalty, orlife sentence, or imprisonment or not less than 5 (five) years andnot more than 20 (twenty) years, and a fine of not less than CategoryIV and not more than Category VI.

Article 506Any person who unlawfully and illegally produce or suppliesnarcotic drugs, shall be punished by death penalty or lifeimprisonment or a minimum imprisonment of 5 years and amaximum imprisonment of 20 years and a fine of not less thanCategory IV and not more than Category VI.

Article 508Every person who unlawfully and illegally imports, exports, offersto sell, supplies, sells, buys, gives, takes, becomes a mediator in atrade of or exchanges narcotic drugs, shall be punished by deathpenalty or life imprisonment or a minimum imprisonment of 5years and a maximum imprisonment of 20 years and a fine ofnot less than Category IV and not more than Category VI.

Article 515 (1) Every person who produces and/or uses in a production process

of psychotropic drugs, distributes, imports, or exportspsychotropic drugs shall be punished by death penalty or lifeimprisonment or a minimum imprisonment of 5 years and amaximum imprisonment of 20 years and a fine of not less than


42


Category IV and not more than Category VI.

Article 572Any person who with premeditation takes the life of anotherperson shall be punished for premeditated murder by deathpenalty or life imprisonment or a minimum imprisonment of 5years and a maximum imprisonment of 20 years.

Article 684Crimes referred to in Article 682 and Article 683 shall be punishedby death penalty, life imprisonment or a minimum imprisonmentof 5 years and a maximum imprisonment of 20 years if:a. The crimes committed against funds designed for emergency

response, national natural disasters, responding widespreadsocial uprising, responding economic and monetary crisis; or

b. There is a repetition of crime.

Article 682 and Article 683 provides stipulations regarding to powerabuse that inflicts financial loss to the State as follows:

Article 682Any person who unlawfully and illegally enriching himself and/or other persons or a corporation in such a way as to be detrimentalto the finance of the state or the economy of the state shall bepunished by life imprisonment or a minimum imprisonment of5 years and a maximum imprisonment of 20 years and a fine ofnot less than Category IV and not more than Category VI.

Article 683Anyone with the intention of enriching himself or other personsor a ( corporation, abusing the authority, the facilities or othermeans at ( their disposal due to rank or position in such a way

43

that is ( detrimental to the finances of the state or the economyof the state, shall be punished by life imprisonment or a minimumimprisonment of 5 years and a maximum imprisonment of 20years and a fine of not less than Category IV and not more thanCategory VI.

B. The Practice of Death Penalty in TheReformation Era21

During the reformation era from 1998 to December 2009, deathpenalty convicts who had been executed were 21 people. The threemajor cases underlying the executions were murder with 13 cases, drugs/psychotropic with 5 cases and terrorism with 3 cases. 2008 was the yearwith most executions, which was 10 people with the following order:murder cases (5 persons), drugs and psychotropic cases (2 persons), andterrorism cases (3 persons)/

Table 2.Types of Cases of Death Penalty

Meanwhile the death sentence event that drew most public attentionwas the execution of Amrozi bin Nurhasyim, Abdul Aziz a.k.a Imam

21 Data on death convicts who are still on the death row and those who have beenexecuted over the course of 11 years during the reformation era (1998 – 2009) couldbe seen on Annex 2. For similar data during the New Order Era (1982 -1997) ispresented on Annex 1.

No Cases Number

1 Murder 13 persons

2 Drugs and Psychotropic 5 persons

3 Terrorism 3 persons

Total 21 persons


44


Samudra and Ali Ghufron a.k.a Mukhlas who were the three convictsof Bali Bombing I, which was carried out in November 2008. This casewas the last execution until the end of 2009.

From the death penalty verdict, there were 119 convicts who weresentenced with death penalty by the court authorities, from the level ofCourt of First Instance to the level of Supreme Court. The most casesthat received death sentence were drugs and psychotropic with 72 cases;murder with 38 cases; and terrorism with 9 cases. If traced backaccording to the year, 2001 was the year with most death sentences with17 verdicts; 2006 and 2008 with 15 verdicts for each year; 2003 with 12verdicts; 2000, 2004 and 2007 with 10 verdicts for each year; 2002 and2005 with 9 verdicts for each year; 1998 with 5 verdicts; and the leastwas 2009 with 1 verdict.

Table 3.Types of Cases of Death Penalty

67 out of 119 people on death row are still in the process of furtherlegal efforts, from appeal process, to appeal to the Supreme Court(kasasi), to review or appeal after verdict in the level of Supreme Court,to clemency. In the meantime the number of people who were sentencedwith death penalty and have been imprisoned in the correctionalinstitutions more than five years are 60 people.

Viewed from the aspect of judicative authorities that passed the most

No Cases Number

1 Narcotics and Psychotropic 72 cases

2 Murder 38 cases

3 Terrorism 9 case

Total 119 cases

45

death penalty verdicts is Tangerang Court of First Instance, whichsentenced 32 people to death. Most of the cases were drugs andpsychotropic; West Jakarta Court of First Instance with 6 death penalties;Denpasar – Bali Court of First Instance with 5 death penalties (terrorismand drugs/psychotropic); Central Jakarta and South Jakarta Courts ofFirst Instance with 5 death penalties; Medan and Lubuk Pakam – NorthSumatra Courts of First Instance, with 4 death penalties for each court.

Out of 119 death penalty cases, majority are Indonesian citizens witha total of 69 people, while the foreign citizens who have been givendeath penalty since 1998 to this day are 55 people. Death penalty convictswith Nigerian nationality top the number with 11 people. Following itare Australian with 7 people; Nepalese with 6 people; Chinese with 5people; Malaysian with 4 people; Singaporean with 3 people: Brazilian,Thailand, Pakistani, Zimbabwe, Malawi, and Dutch with 2 people foreach nationality; while Angolan, South African, Sierra Leone, Ghana,Senegal, India and France nationalities are on the bottom list with 1person each. Most of them were charged with drugs and psychotropicoffense.

Table 4.Foreign Citizens Who Have Been Sentenced with Death Penalty

No Nationality Number

1 Nigeria 11 people

2 Australia 7 people

3 Nepal 6 people

4 China 5 people

5 Malaysia 4 people

6 Singapore 3 people

7 Malawi 2 people

8 Zimbabwe 2 people


46


C. Torture in Death Penalty

From the death penalty data explanation during the decade ofreformation, what is very troubling and moving at the same time wasthe grace period that often takes a very long time and unclear aboutwhen the execution would take place, such as the experience of Sumiarsihand Sugeng who were imprisoned for more than 10 years. It was evenalmost 20 years when the time of their execution was decided.

The delay of execution that sometimes takes more than 10 yearsclearly is the responsibility of those who have the power. Thisresponsibility cannot be morally and ethically justified and it is not acommendable act, especially if there are some unclear motivations installing the time of execution. In this case, the rulers have violated humanrights that are guaranteed by the article 28(I) Second Amendment of the1945 Constitution. Delaying execution without a clear motivation clearlyis a cruelty that has an unthinkable implication and consequences, which

9 Pakistan 2 people

10 Thailand 2 people

11 Brazil 2 people

12 Dutch 2 people

13 Angola 1 people

14 South Africa 1 people

15 Sierra Leone 1 people

16 Ghana 1 people

17 Senegal 1 people

18 India 1 people

19 France 1 people

Total 55 people

47

is in the form of letting the process of sufferings of the convicts ondeath row to prolong that is unethical and immoral. If a convict ondeath row is left without a certainty for a long period of time, he/she isactually also going through a spiritual torments, psychological torturesand mental repression.22

If we look further, it is not only the spiritual, psychological and mentalaspects of the convicts on death row that suffer, but they also experiencean invisible victimization. The consequence is that death penalty wouldlose its deterrent nature, because death penalty that is not being carriedout immediately would convey a wrong message to future criminals orperpetrators that might be charged with the same sentence.23 The convictson death row would also feel that they were already killed even beforethe execution. Everyday they count their remaining time, minute by minute.When would the night-shift guards would come knocking on their celldoor and tell them to do their last prayer before they were put in frontof the firing squad.

22 Prof. (Em). Dr. J.E. Sahetapy, S.H., M.A., Pidana Mati dalam Negara Pancasila [Death Penalty inPancasila State], (Bandung: PT. Citra Aditya Bakti, 2007), p. 68.

23 Ibid, p. 69.


48


49

Chapter 4

The Right to Life:Non- Derogable Constitutional

Rights

Human rights have become a mainstream of world civilization. Thisachievement is the peak of the struggle for humanity that has beenblossomed since the human civilization, both at the level of thought andat the level of social life practices. The thinking of human rights couldbe traced back to the ancient Greek era, both in the context of theobjectives and main orientation of social life (state) and as a right to befree from any oppression.24 On the other hand, the practices of humanrights violation also became the dark side of human civilization becauseof the barbaric violent acts, civil wars and oppressions by the states. Thehistorical experience of mankind raised a consciousness about and anacknowledgment of human dignity as well as the rights that are adheredto every single human being on the grounds of freedom, justice andworld peace.

The adoption and proclamation of Universal Declaration of Human

24 Plato (427 – 348 BC) developed the first thinking on the universalism of ethicalstandard, which required same treatment for everyone, both citizens or not. Aristoteles(384 – 322 BC) countlessly discussed about the importance of values, justice, andrights within society. Sophocles (495 – 406 BC) raised an early thinking on individualrights not to be oppressed by the state. Darren J. O’Byrne, Human Rights: An Introduction,(Delhi: Pearson Wducation Limited, 2003), p. 28.

50


Rights (UDHR) on December 10th, 1948 by the General Assembly ofthe United States was the top of recognition of human rights as commonstandard of achievement for all people and all nations.25 Although it isnot a legally binding document but it is the main foundation for theprotection and promotion of human rights, and becomes the basis ofother human rights documents that are legally binding such as theInternational Covenant on Civil and Political Rights and the InternationalCovenant on Economic, Social, and Cultural Rights.

The basic conception of human rights is a recognition that all humanbeings are born free and equal in dignity and rights. They are endowedwith reason and conscience and should act towards one another in aspirit of brotherhood.26 The basic conception gave birth to threeprinciples in the existence of human rights. First, human rights is universal,adhered to all human beings without any distinction of any kind, such asethnic, race, gender, age, religion, political opinion, and form ofgovernment. Second, human rights are irrefutable because it is not a giftfrom the state, inalienable, or cannot be denied by any political authority.Third, human rights are subjective in nature that are individually inherentbecause his/her capacity as a rational and autonomous human being.27

The attention and struggle of mankind to fulfill their rights haverequired human beings to live in groups and get organized. The forming

25 One of the preambles to the Universal Declaration of Human Rights stated: “Now,Therefore The General Assembly proclaim this Universal Declaration of Human Rights as a commonstandard of achievement for all peoples and all nations, to the end that every individual and every organof society, keeping this Declaration constantly in mind, shall strive by teaching and education topromote respect for these rights and freedoms and by progressive measures, national and international, tosecure their universal and effective recognition and observance, both among the peoples of member Statethemselves and among the peoples of territories under their jurisdiction.”

26 Article 1 of the Universal Declaration of Human Rights, was established by the UnitedStates General Assembly resolution 217 A (III) of 10 December 1948.

27 O’Byrne, Op. Cit., p. 27.

51

of state is a manifestation of desire to protect human rights. The stategains power from its citizens as the holder of sovereignty merely tofulfill and protect the rights of its citizens.

One of the powers owned by the state is the power to set up anduphold the law. Automatically, the law needs to be made and upheldwith the main orientation of protecting human rights. The law wouldbecome the basis of legitimacy of any action taken by the state.

In the conception of human rights there is also limitation. Thereforeit is a mistake to understand human rights as something without limitation.The article 29 (2) of UHDR stated:

In the exercise of his rights and freedoms, everyone shall be subjectonly to such limitations as are determined by law solely for thepurpose of securing due recognition and respect for the rights andfreedoms of others and of meeting the just requirements of morality,public order and the general welfare in a democratic society.

The provision mentioned above shows that limitations could beapplied on human rights as an effort to balance out the individualrights and the public interests. Limitations are needed in order to protectand fulfill other people’s rights. In line with its nature of ‘limiting’therefore the limitation is not at all removing the limited rights. Thelimitations usually are manifested in the form of certain proceduresthat are made so that the enjoyment of a right would not violate otherpeople’s rights.

Besides the concept of limitation, there is also a derogation conceptthat could be given a meaning as diminution or adjournment. A rightthat is being derogated means that it is not being given at all. Hence aderogation to rights can only be done in a specific time with certain

CHAPTER 4 THE RIGHT TO LIFE: NON- DEROGABLE CONSTITUTIONAL RIGHTS

52


strict mechanisms, which usually in a state of emergency condition.28

After the state of emergency ends, derogation of rights should be endedas well.

It can be said that this limitation can be applied on all rights andfreedom, unless if the limitation can take away the rights totally, or inother words the limitation also result in derogation. Derogation also canbe applied on all rights, except on certain rights that are proclaimed asnon-derogable at any time.

The rights included in the category of non-derogable are the rightsthat are fundamental and principle for the humanity. Those rights cannotbe violated even in the situation where the state is in serious threats,29 forthe reason that is those rights were derogated then it would degradehuman’s dignity and even more would remove the substance of selfthat could not be returned to a normal condition. Therefore, rights thatare in this category by itself cannot be and are not subject to limitation.Some classify the non-derogable rights as the core of human right andare in top of hierarchy in international law.30

The provision on human rights in the 1945 Constitution experienceda fundamental change post the Second Amendment in 2000. Theprovisions of human rights, which in the beginning was only a little andvery general transformed into a detailed formulation in a separate chapter.When compared, we can find conformity between the formulation of

28 Belay Frenesh Tessema, A Critical Analysis Of Non-Derogable Rights In A State Of EmergencyUnder The African System: The Case Of Ethiopia And Mozambique, (Center for Human RightsFaculty of Law University of Pretoria, 31 Oktober 2005), p. 11-14. Compare this withthe Article 4 (1) of the ICCPR.

29 Wang Zhenjun, Several Issues Relating to Protecting Non-Derogable Right in China, Paperpresented for Constitutions and Emergencies Workshop, Athens, 12 June 2007, p. 1.

30 Teraya Koji, Emerging Hierarchy in International Human Rights and Beyond: From the Perspectiveof Non-Derogable Rights, [EJIL (2001), Vol. 12, No. 5].

53

human rights in the 1945 Constitution and the formulation in UDHR aswell as other international covenants.

The article 28I (1) of the 1945 Constitution states seven (7) rights asthe rights that cannot be reduced in any condition. Those rights are theright to life, the right not to be subjected to torture, the right to freedomof thought and conscience, the right to religion, the right not to be heldin slavery, the right to recognition everywhere as a person before thelaw, and the right not to be held guilty of any criminal offence on accountof any act or omission which did not constitute a criminal offence, atthe time when it was committed.

Article 28I (1) of the 1945 Constitution:“The right to life, the right not to be subjected to torture, the right to freedom

of thought and conscience, the right to religion, the right not to be held in slavery,the right to recognition everywhere as a person before the law, and the right not tobe held guilty of any criminal offence on account of any act or omission which didnot constitute a criminal offence, at the time when it was committed are the rightsthat cannot be reduced in any condition”.

Those rights are also confirmed as non-derogable rights based onthe Article 4 (2) of the ICCPR, which contains eight (8) rights. One rightthat is not classified as a non-derogable right in the 1945 Constitution isthe right not to be imprisoned on the ground of inability to fulfill acontractual obligation (No one shall be imprisoned merely on the ground ofinability to fulfill a contractual obligation).31

31 Article 11 of the ICCPR.


54


Table 5.Comparison of Non-Derogable Rights in the 1945 Constitution and

in the ICCPR

The right to life, both in ICCPR and in 1945 Constitution is includedin the category of non-derogable rights. As the consequence that rightcannot be derogated in any condition, such as in a state of emergency,and it is not subject to limitation. That is in accordance with the phrase“cannot be reduced in any condition” as stated in the Article 28I (1) ofthe 1945 Constitution.

The limitation in the 1945 Constitution is regulated in Article 28J (2),which states:

“In the exercise of his rights and freedoms, everyone shall be subject only tosuch limitations as are determined by law solely for the purpose of securing duerecognition and respect for the rights and freedoms of others and of meeting thejust requirements based on the considerations morality, religious values, security,and public order in a democratic society”

No Article 28 (I) of the 1945 Constitution ICCPR

1 Right to life Right to life (Article 6).

2 Right not to be subjected to torture Right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Article 7).

3 Right to freedom of thought and conscience.

4 Right to religion.

Right to freedom of thought, conscience and

Religion. (Article 18).

5 Right not to be held in slavery Right not to be held in slavery [Article 8 (1)].

Right not to be held servitude [Article 8 (2)].

6 The right to recognition everywhere as a person before the law

The right to recognition everywhere as a person before the law (Article 16).

7 The right not to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

The right not to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. (Article 15).

8 The right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation. (Article 11).

55

In line with the meaning of ‘limitation’, it is an effort to fulfill therights of others and to harmonize the individual rights and the interestsof the society. The ‘limitation’ also contains a meaning of not removingthe rights entirely. Automatically the right to life cannot be subjected toany limitation in any condition. Moreover, if the right to life is includedin the scope of limitation in the Article 28J of the 1945 Constitution,then its categorization as a non-derogable right loses its meaningcompletely.

Therefore death penalty in principle is violation the right to life, thusit is in contrary with the 1945 Constitution. Death penalty cannot be saidas limiting the right to life, but rather as taking away the right completely.Death penalty cannot even be imposed even in an emergency situationbecause of its classification as a non-derogable right.

Unfortunately, the sanctity of the Constitution as the source of lawcannot be referred inherently by the Laws (Undang-undang). Mutatis mutandiswith the recognition of the right to life, all laws that provide provisionson death penalty cannot be enforced in Indonesia. But the acts ofcontradicting the constitution are still being carried out the lawmakersby retaining and proposing laws that provide provisions on death penalty.

The right to life is also recognized in Article 3 of UHDR, whichstates, “Everyone has the right to life, liberty and security of person.”According Eleanor Roosevelt and Rene Casin, two of the people whodrafted the UDHR, the right to life does not know exception. Theobjective of drafting that right was for death penalty to be abolished inthe future.32

32 Todung Mulya Lubis and Alexander Lay, Kontroversi Hukuman Mati: Perbedaan PendapatHakim Konstitusi [Death Penalty Controversy: Dissenting Opinions of Constitutional Court Judges],(Jakarta: Kompas, 2009), p. 13.


56


Death penalty that is principally in opposition with the right to lifecan also be found in the explanation of article 6 of the ICCPR. Article6 (1) definitively states:

Every human being has the inherent right to life. This right shallbe protected by law. No one shall be arbitrarily deprived of his life.

That provision then continued with the issue of the abolition ofdeath penalty in article 6 (2), which states:

In countries which have not abolished the death penalty, sentenceof death may be imposed only for most serious crimes in accordancewith the law in force at the time of the commission of the crime andnot contrary to the provisions of the present Covenant and to theConvention on the Prevention and Punishment of the Crime ofGenocide. This penalty can only be carried out pursuant to a finaljudgment rendered by a competent court.

The phrase of “in countries which have not abolished the death penalty”shows that death penalty is actually in contrary with the right to life thatis regulated in the previous article and it is hoped for that death penaltywould be abolished based on the assertion of the right to life. For thecountries that are still applying death penalty at the time where ICCPRentered into force, the death penalty shall be carried out in limitation andwith certain regulations as the first steps toward the abolition of deathpenalty. Furthermore, Article 6 (6) of the ICCPR definitively states:“Nothing in this article shall be invoked to delay or to prevent the abolition ofcapital punishment by any State Party to the present Covenant.” Having thatsaid, death penalty should be abolished and Article 6 (2) of the ICCPRshall not be used as a reason to delay the abolition of death penalty.

The efforts to abolish death penalty show that death penalty isinherently in contrary with the right to life as can be seen from theestablishing of the Second Optional Protocol to the International Covenant on

57

Civil and Political Rights aiming at the abolition of the death penalty. The OptionalProtocol was based on the belief that the abolition of death penaltywould have a major contribution to the advancement of the right to lifethat is also said to be the supreme right.

The efforts to abolish death penalty in Indonesia were also carriedout by submitting a judicial review of the Law No. 22/1997 on Narcotics,especially article 80 (1a), article 80 (2a), article 80 (3a), article 81 (3i),article 82 (1a), article 82 (2a), and article 82 (31), which all have deathpenalty in it. The request for a judicial review was submitted by EdithYunita Sianturi, Rani Andriani, Myuran Sukumaran, and Andrew Chan,who were sentenced to death under the Law on Narcotics. The requestwas submitted on the ground that death penalty was in contrary withthe 1945 Constitution, which guaranteed the right to life under article28A and its classification as a non-derogable right according to article28I (1). The request was rejected through a Constitutional Court DecisionNo. 2-3/PUU-V/2007 on October 30th, 2007.

In response to the argument that death penalty as regulated in theLaw on Narcotics has violated the right to life as guaranteed by Article28I (1) of the 1945 Constitution, the Constitutional Court stated that theright to life is included in the limitation of rights provision in article 28J(2) of the 1945 Constitution, therefore the limitation of the right to lifeis valid and is not violating the constitution.

The opinion of the Constitutional Court that said that the non-derogable rights are included in the limitation in Article 28J (1) of theConstitution was actually different with its previous decisions, whichwere Decision No. 019-029/PUU-020/PUU-III/2005 and DecisionNo. 013/PUU-I/2003.

In one of its legal considerations of the Decision No. 019-020/


58


PUU-III/2005 on judicial review of Law No. 39/2004 on Placementand Protection of Indonesian Migrant Workers in Foreign Countries,MK stated:

“The Court hold that human rights recognize important rightsfor the life of human beings. It could be said that among otherhuman rights, the right to life and the right to maintain life are veryimportant rights. Those rights are so important that Article 28I (1)of the 1945 Constitution asserts that the right to life as one of therights that cannot be reduced in any condition.”

In its Decision No. 013?PUU-I/2003, the Constitutional Court statedthat all human rights are subject to limitations, except otherwise stated:

“Considering that the article 28I (1) of the 1945 Constitution confirmed theprevious legislations and put the principle of aquo in the highest level of legislation(hogere optrekking) in the constitutional law. Constitutie is de hoogste wet! The statecannot negate the Constitution, because if so, undoubtedly the constitution has cuthis own flesh (de constitutie snijdt zijn eigen vless). Also referring to an expert, Dr.Maria Farida Indrati, S.H., M.H., the provisions in article 28J (2) of the 1945Constitution that opens a possibility for limitations of rights cannot be applied onArticle 28I (1), because of the existence of words (phrase) “in any condition”.

Considering that the Court argued that all human rights are subjectto limitation, except otherwise stated in the Constitution.”

The decision of the Constitutional Court that rejected the judicialreview of death penalty surely would not change the principal positionthat death penalty is not in compliance with the right to life. As a matterof fact, in the considerations of the decision also mentioned about therecognition that the ICCPR, which has been ratified by Indonesia, requiresthe abolition of death penalty. Hence the efforts to abolish death penaltyshould be continues and become an obligation for Indonesia as the stateparty of the ICCPR based on Article 6 of the ICCPR.

59

Chapter 5

The Objective of Punishmentand The Issues of Deterrent

Effect

Punishment or sentencing is one of legal sanctions in the form ofimposing suffering or something that is considered as bad or harmfulto the subject. Sentencing is a result of and a form of accountability formisdeeds/wrongdoings. Sentencing needs to be done for the reason ofreaching a specific objective, which is known as the objective ofprosecution.33

In criminal law, there are some theories of objectives of punishment,which among others are: Absolute Theory (retributive theory), RelativeTheory (preventive theory) and Unitary Theory. Retributive theory saysthat a crime itself contains elements that require prosecution and justifythe punishment for the crime. This theory can be divided into two:subjective, where the retribution is directed to the wrongdoing of theoffence because it is considered despicable; and objective, where theretribution is merely directed to the wrongdoing the offence hascommitted.

33 Explanation of Prof. Dr. B. Arief Sidharta, SH. in a Judicial Review, Case No. 2 – 3/PUU-V/2007. See Todung Mulya Lubis, Op. Cit., p. 236.

60


Preventive theory determines that punishment is needed in order tomaintain public order. The objective of punishment is to prevent theoccurrence of criminal offense. The nature of this type of punishmentis general prevention and special prevention. According to the generalprevention theory, the objective of punishment is a prevention that isdirected to public, so that everyone would not commit any violation ofpublic order. Meanwhile according to the special preventive theory, whatbecomes the objective of punishment is to prevent the wrongdoer tocommit another offense in the future and it is also a prevention to thosewho contemplating or planning criminal offense. Unitary theory puts itsthinking on the ground that punishment shall be based on the objectiveof retribution and to maintain public order, which are applied incombination with an emphasize on one of the elements without losingthe other elements as well as on all existing elements.34

Prof. Dr. Andi Hamzah, S.H. stated that the objective of punishmenthas developed toward a more rational direction. The oldest objective isrevenge or an objective to satisfy those who have resentment, whichcould be the society or those who are at loss because of the crime orthose who become the victims of the crimes. Other objective that isconsidered as old is expiation and retribution. The one that is consideredas an applicable objective nowadays is a variation of some forms, whichare deterrent, protection of the society from criminal acts, and correctionto offenders. The most modern and popular objective of punishmentis to correct offenders’ behavior.35

34 Syahruddin Husein, Pidana Mati Menurut Hukum Pidana Indonesia [Death Penalty underIndonesian Criminal Law], Criminal Law Department, Law Faculty of University ofNorth Sumatra, 2003. Also see Prof. Dr. Komariah EMong Sapardjaja, “PermasalahanPidana Mati Dewasa Ini di Indonesia [Recent Problems of Death Penalty in Indonesia”,www.legalitas.org.

35 Andi Hamzah, Sistem Pidana dan Pemidanaan Indonesia: Dari Retribusi ke Reformasi [CriminalJudiciary System and Criminalization: From Retribution to Reformation], (Jakarta: Pradnya Paramita,1986), p. 15-16.

61

As one of the punishment forms, the argument to retain death penaltyis to meet the objective of deterrent, whereas the objective to giveprotection to the society can be gained through life imprisonment, hencedeath penalty is unnecessary. In fact, death penalty is against the objectiveof punishment to correct the offenders. By itself, death penalty is also incontrary with the philosophy of punishment in Indonesia that emphasizeson rehabilitation and social reintegration for criminal offenders.

The deterrence theory states that the existence of death sentence asthe most severe punishment would deter people who can potentiallybecome offender in fear of receiving death penalty as a punishment.This is based on the assumption that the main function of punishmentsystem is to protect “greater good” and it can be fulfilled by showing anexample of consequence one would suffer for committing a crime.This view is rooted in the utilitarian theory of John Stuart Mill.36

However, there are some fundamental criticisms to the deterrenteffect argumentation, especially in the case of death penalty that areenough to make the reasons of retaining death penalty cannot bemaintained. O’Byrne raised four criticism to the argumentation ofdeterrent effect of death penalty.37

The first criticism is from the moral aspect. Death penalty that wasseen as scarifying a human for the interest of others has reduced humanityto become a mere tool to reach an objective. According to Prof. Dr. D.Arief Sidharta, S.H., this criticism means that death penalty is directly incontradiction with the point of departure and the objective of law itself,which is the respect of human dignity in togetherness. Death penaltydenies that sanctity of human life.38

36 O’Byrne, Op. Cit., p. 217.37 O’Byrne, Op. Cit., p. 217-219.38 Todung Mulya Lubis, Op. Cit., p. 237.

CHAPTER 5THE OBJECTIVE OF PUNISHMENT AND THE ISSUES OF DETERRENT EFFECT

62


The second criticism is in the form of a question on what aspect thatcould make death penalty has a greater deterrent effect than other typesof punishment, for example life imprisonment. That aspect is not seenin reality, especially in countries that still impose death penalty but seldomto use it as a punishment.

Third criticism confronts the assumption that one always acts rationallyand full of calculation. But the fact shows that murder cases that weresentenced with death penalty were a crime of passion and mostly werecommitted by people who were not capable to understand the complexityof law. More than 50 percent of murder cases in the USA werecommitted by those who were close to the their victim in the timewhere the offender lost his/her mind. Therefore the deterrent effectdid not work. Even more there were a lot of murder committed whenthe offenders were under the influence of drugs or alcohol that obstructthe rational capacity of the offenders.

The fourth criticism is that the real data shows that death penaltydoesn’t have a deterrent effect or at least it is not proven to have abigger deterrent effect than other types of punishment. A study in theUnited States in 1983 in 14 states that have abolished death penalty fromtheir legal system shows that in more than half of those states the crimerate has gone down, whilst in Nigeria, the murder rate goes up althoughthey still impose death penalty for such crime.39

As a matter of fact, it can be said that in the United States of America,the murder rate in states where death penalty has been abolished is lowerthan that in states where death penalty still applies. This can be seen fromthe data below.

39 O’Byrne, Op. Cit., p. 219.

63

Year Murder Rate in Death Penalty States Murder Rate in Non-death Penalty States

1990 9,5 9,16

1991 9,94 9,27

1992 9,51 8,63

1993 9,69 8,81

1994 9,23 7,88

1995 8,59 6,78

1996 7,72 5,37

1997 7,09 5

1998 6,51 4,61

1999 5,86 4,59

2000 5,7 4,25

2001 5,82 4,25

2002 5,82 4,27

2003 5,91 4,1

2004 5,71 4,02

Source: Death Penalty Information Center: Deterrence States without the Death Penalty Fared Better over Past Decade.

Table 6.Murder rate in the United States of America 1990 – 2004

(Per 100.000 populations)40

Other argumentation that refutes the deterrent effect of death penaltycan be based on the theory of William J. Chambliss, which divides thetypes of crime into two classifications and the effect of punishments.41

The first classification is based on the function of crimes, whichconsist of two types: (1) instrumental act, and (2) expressive act.Instrumental act is an act that is committed to gain certain goals fromthe act, such as tax evasion, vehicles theft to get an insurance claim, and

40 Todung Mulya Lubis, Op. Cit., p. 68.41 Steven Vago, “Law and Society, New Jersey, Prentise Hall, Englewood Cliffs”, 1999,

dalam Sosiologi Hukum, [in Sociology of Law]. Collected by Winarno Yudho, GraduateProgram of the Faculty of Law at the University of Indonesia, p. 174.


64


stealing. Expressive act is an act that is committed abruptly as an impulsiveand emotional act.

A hypothesis on those two types was raised, which is for crimes inthe form of instrumental acts, the sufferings and punishments as thelegal consequences have a bigger impact than those of expressive acts.This is because for instrumental acts, offenders make their own planand can measure the risks that they may face, including the punishmentsthat they may get when arrested. Meanwhile, for expressive acts theseverity of punishment would not have as much impact because theacts were carried out without considering the consequences.

Those two classifications are based on the level of commitment ofthe perpetrators/offenders to the crimes they committed. There aretwo types of commitment in this classification, which are (1) highcommitment and (2) low commitment. High commitment is an actwhere the offender has a high commitment to his/her crime. This act issomething important and binding for the offender’s life. Offenders inthis high commitment classification are those who commit a crime as aprofession, or a part of their way of life or can be said as spiritualmotivation, or because of psychological disorder, for examplekleptomania.

While an offender who has a low commitment is someone whocommits a crime in a certain condition due to negligence or a coercivecondition. In this second classification, the punishments would give asignificant impact the offenders. Someone who is being punished forplanning and committing a murder with a motive of revenge wouldthink twice to commit another murder compared to a professionalassassin.

According to those classifications of Chambliss, then there are four

65

types of act and offenders, which are:a. Instrumental high-commitment.b. Instrumental low-commitmentc. Expressive high-commitmentd. Expressive low-commitment

Instrumental high-commitment act is a crime that serves as a tool togain certain goals that is committed with a high commitment. This kindof crimes can especially be found in crimes that are carried out asprofessions, such as professional assassin, spiritual motivated crimes (wayof life), stealing and organized robbery, as well as other organized crimes(smuggling and drugs). For this type of crime, punishment would notgive too much impact although they are in the classification of instrumentalacts, whereas instrumental low-commitment act is a crime that iscommitted to reach certain goals (such as thievery and tax evasion becauseof financial demands). Crimes in this classification are not organizedcrimes. For this type of crime, punishment would have a big impact,especially if the offender has been punished before.

Expressive low-commitment act is a crime as an objective that iscarried out with a high commitment. This type usually happens becausethe act gives a satisfaction to the offender due to a certain motivation.The offender abruptly carries out an act when he/she sees or respondsto something that happens to him/her. Generally this kind of acthappens due to a mental/psychological disorder, such as kleptomaniathat would urge someone to steal, or an exhibitionist who would get theurge to show his/her genital when he/she sees the opposite sex.Punishments would not really give an impact to the offenders of thistype of crime.

Expressive low-commitment act is a crime as an objective that iscarried out with a low commitment, which usually happens due to a


66


Instrumental Acts Expressive Acts

High-Commitment Negative (4) Negative (3)

Low-Commitment Positive (1) Positive (2)

situation pressure. Punishments would really have a big impact to theoffenders. Offenders of this type of crime would not repeat their acts ifthere have been punished before, especially if it was a severe punishment.

Based on the above analysis, the significant classifications are classificationsthat are based on the commitment to the criminal acts. Nevertheless, ahypothesis could be put in levels according to the impact of punishment forthe crimes, from the biggest impact down to the smallest:

1. Instrumental Low-Commitment2. Expressive Low-Commitment3. Expressive High-Commitment4. Instrumental High-Commitment

Table 7.Types of Act and Impact of Punishment

Criminal acts that could get death penalty as the punishment in generalare acts that could be put into the category of both expressive acts andinstrumental acts, but most certainly are acts that are carried out withhigh commitment motivations. Premeditated murder that is punishablewith death penalty, regardless the motive, is an act that falls into thecategory of expressive act – high commitment. Murder that is committedby a professional assassin can be categorized as instrumental act highcommitment. Similarly with murder carried out by terrorists. Other crimesin many countries that are also punishable with death penalty areproducing and distributing narcotics and psychotropic. Those crimesfall into the category of instrumental acts because they are done in orderto achieve other purpose, and also fall into the category of high commitmentbecause they relate to a job that support the life of the offenders.

67

From the explanation above, the types of crime that is punishablewith death penalty fall into the category of criminal acts that are notactually impacted by punishments. In other words, death penalty willnot give a deterrent effect because from the types of crime that arepunishable with death penalty themselves according to its nature andmotives will not get impacted by the punishment imposed upon them.

Deterrent Effect v. Crime Rate

When viewed from its effectiveness, the imposition of death penaltythat is expected to be a sanction that would provide a deterrent effect tothe society, which further could give an implication to the reduction ofcrime rate from any types of crime, is not directly proportional with theexpectation, which is to minimize the crime rate.

Drugs cases can be a good comparison. Although many drugsoffenders have been sentenced to death but in reality drugs offence arestill rampant in Indonesia. International Narcotics Control Board (INCB)Annual Report 2004 stated that the number of perpetrators in drugsoffence increase each year. Each year the number of drugs offendersincreases in the ballpark of 26.8 percent, from 4924 people in 2001 to20,023 in 2005.42 According to Polda Metro Jaya, the district police ofJakarta, the number of drugs offence during the year of 2005 was 6613cases, which was 50.5 percent higher than in 2005, which were 4394cases. Meanwhile the crime rate in 2006 (79,586 cases) experienced araise from 2005 (72,826 cases) or around 9.28 percent higher.43 In Jakartaalone, within 8 minutes and 6 seconds one criminal act happened, whichfinally made up a total of 61,080 cases during the course of 2006. This

42 Detikcom, “Tersangka Tindak Kejahatan Narkoba Naik 36,8% per Tahun” [The Numberof suspect of Narcotics-Related Crimes has Increased to 36,8% per-year], 1 March 2006.

43 Detikcom, “Kasus Kejahatan Naik 9,28%, Paling Banyak Pencurian Berat” [The Numberof Crimes has Increase to 9,2%, Mostly on Heavy Theft], 27 November 2006.


68


number was an increase compared to the crime rate in 2005, whichwere only 58,027 cases. The increase was as much as 5.3 percent.44 Thecrime rate during January – August 2007 increased around 5.1 percentfrom the period of 2006.45

Based on above datas especially on drug offense, shows that deterrenteffect is ineffect. It can be showed by execution of three drug offendersin 2004. In fact, drug offense is increasing every year start from 2004until 2006.

From the facts above, it is only makes sense for Indonesia to throwaway the illusion that the objective of punishment is to reduce criminalacts. Because, the fall or rise in crime rate is not influenced but howsevere the punishments are. Sociologically, the main source of crimesand criminality is poverty, injustices, and symbiotic mutualism relationshipbetween the rulers and thugs/criminals.46

The facts mentioned above also shows that the imposition of deathpenalty is not directly proportional to the decrease of crime rate, and isunable to effectively create a deterrent effect to perpetrators of crimes.As explained previously, first, the legal paradox in Indonesia. Theimplementation in the laws is not relevant anymore since it was bornfrom a colonial regime. To this day Indonesia still uses legal clauses thatwere inherited from the Dutch colonial regime. Second, the laws thathave provisions on death penalty on one side actually have some

44 Detikcom, “61.080 Kejahatan di Tahun 2006, Kasus Narkoba Naik 50,5%” [61.080 CriminalOffenses in 2006, Narcotics-Related Crimes Increased to 50,5%], 28 December 2006.

45 Detikcom, “Kapolri: Kriminalitas Naik 5,1%” [National Police Chief: Criminal OffensesIncreased to 5,1%], 17 September 2007.

46 See Frans Husken and Huub de Jonge (eds.), Orde Zonder Order: Kekerasan dan Dendam diIndonesia 1965-1998, [Violence and Vengeance: Disontent and Conflict in New OrderIndonesia], translated by M. Imam Aziz, (Yogyakarta, LKiS, 2003).

69

weaknesses, which are full of interests and tend to be rigid. Third, on theother side, to get out of the monopoly of positivistic paradigm on theabolition of legal practices that see the laws as the only means of changingthe society’s attitude, an active role of the society is very much neededsince the society is the sole owner of the autonomous power to establishnew values in order to achieve changes in a more creative way and withutmost propriety. This is in order for the society to not losing theircreative abilities in achieving harmony and peace. Hence eradicating drugswith death penalty is not the answer. Criminological research also showsthat there is no deterrent effect in death penalty. Either as a means ofretributive or a means of deterrent, death penalty will not solve theproblems.47

The same goes with terrorist acts. Terrorist crimes are carried out onthe basis of certain belief and ideology. That is the reason why terroristswon’t be afraid of death penalty. Whatever broken will grow back,whatever lost will be replaced. In this case, the deterrence function ofdeath penalty would not be found in most political cases. Specifically onthe cases of terrorism, aren’t most of them willing to get involved in itwith an objective to be sentenced to death so that they could be ‘martyr’?

47 Prof. (Em). Dr. J.E. Sahetapy, S.H., M.A., Op. Cit., p. 72.


70


71

Chapter 6

Abolition of Death Penalty AsAn International Obligation

International human rights law firmly states that death penalty is againstthe principles that poured forth in the International Covenant on Civiland Political Rights (ICCPR). The right to life, which is written in ChapterIII Article 6 (1), states that every human being has the inherent right tolife. This right shall be protected by law. No one shall be arbitrarilydeprived of his life. Although Article 6 (2) states that in countries whichhave not abolished the death penalty, sentence of death may be imposedonly for the most serious crimes in accordance with the law in force atthe time of the commission of the crime and not contrary to theprovisions of the present Covenant and to the Convention on thePrevention and Punishment of the Crime of Genocide. This penaltycan only be carried out pursuant to a final judgment rendered by acompetent court. Article 6 (5) states that sentence of death shall not beimposed for crimes committed by persons below eighteen years of ageand shall not be carried out on pregnant women.

The International Covenant on Civil and Political Rights (ICCPR)was adopted in 1966 and entered into force since 1976. Realizing thatthe right to life is a part of non-derogable rights or rights that cannot bereduced in any situation, and death penalty proves unable to stop crimes,the international community agreed to adopt the Second OptionalProtocol of ICCPR aiming at the Abolition of Death Penalty in 1990.

72


This Optional Protocol firmly prohibits death penalty. To this day, thisoptional protocol has been ratified by 50 countries around the globe.

Many democratic countries, including the Netherland, have abolisheddeath penalty while doing an amendment to their constitutions. Thecommitment to abolish death penalty was done by harmonizing all lawsrelated to death penalty. Not only that, The Netherland is also bound toan agreement in a regional level with other members of the Council ofEurope that have agreed to adopt the Protocol No. 6 Convention forthe Protection Human Rights and Fundamental Freedom in 1983. Thisprotocol is an affirmation of the abolition of death penalty in peacetimealthough it gives a possibility of its practice in wartime or if there is animminent threat of war. Besides that, in term of extradition, TheNetherland also firmly refuse to conduct an extradition if a perpetratorof crimes is going to be sentenced to death in the receiving country.48

Even in dealing with gross human rights violations, the internationalcommunity realized their mistakes in imposing death penalty for warcriminals and crimes against humanity perpetrators in Nuremberg postWorld War II. For that reason, when there was similar cruelties in theformer Yugoslavia and Rwanda, two tribunals that were established bythe UN Security Council resolution, which were International CriminalTribunal for the Former Yugoslavia (ICTY) and International CriminalTribunal for Rwanda (ICTR), did not include death penalty as itsmaximum sentence in their statutes.

The same spirit can also be seen in the establishment of theInternational Criminal Court (ICC) by the adoption of the Rome Statuteof International Criminal Court on July 17, 1998 in Rome, Italy. TheICC started to enter into force in July 1, 2002. The governing authority

48 Jan Remmelink, Op. Cit., p. 403.

73

of the ICC that prosecutes the most serious crimes committed byindividuals, divides serious crimes into four types: the crime of genocide,crimes against humanity, war crimes, and the crime of aggression.49 Inall four categories, ICC does not at all include death penalty as a sentencein its statute.

The number of countries that have abolished death penalty hasincreased rapidly since the adoption of the ICCPR. In 1965, accordingto the report of Norval Morris to the UN on the status of death penaltyaround the world, there were only 25 abolitionist countries at that time,which consisted of 11 countries50 that have removed death penaltycompletely from their legal system and 14 countries51 that have abolisheddeath penalty for ordinary crimes in peacetime, and a state of NewSouth Wales in Australia.

The rapid progress of the abolition of death penalty can be seenfrom the following data. According to the report of the AmnestyInternational in 2007, the countries that have officially abolished deathpenalty for all crimes have reached 89 countries.

49 The crime of aggression, to this day, has not been specifically regulated and thereforethe authority to assess the occurrence of aggression is still in the hand of the UNSecurity Council based on Chapter VII of the UN Charter. Also see Roy S. Lee, Ed., TheInternational Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results, (TheHague: Kluwer Law International, 1999).

50 Colombia (1910), Costa Rica (1877), Ecuador (1906), Germany (1949), Honduras (1956),Iceland (1928), Monaco (1962), San Marino (1865), Uruguay (1907), and Venezuela(1863). Lihat As an additional to those are a state of Australia (Queensland) and ninestates of the United States of America (Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota,Oregon, West Virginia, and Wisconsin), as well as 24 out of 29 states of Mexico havecompletely abolished death penalty. See Roger Hood, The Death Penalty: A WorldwidePerspective, Third Edition, (Oxford: Oxford University Press, 2002), p. 10.

51 Austria (1950), Denmark (1933), Finland (1949), Israel (1954), Italy (1947), Netherland(1870), New Zealand (1961), Norway (1905), Portugal (1867), Sweden (1921), Swistzerland(1942), and UK (1965). Ibid.

CHAPTER 6ABOLITION OF DEATH PENALTY AS AN INTERNATIONAL OBLIGATION

74


Those countries are: Albania, Andorra, Angola, Armenia, Australia,Austria, Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria,Cambodia, Canada, Cape Verde, Colombia, Costa Rica, Cote d’Ivorie,Croatia, Cyprus, Czech Republic, Denmark, Djibouti, DominicanRepublic, Ecuador, Estonia, Finland, French, Georgia, Germany, Greece,Guinea Bissau, Haiti, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati,Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta,Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco,Montenegro, Mozambique, Namibia, Nepal, the Netherland, NewZealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines,Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tomeand Principe, Senegal, Serbia, Seychelles, Slovakia, Slovenia, SolomonIslands, South Africa, Spain, Sweden, Switzerland, Timor Leste, Turkey,Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu,Vatican, and Venezuela. Besides those countries, there are 11 countriesthat have abolished death penalty for ordinary crimes. They are: Argentina,Bolivia, Brazil, Chile, Cook Islands, El Salvador, Fiji, Israel, Kyrgyzstan,Latvia, and Peru.52

On top of that, there are 30 countries, which although have deathpenalty in their national legal system, but don’t use it in practice. Thosecountries are: Algeria, Benin, Brunei Darussalam, Burkina Faso, theRepublic of Central Africa, Congo, Gabon, Gambia, Ghana, Grenada,Kenya, Madagascar, Malawi, Maldives, Mali, Mauritania, Morocco,Myanmar, Nauru, Nigeria, Papua New Guinea, Russian Federation, SriLanka, Suriname, Swaziland, Tanzania, Togo, Tonga, Tunisia, and Zambia.

Meanwhile, there are 66 countries that still have and still impose deathpenalty these days. Those countries are: Afghanistan, Antigua and Barbuda,

52 Abolitionist and Retentionist Countries: More than half the countries in the world have now abolishedthe death penalty in law or practice, Amnesty International, Last updated: 11/09/2007.

75

Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana,Burundi, Cameroon, Chad, China, Comoros, Congo, Cuba, DominicanRepublic, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Guatemala,Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan,Kazakhstan, North Korea, South Korea, Kuwait, Lao, Lebanon, Lesotho,Libya, Malaysia, Mongolia, Nigeria, Oman, Pakistan, Palestine, Qatar,Saint Christopher & Nevis, Saint Lucia, Saint Vincent & Grenadines,Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan,Tajikistan, Thailand, Trinidad and Tobago, Uganda, United ArabEmirates, United Stated of America, Uzbekistan, Vietnam, Yemen, andZimbabwe

The abolition of death penalty can be officially done by making anaffirmation in the constitution of each country, or by removing all deathpenalty from existing positive law. The affirmation of the abolition ofdeath penalty in the constitution usually is related to the guarantee of theright to life and a guarantee that is related to the implementation ofjudicial power. It shows the existence of recognition that the right to lifecannot be derogated with death penalty, or in other words death penaltyin contradiction with the guarantee of the right to life. Below are someexamples of constitution of countries that have affirmed the abolitionof death penalty.

1. Icelandic ConstitutionArticle 69

No one may be subjected to punishment unless found guilty ofconduct that constituted a criminal offence according to the lawat the time when it was committed, or is totally analogous to suchconduct. The sanctions may not be more severe than the lawpermitted at the time of commission.Death penalty may never be stipulated by law.


76


2. Irish ConstitutionArticle 15

1. The Oireachtas shall not declare acts to be infringements ofthe law which were not so at the date of their commission.

2. The Oireachtas shall not enact any law providing forthe imposition of the death penalty.

3. Haiti ConstitutionArticle 20

The death penalty is abolished in all cases.4. German Constitution

Article 102 [Abolishment of Capital Punishment]Capital punishment is abolished.

5. Finnish ConstitutionChapter 2 - Basic rights and libertiesSection 7 - The right to life, personal liberty and integrity

Everyone has the right to life, personal liberty, integrity and security.No one shall be sentenced to death, tortured or otherwisetreated in a manner violating human dignity.

6. Constitution of Timor LesteSection 29 (Right to life)

1. Human life is inviolable.2. The State shall recognize and guarantee the right to life.3. There shall be no death penalty in the Democratic Republic

of East Timor.7. Croatian Constitution

Article 21 [Life, No Capital Punishment]( (1) Every human being has theright to life.( (2) In the Republic of Croatia there is no capital punishment.

8. Colombian ConstitutionArticle 11

The right to life is inviolable. There will be no death penalty.9. Cape Verde Constitution

77

Article 26 (The right to life and to physical and moral integrity)1. Human lives and the physical and moral integrity of the human

person shall be inviolable.2. No one shall be submitted to torture, cruel, degrading or inhumane penalties

and treatment and, in no circumstances, shall there be deathpenalty.

10. Cambodian ConstitutionArticle 32

Every Khmer citizen shall have the right to life, personal freedomand security. There shall be no capital punishment.

11. Belgian ConstitutionArticle 18

Civil death is abolished; it cannot be brought back into force.12. Austrian Constitution

Article 85 [Capital Punishment]Capital punishment is abolished.

13. Angolan ConstitutionArticle 22

(1) The State shall respect and protect the life of the human person.(2) The death penalty shall be prohibited.

14. Andorran ConstitutionArticle 8

1. The Constitution recognizes the right to life and fully protectsit in its different phases.

2. All persons have the right to physical and moral integrity. Noone shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment.

3. The death penalty is prohibited.15. Mozambique Constitution

Article 701. All citizens shall have the right to life. All shall have the right to

physical integrity and may not be subjected to torture or to


78


cruel or inhuman treatment.2. In the Republic of Mozambique there shall be no death

penalty.16. Micronesian Constitution

Article IVSection 9

Capital punishment is prohibited.17. Macedonian Constitution

Chapter II Basic Freedoms and Rights of the Individual and CitizenPart 1 Civil and political freedoms and rights

(1) The human right to life is irrevocable.(2) The death penalty shall not be imposed on any grounds

whatsoever in the Republic of Macedonia.18. Turkish Constitution

Article 38No one shall be punished for any act, which does not constitutea criminal offence under the law in force at the time committed;no one shall be given a heavier penalty for an offence other thanthe penalty applicable at the time when the offence was committed.The provisions of the above paragraph shall also apply to thestatute of limitations on offences and penalties and on the resultsof conviction.Penalties, and security measures in lieu of penalties, shall beprescribed only by law.No one shall be considered guilty until proven guilty in a court of law.No one shall be compelled to make a statement that wouldincriminate himself/herself or his/her legal next of kin, or topresent such incriminating evidence.Findings obtained through illegal methods shall not be consideredevidence.Criminal responsibility shall be personal.No one shall be deprived of his liberty merely on the ground of

79

inability to fulfill a contractual obligation.

Neither death penalty nor general confiscation shall be imposedas punishment.

19. Swiss ConstitutionArticle 10 Right to Life and Personal Freedom

(1) Every person has the right to life. The death penalty isprohibited.

20. Swedish ConstitutionArticle 4

There shall be no capital punishment.21. Slovenian Constitution

Article 17 (Inviolability of Human Life)Human life is inviolable. There is no capital punishment inSlovenia.

22. Slovak ConstitutionArticle 15 [Right to Life]

(1) Everyone has the right to life. Human life is worthy ofprotection even prior to birth.

(2) No one must be deprived of life.(3) Capital punishment is not permitted.(4) ...

23. Romanian ConstitutionArticle 22 [Life, Personal Integrity, No Death Penalty]

(1) The right to life, as well as the right to physical and mentalintegrity of person is guaranteed.

(2) No one may be subjected to torture or to any kind of inhumanor degrading punishment or treatment.

(3) The death penalty is prohibited.24. Portugal ConstitutionArticle 24 Right to Life


80


No Instrumen Hukum Penjelasan Keterangan

1 Universal Declaration of Human Rights, 1948

Article 3

The right to life

2 International Covenant on Civil and Political Rights (ICCPR), 1966

Article 6

A derivation of UDHR that the right to life includes in the non-derogable rights of rights that cannot be reduced in any situation.

Up to November 2nd, 2003, 151 countries have ratified it.

3 Second Optional Protocol of the ICCPR aiming at The Abolition of Death Penalty, 1990

This instrument aims at the abolition of death penalty

4 Protocol No. 6 European Convention for the Protection of Human Rights and Fundamental Freedom, 1985

This instrument aims at the abolition of death penalty in European region.

5 The Rome Statute of International Criminal Court, 17 July 1998

Article 7

This instrument does not have death penalty as a form of punishment

To this day, there are 94 countries that have ratified the Statute.

(1) Human life is inviolable.(2) The death penalty is applicable in no case.

25. Namibia ConstitutionArticle 6 - Protection of Life

The right to life shall be respected and protected. No law mayprescribe death as a competent sentence. No Court or Tribunalshall have the power to impose a sentence of death uponany person. No executions shall take place in Namibia.

26. Dutch ConstitutionArticle 114

Capital punishment may not be imposed.27. Nepal Constitution

Article 12 Right to Freedom(1) No person shall be deprived of his personal liberty save in accordance

with law, and no law shall be made which provides forcapital punishment.

Table 8.International Legal Instruments that Prohibit Death Penalty

81

Judgements of International and National CourtsIn Relation with Death Penalty

In many decisions of international and national courts related to casesof death penalty can clearly be seen a spirit to abolish death penalty.Judges in international level use international human rights law instrumentsas a reference, so do the judges in national courts use international humanrights law instruments to do an interpretation of their country’sconstitution.

Most of cases of death penalty that were brought to international ornational courts focus themselves on an issue of the unconstitutionalityof practices of death penalty, death row phenomenon and extraditionof perpetrators who were sentenced to death.

1. Unconstitutional Practices of Death Penalty

The most phenomenal decision related to the probing into theconstitution was done by the Constitutional Court of South Africa. Inthe case of State v. Makwanyane,53 in front of the South AfricanConstitutional Court made an interpretation of the section 9 on TheRight to Life an 11(2) of the Constitution of the Republic of SouthAfrica 199354 of section 227(1)(a) from the Criminal Procedure ActNo. 51 Year 1977, which regulates death penalty.

The panel of the Constitutional Court stated that section 227 (1)(a)of the Criminal Procedure Act No. 51 Year 1977 and all legal productsthat have provisions on death penalty are inconsistent with section 11(2)

53 State v. Makwanyane, Case No. CCT/3/94 [1995] 1LRC 29, Constitutional Court of theRepublic of South Africa, 1995.

54 Constitution of the Republic of South Africa, 1993, Section 11(2): “No person shall besubject to torture of any kind, whether physical, mental or emotional, nor shall anyperson be subject to cruel, inhuman or degrading treatment or punishment.”


82


of the Constitution of the Republic of South Africa 1993, therefore it cannotbe applied in South Africa.55

The panel of judges of the South African Constitutional Court usedthe 1993 Constitution that was written and passed during the transitionof the apartheid regime in the late 1990s. The spirit of respecting theright to life was reflected in the constitution. If we see the decision, it’sclearly that it was an ultra petita decision in which the ConstitutionalCourt reviewed one law but however decided to cancel all legislationsthat were considered as a threat to the right to life.

2. Death Row Phenomenon

The long delay of execution by the state to convicts on death row isoften called as a Death Row Phenomenon. This phenomenon is oftendone by countries that are still practicing death penalty that is consideredas a violation of the constitution in many countries.

In practice, each case where the execution is carried out five years afterthe sentencing enables the existence of a strong and convincing ground tosay that the delay is an inhuman or degrading punishment and other treatment.

In the case of Pratt v. Attorney General for Jamaica,56 theLordships of Privy Council interpreted section 17 (1) of the JamaicanConstitution.57 The Lordships “…found that 14 years delay on death row byitself was a violation of the constitution.”58 In the decision, the Lordships alsostated that each case where the execution was carried out five year afterthe sentencing enables the existence of a strong and convincing ground

55 State v. Makwanyane, Op. Cit., para [151](1).56 Pratt v. Attorney General for Jamaica [1994] 2 AC 1, [1993] 4 All ER 769.57 Jamaican Constitution, 1962, Section 17(1): “No person shall be subjected to torture or

to inhuman or degrading punishment or other treatment”.58 Pratt v. Attorney General for Jamaica, Op. Cit.

83

to say that the delay is an inhuman or degrading punishment or othertreatment.59

Other than that, there is also a connection between personalcharacteristics and death row phenomenon of delaying execution witha very bad condition of prisons. In the case of Soering v. UnitedKingdom,60 European Court of Human Rights also found a fact wherean applicant would face a practice that was called as death rowphenomenon, where in the state of Virginia, convicts on death rowhave to wait seven – eight years after the sentencing to be finally executed.

Departed from those facts, European Court of Human Rights alsoconsidered the condition of prisons, age and mental status of applicants.61

Therefore it is also violated Article 3 of the Convention for the Protectionof Human Rights and Fundamental Freedoms.62

Moreover, in the case of Catholic Commission for Justice and Peacein Zimbabwe v. Attorney General,63 the Supreme Court of Zimbabweinterpreted section 15 (1) of the Zimbabwe Constitution on prolongeddelay for 72 months and appellants live in a poor/harsh conditions.64

Therefore the Supreme Court passed a decision that a prolonged delay thatis more than 72 months and poor/harsh living condition is inhuman asregulated in section 15 (1) of the Zimbabwe Constitution.65

59 Ibid.60 Soering v. United Kingdom, 15 Eur.Ct. H.R. at 15 (1989).61 Ibid.62 European Convention for the Protection of Human Rights and Fundamental

Freedoms, art 3, Nov 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 221, ETS 5:“No one shall be subjected to torture or to inhuman or degrading treatment orpunishment”.

63 Zimbabwe v. Attorney General, Supreme Court of Zimbabwe, 199.64 Zimbabwe Constitution, 1979, Section 15(1). Section 15(1) reads in full:” No person

shall be subjected to torture or to inhuman or degrading punishment or other suchtreatment”.

65 Ibid.


84


In the case of Johnson v. Jamaica,66 the decision of the UN HumanRights Committee on prolonged delay but the condemned person shouldlive in a condition where there are compelling circumstances of thedetention, suggested that the detention is in violation of the ICCPR.

3. Extradition of Death Convicts or PersonsPunishable with Death Penalty

The issues of extradition also received an attention, considering thatin practice offenders who are punishable with death penalty or deathconvicts are often being extradited by the countries that arrested them.But European countries have determined not to extradite offenderspunishable with death penalty to his/her country of origin.

This can be seen from the case of Soering v. United Kingdom wherethe applicant, Jens Soering, a 22-year-old German, was going to beextradited to the USA by England in the case of murder in the state ofVirginia in 1985. European Court of Human Rights saw the responsibilityof the member states of the convention and it also becomes a part ofthe state’s obligation to guarantee the right of the applicant in theExtradition Treaty.67

According to the European Court of Human Rights, theimplementation of extradition would put applicants to a possible realrisk of being sentenced to death, in which it violates Article 3 of theConvention for the Protection of Human Rights and FundamentalFreedoms.68

66 Johnson v. Jamaica, Op. Cit.67 Soering v. United Kingdom, Op. Cit.68 Ibid.

85

Aside from having bound to the international human rights lawinstruments, European countries are also bound to the regional legalinstruments. Not only that, they are also bound to each regional courtsdecision. So it is not surprising at all that the spirit to abolish deathpenalty is really put into practice in the regional level across Europe.Another trigger is the European integration efforts that also influencethe national laws of European countries, which was preceded by themaking of an agreement on the abolition of death penalty as an integralpart of the European criminal law.


86


87

Chapter 7

Religion and Death Penalty

One of the most contentious debates in the history of human rightsdiscourse is the question of whether human rights as a norm are universalby nature or not. Even though this particular debate is no longer a newthing, since it has been emerged during the formulation process of theuniversal declaration more than fifty years ago, but it has to be admittedthat looking at various studies on human rights in various cross-disciplinestudies and the dynamics of acceptance from the people towards humanrights, there are still ongoing tensions and debates on that particularissue. This debate involves two opposite poles. The first pole representsthe universalism claim of human rights based on the perspective thathuman rights as a norm is universal and therefore it could go beyondthe restrictions of culture, religion, etc; while the second pole standsagainst it, i.e., stands on the cultural relativism argument and perceiveshuman rights was born in a particular experience of the western culture,hence human rights is not universal and cannot be imposed upon societiesthat have different experience and value basis than the west.

As a discourse, this debate surely enriches discourses and stimulatesvarious advanced studies on human rights from various perspectives.Not only limited to legal perspective that has been dominating the issuethese days. However, when human rights, which have been evolvingsince 1948 and manifesting itself into legal instruments both internationallyand nationally, and as a consequence, need implementation of its

88


provisions, tensions and collisions always emerge between the two poles.This fact, for instance, can be seen in the portrait of human rightsimplementation in the Eastern hemisphere, which, nota bene, has strongroots and solid ground towards culture and religion as the basis of theirlife, despite the fact that their countries have adopted or already hadnational instruments. This tension can be seen in the acceptance and theimplementation of some rights under the particular human rightsprovisions. In this context, it reflects dualism of acceptance. On oneside, they accepted a set of human rights but on the other side, therewere rights that they decline. For instance, the debate on the practice ofdeath penalty.

As it has been mentioned in the previous chapter, under human rightsinstruments, the right to life is categorized as a non-derogable right inany circumstances. This right is inherent in every individual as well asother rights that are naturally universal. In reality, the implementation ofthis particular right has to face against value systems, particularly religiousvalues that are still debating the status and position of this right. Forinstance, Islam that refers to a particular interpretation that perceivesdeath penalty is a provision recognized by Islamic law. Therefore, insome Muslim predominant countries (also in Indonesia), the practice ofdeath penalty still applies or at least remains under their national legalprovisions despite the fact that human rights instruments have prohibitedit. Based on the debate between the two poles of values, the impositionof death penalty is also an issue influenced by this religious perspectivedimension, other than political dimension and other created arguments.Based on this background issue, it is therefore necessary to conduct astudy on religious dimension in order to construct a dialogic framebetween religion and human rights norms. Logically, when the two setsof values claim themselves universal, they are supposed to be inherentlycompatible.

89

A. Islam

1. Islam and Human Rights

As of the adoption of the Universal Declaration of Human Rights(UDHR) in 1948 by the United Nations, the idea of human rights hasbeen universalized and globalized. Today, almost every country in theworld has accepted human rights and some among them have adoptedit as part of their national legal system. Moreover, human rights havealso become a standard indicator of civilization of modern society.However, the universalization and globalization processes of humanrights do not necessarily make it become easily accepted. In fact, tensionsbetween human rights and other norm systems still exist. The tensionsexist, for instance, in Muslim predominant countries. In this context,human rights intensely confront Islamic values.

Tensions between Islam and human rights have been lasting for avery long time, particularly on several rights. For instance, the right toreligious freedom, the right to life in regard to the practice of deathpenalty, etc.

This tension was triggered by the universality claim of each normativesystem, which has not only hampered them in finding a common ground,but also created a tendency to subordinate each other in the dialogueprocess between them.

While the tension was not supposed to happen in the relationshipbetween the two value systems, which are claimed to be universal. Islamas a rahmatan lil’alamin religion and the universal human rights conceptare, by nature, supposed to have a common ground, accommodative,and supportive among each other. If the reality shows the other wayaround, there is a question on why there is a tension between the two

CHAPTER 7RELIGION AND DEATH PENALTY

90


universal values? Do both systems not have compatibility, and hencelead them to tension and contestation? Or was the issue caused by wrongperception, and hence conceals the essential values of the two systemsthat cannot be reconciled?

The relationship with other norm systems, particularly with Islam,has become a big challenge for human rights. This is a general reality thathas to be dealt with when it comes to the particular value system. In thecontext of pluralistic values, it often becomes difficult to establish auniversal standard value that can be a common ground. Abdulah Ahmedan-Naim explains that the difficulty exists because “every tradition hasits own source as a reference of truth of each doctrine and norm”. “Ifa cultural tradition, particularly religious tradition, engages with othertraditions that are completely different from it, the affiliation will beheld in negative ways and perhaps in hostility. Since, generally, a traditionwill express it superiority over other traditions in order to gain loyaltyand submission from its followers”.69

However, apart from the polarization and contestation, thereconciliation project between Islam and human rights must be built inorder to find a common ground. Moreover, naturally, the two universalsystems are basically not contradictive despite the fact that they havedifferent value basis. The problem that have existed all this time betweenIslamic and human rights values are oftentimes cannot be separatedfrom the historical and political contestations between the two, thereforesuspicion and hostility always underlie their relationship and dialogues.Although it is recognized that a value system cannot be separated fromits socio-history, but the effort to separate that consideration becomes

69 Abdullah Ahmed an-Na’im, “Syari’ah dan Isu-Isu HAM”, [Sharia and Human RightsIssues], in Charles Kurzman (ed.), Wacana Islam Liberal, [Discourse of Islamic Liberal],(Jakarta: Paramadina, 2001), p. 371.

91

important in the reconciliation context, hence the collision between themwill be limited to normative level only.

Abdullah Ahmed an-Na’im argues about the importance to distinguishbetween human rights as a particular western historical product andhuman rights defined in the UDHR and other international human rightslaws. Without distinguishing them, every value system outside humanrights would build the understanding of human rights definition basedon its own society’s experience. For instance, Muslim predominantcountries would formulate their own concepts of human rights that aredifferent from the United Nations UDHR. Moreover, he also arguesthat human rights defined in the UDHR are the key features and thusessentially, the concept is universal by nature.70

There are three interrelated reasons to justify the universality of humanrights. First, moral and philosophical grounds and the justification ofhuman rights as defined by UDHR can be found in various religionsand traditions. Second, reconciliation is important because the value ofinternational human rights protection can control the state abuse of power.Since the model of nation-state has been universalized throughcolonialism, there is a need for effective protection from the excessivestate power. Universal fundamental rights under the UDHR are the bestdefinition to give such protection. Third, interpretation of theologicaldimension, in the process itself, it has to be understood in a specificpolitics, social-economic context of the particular religious and beliefgroups. This “context” is a framework in which reinterpretation ofreligious teachings can emerge and be accepted in practice.71

70 Abdullah Ahmed an-Na’im, “Islam and Human Rights: Beyond the Universality Debate”,in the American Society of International Law, “Proceeding the 94th Annual Meeting”, 2000,p. 95.

71 Ibid, p. 95-96.


92


2. Finding a Common Ground: Islamic Perspective

As a universal religion (rahmatan lil ‘alamin), Islam has moral groundand ethical principles as well as law that can be made as a foundation touphold the idea of human rights. Since Islamic values are universal, thennaturally the values are not supposed to have any clash with variousuniversal value systems that came and sourced from other traditions.The important thing in that context is that how to understand thetheological aspect of Islam in a more contextual way in order to findthe ground for universal human rights and Islam.

3. The Qur’an’s Perspective on Human Beings

Islam perceives the position of human beings with a very high value.This can be seen in the reaffirmation of Koran on human beings, whichif being understood deeply and clearly, will show the same spirit withthe reaffirmation in the UDHR. Essentially, both reaffirmations are notvery different, since they both perceive and enshrine all human beings asGod’s creatures with very noble and high positions. Article 1 of theUDHR states that “All human beings are born free and equal in dignityand rights. They are endowed with reason and conscience and shouldact towards one another in a spirit of brotherhood”. Long before theUDHR was adopted in 1948, or before the concept of human rightsemerged during the 18th century in Europe, Islam, through Qur’an, hasalso stated and reaffirmed the position of human beings in such spiritualdescription.

And so the Qur’an, in a different language but containing the samespirit, has reaffirmed that human beings are special creatures. Humanbeings are created in the finest shape among other creatures created byGod. Due to their position as a special creation, human beings areprovided by God with some attributes, especially with reason that

93

distinguish them from other creatures, like angels, devils, or animals. Inone article the Koran illustrates how God had ordered the angels to fallprostrate before Adam, while the Devil that had also been ordered thesame thing, refused to do so because it felt that it was more superior(arrogant) than Adam (Qur’an Chapter 15: 29; 38:72).

In this special context, God chose and appointed human beings tobear the responsibility as God’s representatives (khalifah) on earth in theefforts to conduct and disseminate the divine mission. With the positionas khalifah, human beings are provided with a set of rights andresponsibilities.

Regarding to the articulation of human beings in the article that doesnot refer to a particular sex either women or men, shows that the statusof being perfect creatures with the attributes attached are inherited toevery human being regardless their sex. In other words, the particularterm illustrates that basically, there are no differences between men andwomen as human beings. Each of them is a khalifah who are providedwith the same attributes in the form of reason to accomplish their missionon earth.

Its correlation with the UDHR can also be found in an article thatsays:

“O people, we created you from the same male and female, and rendered youdistinct peoples and tribes that you may recognize one another. The best amongyou in the sight of God is the most righteous. God is Omniscient, Cognizant”(Qur’an Chapter Al-Hujurat: 49/13)

The article above reaffirms the equality among human beingsregardless their sex, men or women, since before God, the only thingthat distinguish between a human being and another human being is thelevel of his/her submission. Different characteristic of ethnicity and


94


nationality are also not the reason for hostility among human beings,instead they are supposed to get to know each other, or in the UDHR itis called “the spirit of brotherhood”.

Furthermore, the Qur’an uses two different words to refer humanbeings, namely basyar and insan. The article that calls human being asbasyar (mortal), for instance, is “I am only a mortal like you” (18:110).While an article that shows the word “insan” (man) is “and man is everhasty”(17:11). Although they refer to the same object, the two wordscontain different meanings regarding to the creatures namely humanbeings. Ali Syari’ati72 explains that the word basyar is more referring tohuman as a “two feet creature that emerged at the end of the series ofevolution”. While the word insan, on the other hand, refers to “peculiarcreatures that are full of mystery who have a specific definition thatcannot be applied to other phenomenon in the universe”.

Human beings referred by the word basyar are creatures defined ashaving the “physiological, biological, and psychological characteristicsowned by all human beings”, regardless their sex, status, and otherbackgrounds. While the definition of human beings in the word insan is“consisted of truth to become insan”, who have extraordinarycharacteristics, in which every human being achieves a certain level ofhumanity (insaniah). Referring to the different definitions of the twowords, all human beings living on earth are basyar, but not all of themhave obtained the humanity level of an insan, or at least are in the processof obtaining that level.

The basyar type of a human being has some unpleasant characteristics.Ali Syari’ati furthermore argues that the basyar type has “ a desire to kill

72 Ali Syariati, “Islam dan Kemanusiaan”, [Islam and Humanity], in Charles Kurzman (ed.),Wacana Islam Liberal, [Discourse of Islamic Liberal], (Jakarta: Paramadina, 2001), p. 300-303.

95

each other” and shedding bloods, destroying each other, and so forth.The history of basyar is a history of “self-humiliation and suicide”. Syari’atidefines that historical phenomenon as a history of human ignorance.However, Syari’ati argues that human beings are basically noble creatures.They have good, ideal, and noble characteristics but those characteristicshave to be obtained. Since those characteristics are not inherently attachedto the basyar type of human beings. Therefore, every basyar who wantsto obtain that level needs to have a continuous process that does notstop and unlimited.

There are three main characteristics of human beings who have obtainedthe insan level, i.e., first, they have self-awareness; second, they have the abilityto choose; third, they have the ability to create. Those are the three maincharacteristics and it can be derived to other characteristics. However,those characteristics are only owned by insani type of human beings, hencenot all human beings under the basyar type have them. Nonetheless, withthe clear concept of ideal human characteristics, the next thing to do is toidentify and eliminate all constraining factors that prevent basyar type ofhuman beings from obtaining the three characteristics in order to proceedto become insani type of human beings.

4. Maqashid Sharia: For the Benefits (Maslahat) ofHuman Beings

For Moslems, Sharia is a way of life. It is considered as holy andpermanent legal provisions. But, if we saw it from the historical context,then we can see that the construction of understanding of Sharia needs tobe deconstructed. Given what is regarded today as the sharia was a resultof the construction of understanding (fiqh) of ulemas/scholars and juristsin the 8th – 9th century that interpreted the sources of religious rights,namely the Qur’an and Hadith. To make this sharia becomes contextualand able to respond to the current social development, the historical


96


construction process should be well understood and there should be a re-contextualization of shariah to enable it to respond the currentdevelopment. One of it is how to respond to the ideas of human rights.

Futhermore, the basis of reactulization and re-contextualization ofsharia has always been provided by the principle of Maqashid Sharia or theprinciple of the establishment of Islamic law that was initiated by someulemas and jurists of salaf. Maqashid Sharia needs to be oriented towardthe benefit of all human beings. This aspect of benefits is an importantfoundation in the formulation of Islamic law, and in responding to thesocial situation that keeps developing. This demand is actually in accordancewith the vision of Islam itself as a universal religion or rahmatan lil’alamin.Therefore, what need to be achieved are not only the benefits for Moslems,but also the benefits for other non-Moslem people.

Quoting the point of view of Imam Al-Syathibi, there are four formsof maqashid sharia: first, religious sharia was passed down for the benefitsof human beings. The benefits are divided into three parts: dlarûriyyahor emergency benefits such as mind, soul, wealth, generation/broodand religious benefits; hâjiyyah or secondary benefits, such as food, clothesand housing needs; and tahsîniyyah or tertiary and complementary benefits,such as the needs for pleasure and recreation. Second, religious sharia waspassed down for human to understand. This principle emphasizes thespirits of contextuality and historicity of the maqashid so that it staysactual and relevant in all space and time. Third, is taklif, which is theimposition of religious obligations to mankind should be within theframe of capabilities and limitation of human beings. God Almightywill not burden a person beyond his/her capacity and power. Fourth, tofree human beings from the confinement of his own lust and desires.73

73 Quoted from Ahmad Baso, “The Origin of Fiqh, History,” downloaded from thewebsite http://www.wahidinstitute.org/indonesia/content/view/149/52/1/3/.(Downloaded on 13 Februari 2009).

97

The principle of maqashid sharia actually could be a foothold tobuild a synergy between Islam and human rights. By using the frameworkof Al-Syatibi’s thinking on benefits as the goal of sharia, the ideas ofhuman rights are not a foreign concept in Islam. This refers to the fivebasis of protection (al-Kulliyatul Khams) that was put into a concept byal-Syatibi as maqashid sharia. These five bases of protection are: protectionof religion (hifdzul an-nasl), protection of life (hifdzul al-haya), protectionof mind (hifdzul al-aqli), protection of generation/brood (hifdzul an-nasl),and protection of wealth (hifdzul al-maal). The five basis of protection(of benefits) should be the foundation of the establishment of law andshould not go out of the five principles.

Furthermore, in any situation where human rights are the main normsin the relation of society nowadays, the human rights concept can beused as a measurement of benefits themselves. The availability ofguarantee and protection of human rights can be considered as theinterests of or benefits for all humankind. If the concept of five-basisprotection in the sharia were converted into a concept of human right,then we could clearly see the relevance and correlation between the two.From those principles (al-Kulliyatul Khams) emerge some categories ofhuman rights that should be guaranteed and protected, as well as shouldbecome the attention of the sharia itself. Those rights are: protection offreedom of faith, protection of one’s life, protection of freedom of thinking, right forprocreation, and right for property.

5. Islamic Punishments and Death Penalty

Among the categories of human rights that have become a seriousdebate between Islam and human rights supporters on the right to lifein relation with the practice of death penalty. In UDHR and other humanrights instruments such as the International Covenant of Civil and PoliticalRights or the European Convention on Human Rights, the right to life is


98


a part of human rights that should be guaranteed and protected.Moreover, many human rights instruments out the right to life as a rightthat falls into the category of non-derogable, or a right that cannot bereduced in ay situation. In a number of countries, especially in Europe,the efforts of the advancement of this right encourage them to abolishthe practice of death penalty that is considered as a cruel and inhumanepunishment.

In spite of that, some countries where the majority of the populationis Moslems, such as countries in the Middle East and also Indonesia, thepractice of death penalty is still being carried out. The imposition of thispunishment is based on the country’s legal foundation, which refers tothe Islamic laws. The efforts to abolish death penalty in those countriesbecome very strenuous due to the fact that the practice of that punishmentgain a basis of legitimacy from the Islamic law.

The legitimacy basis of the practice refers to some forms ofpunishment (hudud) that are stated in the Qur’an. Muhammad Sa’id al-‘Ashmawi74 explained that punishments (hudud) as stated in the Qur’anonly mentions four types of crimes. For example for thievery cases thepunishment should be by cutting the offender’s hands, adultery cases ispunishable with 80 times flogging, and robbery is punishable with deathexecution, crucifixion, exile or imprisonment. While the form ofpunishment for apostasy (riddah) or for drinking alcoholic beverages arenot explicitly being mentioned in the Qur’an.

Specifically, the practice of death penalty in some Islamic countries isusually being based on the context of qishas that is mentioned in the Qur’an.The legal context of qishas refers to acts of wounding, beating and killing

74 Muhammad Sa’id al-‘Ashmawi, “Syari’ah: Kodifikasi Hukum Islam” [Shari’a:Codification of Islamic Law], in Charles Kurzman (ed.), Wacana Islam Liberal [Discourseof Islamic Liberal], (Jakarta: Paramadina, 2001), p. 43-48.

99

(Qur’an Chapter 2: 127). Muhammad Sa’id al-‘Ashmawi, in that contextexplains that the qishas of beating and wounding is actually only mentionedin one verse, which is related to the law that applies on Jewish religion(Qur’an Chapter 5: 45) and a legal provision that should be imposed onMoslems. The punishment of “eye for eye, tooth for tooth” in Islamiclaw was first introduced by the previous fuqoha’ (experts on fiqh or Islamicjurisprudence) by referring to a statement which stated “the previous lawsbind us all except those that have been lifted/removed (nasakh).”

Furthermore, in general Qur’an contains moral commands ratherthan legal commands. This can be seen from the fact that around out of6000 verses in the Qur’an, only 200 verses that have legal aspects, includingverses that have been removed by the next verses. This is due to theemphasis of Qur’an is actually more on how to induce guilt in everyhuman being, to awaken consciousness and to develop morality aspresented in the verses of Qur’an.

Although in there are a total of 200 verses in the Qur’an that havelegal aspects but the implementation process is not easy because it requiresa number of conditions that should be met. One of the conditions, forinstance – as al-‘Ashmawi saw it as the most important condition – isthat someone has to be in a virtuous and religious society that guaranteepolitical, economic and social justice. The existence of that conditionbecomes very important because a legal decision that rested on Islamiclaw should not lead to the purpose or interests of others, and is notimplemented by unjust government or a corrupt court.

There are a number of Prophet Muhammad’s hadith that can be usedas a prop that Islamic law should be established wisely and justice-oriented.For example is the Prophet’s hadith that said: “Have a mutual compassionwith each other in the application of law.” In other hadith, the Prophetalso said: “Avoid the execution of punishment if there is doubt.”


100


6. Considering The Abolition of Death Penalty inIslam

From a number of normative principles and Islamic law asexplained above, Islam indeed has a basis that is equal to human rights.Both attempt to put human beings in the highest and most nobleposition, and encourage human beings to achieve the best conditionsof life. By looking at the similar ethical aspects between two, then thedebate on some categories of human rights is unnecessary to occur,especially that of the right to life. In this context, death penalty as apunishment that violates the right to life becomes very crucial to bereviewed of its application.

This is based on several reasons: first, taking away one’s life isactually in opposition with the point of view of Islam about thecreation of human beings as perfect creatures who are ‘better’ thanother creatures (khalifah). This foundation of Qur’an bore aconsequence where the view and treatment to every single humanbeing should be in accordance with the context of creation. In otherwords, taking away the right to life is the same as breaking the God’swill of human creation. Not to mention no one has the right to endsomeone’s life but the Creator Himself; second, human rights anddemocracy can be used as a measurement of the benefit in sharia,because the right to life is a fundamental right, hence depriving theright to life is an act that is far from respecting the benefit mentionedin the sharia. This is consistent with the principle of five basis ofprotection (al-Kulliyatul Khams), in which one of them being protectingthe soul (hifdzul nafs) as a goal of the establishment of sharia (maqashidsyariah).

101

B. Catholic and Christian75

Catholic and Christian have almost the same view on the practice ofdeath penalty. Catholic even has a consistent view as a pro-life supporterin a variety of Church documents that were well recorded. Some of theimportant documents on death penalty are as follow:76

1. 18-12-1208 Letter of Pope Innocent III Eius Exemplo to theArchbishop from Terragonta on the confession of faith that is requiredfor Waldensians (the followers of Peter Waldo) added in 1210. (Ep.“Eius Exemplo” Innocentii III ad archiep Terraconensem (additum anno1210). Professio fidei Waldensibus praescripta, DS 795) 18-12-1208

2. 1566 Roman Catechism (Catechismus Romanus)3. 10-02-1880 Leo XIII, encyclical “Arcanum” (Litt. Ecncyl XIII

Arcanum)4. 27-11-1940 Decree S. Officium (Decretum S. Officium)5. 12-11-1944 Address of Pope Pius XII to the Association of San

Luca Doctors6. 14-09-1952 Address of Pope Pius XII on histopathology (lis qui

interfuerunt Conventui primo internationale de hispatologia systematis nervorum,AAS 44 (1952) 787)

7. 03-10-1953 Address of Pope Pius XII to the participants of theInternational Congress of Criminal Law (list qui interfuerunt IV Conventuiinternationali de iure poenali, AAS 45 1953) 739-744)

75 Most of it was extracted from Focus Group Discussion (FGD) “Relevansi Hukuman Matidan Hak Hidup yang Dijamin oleh Konstitusi” [The Relevance of Death Penalty andThe Right to Life That is Guaranteed by the Constitution], Sahid Hotel, Jakarta, 26-27November 2008.

76 The Indonesian Conference of Bishops, Hukuman Mati [Death Penalty], EcclesiasticalDocument Series No. 87 (Jakarta: Department of Documentation and Information ofthe Indonesian Conference of Bishops, 2006).


102


8. 05-12-1954 Address of Pope Pius XII to the Catholic Jurists of Italy(lis qui interfuerunt VI Conventui nationali Sodalium Consociationis ex iurisperitis catholicis Italiae AAS 47 (1955) 60-71)

9. 05-02-1955 Address of Pope Pius XII to the Catholic Jurists of Italy(lis qui interfuerunt VI Conventui nationali Sodalium Consociationis ex iurisperitis catholicis Italiae AAS 47 (1955) 72-85)

10. 11-10-1992 Catechism of Catholic Church, art. 2266-2267 (Cathecismede l’Eglise Catholique art. 2266-2267)

11. 25-03-1995 Encyclical of Pope John Paul II “Evengalium vitae” art.55-56 (litt. Encycl. Ioannis Pauli II “Evengalium vitae” art. 55-56)

12. 15-08-1997 Catechism of Catholic Chruch, art. 2266-2267 (CathecismusCatholicae Ecclessiae (edition typical) art. 2266-2267)

13. 24-10-1998 Address of John Paul II to the Bishops of the EpiscopalConference of the United States of America (Ad limina)

14. 25-12-1998 Christmas Day Message of Pope John Paul II15. 29-03-1999 Address of John Paul II to the Parliamentary Assembly

of the Council of Europe16. 02-11-1999 Europe Intervention by. H.E. Archbishop Renato R.

Martino, Apostolic Nuncio, Permanent Observer of the Holy Seeto the United Nations before the Third Committee of the 54th Sessionof the General Assembly on Item 116A [Sic] “Abolition of theDeath Penalty”

17. 22-01-1999 Apostolic Exhortation of Pope John Pau II”Ecclessiain America” art. 63

18. 27-01-1999 Homily of His Holiness John Paul II19. 13-09-1999 General Audience of Pope John Paul II20. 21-06-2001 Declaration of the Holy See to the First World Congress

on the Death Penalty

Those documents showed the progress of Catholic view of thepractice of death penalty in many countries and certain cases. The Catholictheological basis in denouncing death penalty was based on the belief

103

that life is the possession of God, which existence cannot be replacedby any other entity.

Human beings were created according to the image of God (ImagoDei), which means the creation of human beings was God’s will andtherefore only Him can decide the life and death of human. This viewwas a quite revolutionary progress since the Catholic Church supportedthe inquisition actions of the adherents of heresy to be executed in courtsin European countries in the middle ages.

According to the Catholic Church, there are four purposes inpunishment, which are rehabilitation, defense of society, deterrence andretribution.77 First, rehabilitation means that death penalty closes allpossibilities of integrating offenders back into the society.78 Second,defense of society is something important and an improvement ofcriminal system so that execution/death penalty would be rarely conductedand become the only effective way to protect the society.79 For thisreason, Pope John Paul II in the “Evangelium Vitae” said:

“It is clear that, for these purposes to be achieved, the nature and extent ofthe punishment must be carefully evaluated and decided upon, and ought not go tothe extreme of executing the offender except in cases of absolute necessity: in otherwords, when it would not be possible otherwise to defend society. Today however,as a result of steady improvements in the organization of the penal system, suchcases are very rare, if not practically non-existent” (No. 56).80

77 Cardinal Avery Dulles, “Catholicism and Death Penalty” in The Indonesian Conferenceof Bishops, Death Penalty, Ecclesiastical Document Series No. 87 (Jakarta: Departmentof Documentation and Information of the Indonesian Conference of Bishops, 2006),p. 36.

78 Ibid, p. 37.79 Ibid.80 The Indonesian Conference of Bishops, Op. Cit., p. 14.


104


While the third, which is deterrence purpose. The Catholic traditionrejects the use of cruel violence such as mutilation and torment or actionsthat cause pain and create fear as part of punishment method.81 ThePastoral Constitution on Church in Modern World in Vatican Councilexplicitly rejected mutilation and torment, as those insult human dignity.82

Besides that, according to the Catholic Church, sociological proof onthe deterrent effect of death penalty is ambiguous, that is conflictingand far from being proven.83

Fourth, in a matter of the retribution purpose by using death penalty,according to the Catholic view, is a statement and not a divine judgmenton objective wrongdoing but rather a collective anger of a group.84 Theretributive purpose of punishment has been misinterpreted as an outletof vengeance that obtrudes oneself.85

Not a far cry different from Catholic teachings, Christian view alsofocuses on the concept of love, which is the main essence of Christianteachings. With love or compassion, human beings who are the creationof God shall not use violence in solving conflicts in this world. Loveand life are a one concept that is mentioned in one breath, therefore theuse of violence is considered as a desecration of the concept.

Hence, in the concept of compassion/love, human beings with theircapabilities are not an entity that can replace the position of God inhuman’s life. Retribution by human by using death penalty is a directintervention to God’s authority as the creation of life. Retribution toeven the most serious crimes can only be carried out by God and only

81 Ibid.82 Ibid.83 Ibid.84 Ibid.85 Ibid.

105

Him can take the life of human beings from the face of the earth.Therefore it can be interpreted that the Christian teaching rejects deathpenalty as one method of punishment that is still adopted by somecountries.

C. Hindu and Buddha86

Hindu and Buddha are the oldest religions on earth that prohibit theuse of violence against each other. Both religions also count heavily onthe love for life and the love for other human beings as well as othercreatures. One of the most well known Hindu teachings is Ahimsa, whichbasically prohibits the killing of other human beings and of plants andanimals.

This was the teaching that later on was developed by the pacifistmovement in the efforts to win independence led by Gandhi. Thismovement also became an inspiration for all pacifist movement all overthe world including the civil rights movement led by Martin LutherKing in the United States of America.

Essentially, Hindu teaching does not allow the use of death penaltyto any creature. The concept of putting forward life and doing gooddeeds in life is the most important thing that should be done by allhuman beings. Hindu believes Karma, which is basically what human dowould get back to him/her in the future.

86 Most was extracted from Focus Group Discussion (FGD) “Relevansi Hukuman Mati danHak Hidup yang Dijamin oleh Konstitusi” [The Relevance of Death Penalty and TheRight to Life That is Guaranteed by the Constitution], Sahid Hotel, Jakarta, 26 – 27November 2008, and Public Discussion, “Agama Bicara tentang Hukuman Mati” [ReligionsSpeak About Death Penalty], a cooperation between Imparsial – JPIM OFM Indonesia,Jakarta Media Center (JMC), 18 November 2008.


106


Similar to Hindu teaching, Buddhism also acknowledges fivefundamental principles that are often called as Buddhist Pancasila, whichone of them prohibit killing any living creature. This is part of theexamples set by Siddhartha Gautama in order to save human beingsand other creature from violence acts by other human beings. In otherwords, Buddhism defends the life of not only human but also all livingcreature in this world.

The principles of Buddha that are pro-life are the ground forBuddhism to reject the practice of death penalty. Buddha taught humanthat although one made a serious mistake, there is always a room forrepent. This is in accordance with the teaching of Buddha that considersthe life of all living beings including human is to achieve the highestenlightenment as what Siddhartha Gautama had achieved. That meanshuman basically has good natures and therefore they need to be givenopportunity, considering that in achieving enlightenment efforts fromhuman themselves are needed.

Past experience, human characters and intelligence as well as theenvironment in which human lives, really influence human. By using allof those, the process towards enlightenment can be achieved by human.However, for that process a space for life is very much needed becausehuman is a combination between good and bad.

Having said that, the teaching of Buddha is not in parallel with thepractice of death penalty, which closes all opportunity for human torepent in order to achieve the enlightenment of life. Besides that, deathpenalty also is not in parallel with the concept that each human being canreform him/herself, but instead it puts forward a vengeance that willcreate problems in human life.

107

Chapter 8

Death Penalty under ElectoralPolitics

Death penalty is an optional issue that has a particular attraction forthe public during elections. The issue of death penalty has always beenan accessory to various campaign Statements made by presidential/vicepresidential candidates in Indonesia, particularly in the 2004 and 2009elections.

During the 2004 presidential election, there were at least 8 out of 10contestants of the election, both the presidential and the vice presidentialcandidates, made Statements regarding to the imposition of death penaltyupon, inter alia, corruptors, drugs dealers, crimes of terrorism, and grosshuman rights violations. It was a shame how the majority of thecontestants of the 2004 election used the imposition of death penaltyissue as their campaign issue without considering the human rightsprinciples enshrined in the constitution.

The presidential and vice presidential candidates of the 2004 electionwho made Statements regarding the imposition of death penalty were,first, Wiranto, who was a presidential candidate from the Golkar partyin the 2004 election, Stated that had he elected as a president he wouldhave imposed death penalty upon corruptors who have inflicted severefinancial loss to the State. Moreover, he also stated that perpetrators ofgross human rights violations could be severely punished and if necessary

108


sentenced to death. Second, the Statement was reaffirmed by the vicepresidential candidate for Wiranto, namely Solahudin Wahid who saidthat death penalty should be imposed upon gross human rights violationsas a shock therapy. Solahudin argued that the imposition of death penaltyagainst perpetrators of human rights violations could break the chainsof human rights violation practices in Indonesia hence democracy wouldrun well.

Third, Megawati had also promised to impose death penalty againstnarcotics and other illegal drugs dealers on the ground that narcoticshave poisoned many of Indonesian young generations who weresupposed to be the hope of the nation’s future. This presidentialcandidate from the Indonesian Democratic Party - Struggle (PDIP)even stated that during her presidency she had rejected all clemencypetitions from narcotics dealers. Fourth, the vice presidential candidatefor Megawati, namely K.H. Hasyim Muzadi also supported deathpenalty to be imposed against corruptors just like it has been imposedin China. The Statement was addressed by Hasyim even before he hadbeen appointed as a vice presidential candidate for MegawatiSoekarnoputri.

Fifth, unlike the other candidates, Amien Rais emphasized theimposition of death penalty against terrorists who have been consideredas disturbing the peace of inter-religious life in Indonesia. Accordingto this presidential candidate from the National Mandate Party (PAN),the legal process applied for terrorism has to be distinguished fromthe legal process applied for other criminal offences. The appealmechanisms, both to the higher court and Supreme Court, shall beabolished for the crime of terrorism that has been proved in a districtcourt (first-level court). Sixth, in order not to be left behind, the vicepresidential candidate for Amien Rais, Siwono Yudhohusodo alsodeclared his willingness to impose death penalty against corruptors.

109

The Statement was addressed during a gathering with the IndonesianAssociation of Moslem Intellectuals (ICMI).

Seventh, the presidential candidate from the United DevelopmentParty (PPP), Hamzah Haz also confirmed the imposition of deathpenalty against corruptors. His consideration is that corruption isperceived as an endemic problem that has been damagingdevelopment and hampering economic growth. The imposition ofdeath penalty against corruptors is expected to suppress the numberof corrupt behavior in Indonesia. The Statement was addressed byHamzah in the 2004 Indonesian presidential debate commissionedby the National Election Commission (KPU) at the Borobudur Hotel,Jakarta.

Lastly, still in the 2004 Indonesian presidential debate, SusiloBambang Yudhoyono also affirmed the imposition of death penalty.This presidential candidate from the Democrat party (PartaiDemokrat) stated that corruptors, narcotics dealers and perpetratorsof gross human rights violations should be heavily punished and, ifnecessary, sentenced to death. This affirmation by Susilo BambangYudhoyono to impose death penalty upon his success in winning the2004 election was finally proven by the number of executions againstdeath convicts during Susilo Bambang Yudhoyono-Jusuf Kalla (SBY-JK) administration (16 executions). This has been the largest numbersince the reform era, compared to Habibie, Abdurahman Wahidand Megawati Soekarnoputri administrations. The following tableconsists of Statements made by presidential/vice presidentialcandidates on the imposition of death penalty during the 2004election.

CHAPTER 8DEATH PENALTY UNDER ELECTORAL POLITICS

110


No Name Statement Additional Information

1 Wiranto

(Presidential candidate from Golkar Party)

Promised to impose death penalty against big corruptors in order to create deterrent effects to other corruptors. He furthermore said that he has no objection if death penalty is also imposed against perpetrators of human rights violations

The statement (promise) was delivered by Wiranto in the National Consultative Meeting (Mukernas) of the Indonesian Youth National Committee (KNPI). A similar statement was also addressed by Wiranto in the presidential/vice presidential debate commissioned by the National Election Commission at the Borobudur Hotel.

2 Sholahuddin Wahid

(Vice presidential candidate for Wiranto)

I basically agree that death penalty should be imposed against perpetrators of human rights violations as a shock therapy.

The statement was addressed during the Presidential/Vice presidential debate commissioned by the National Election Commission at the Borobudur Hotel

3 Megawati

(Presidential candidate from PDIP)

As a president, I had imposed a very harsh law. I refused to give clemency towards those death convicts, because they obviously had distributed illegal drugs and poisoned our young generations.

The statement was delivered in her speech during the opening of a Youth Camp of Indonesian Pentecostal Church (GPdI), Munthe, South Minahasa.

4 Hasyim Muzadi

(Vice presidential candidate for Megawati)

Asked Megawati to impose death penalty by shooting against corruptors as it has been conducted in China.

The statement was addressed by Hasyim Muzadi (together with Syafi’i Ma’arif) when he was still holding the position of a Chairperson of PBNU, or before he was officially appointed as Megawati’s vice presidential candidate.

5 Amin Rais

(Presidential candidate from PAN)

Everyone who is proven to have committed a crime of terrorism, according to Amin, has to be heavily punished. Moreover, Amin perceived that-if possible- the criminal procedure for crime of terrorism should be distinguished from other procedures. For instance, there should not be appeal mechanism both to the higher court and to the Supreme court. The punishment should also heavier and if necessary should be sentenced to death.

The statement was addressed by Amin Rais in a Talk show namely ‘Kupas Tuntas’ at Sasana Budaya Ganesha (Sabuga), ITB, Bandung, before he has officially become a presidential candidate.

6 Siswono Yudhohusodo

(Vice presidential candidate for Amin Rais)

Punishment against corruptors has to be heavy. And in Indonesia there is a chance to impose death penalty if it is necessary. We will see about that later.

The statement was delivered by Siswono after a gathering organized by the Indonesian Association of Moslem Intellectuals (ICMI).

7 Hamzah Haz

(Vice presidential candidate from PPP)

If the laws allow it, he agreed to impose death penalty against drugs dealers, corruptors, and perpetrators of human rights violations.

The statement was addressed by Hamzah Haz during the Presidential/vice presidential debate commissioned by the KPU at the Borobudur Hotel.

Table 9.Statements by Presidential/Vice Presidential Candidates on Death

Penalty during the 2004 Election

111

8 Susilo Bambang Yudhoyono

(Presidential candidate from the Democrat party)

Death penalty against drugs dealers, corruptors and perpetrators of human rights violations is justice that has to be enforced. Death penalty against drugs dealers, corruptors and perpetrators of human rights violations can be imposed for the sake of justice and in order to create deterrent effects to all perpetrators.

The statement was delivered by Susilo Bambang Yudhoyono during the Presidential/Vice presidential debate commissioned by KPU at the Borobudur Hotel.

The Attitude of Presidential-Vice PresidentialCandidates in the 2009 Election

In the 2009 election, the candidates who fought for the presidencyconsisted of 3 pairs of candidates. This number is a little smallercompared to the previous 2004 election, which was consisted of 5 pairsof candidates. In the 2009 election, some of the candidates had alsobeen competed in the 2004 election, such as Susilo Bambang Yudhoyono,Megawati Soekarnoputri and Jusuf Kalla, who had been paired withSusilo Bambang Yudhoyono as his vice presidential candidate, is nowcompeted as a presidential candidate paired with Wiranto. Out of the 3pairs, only 2 candidates who stated as well as reaffirmed the impositionof death penalty in Indonesia, each came from different political parties.

Candidates who declared their support to the imposition of deathpenalty in Indonesia are, firstly, Susilo Bambang Yudhoyono, who in the2009 election was still serving as the President of the Republic ofIndonesia, gave his support to the imposition of death penalty againstcorruptors. SBY expressed his support during the Democrat partycampaign for the legislative election, where the eradication of corruptionbecame the main issue of both Democrat Party and the SBYadministration in the future.

Secondly, Wiranto, who was the Chairperson of Hati Nurani Rakyatparty (People’s Conscience Party) and a vice presidential candidate forJusuf Kalla, also said that he would impose death penalty against

CHAPTER 8DEATH PENALTY UNDER ELECTORAL POLITICS

112


corruptors because they have ruined the morality of the people.

Table 10.Statements by Presidential/Vice Presidential Candidates on Death

Penalty during the 2009 Election

The use of death penalty issue in election campaigns was obviouslynot in accordance to the principles and values of human rights asenshrined in the constitution, which clearly reaffirms the recognition tothe right to life as a non-derogable right. It also did not give a goodpolitical education for the people. Conducting campaign by using theimposition of death penalty issue for some types of crimes only aimedat gaining public trust and to increase votes for political parties or electioncontestants, where as if there was a serious willingness from electioncandidates to solve big crimes in this republic. Death penalty has been apolitical commodity in the effort to win elections in Indonesia.

No Name Statement Additional Information Source

1 Susilo Bambang Yudhoyono

(Presidential candidate: Boediono)

SBY: “Corruptors are possible to be sentenced to death”

The statement (promise) was addressed prior to the official 2009 presidential election campaign period.

http://www.wikimu.com/News/News-Tag.aspx?t=hukuman+mati

2 Wiranto

(Vice Presidential candidate: Jusuf Kalla)

Wiranto: Any types of corruption are prohibited. In order to eradicate it, we already have specific strategies. For instance, in the public servant area, they will be provided with adequate salary that would be sufficient for their families’ future. If they still commit corruption, they will be speedily and harshly proceeded, and if necessary, sentenced to death.

The statement (promise) was delivered by Wiranto in a dialogue campaign at the Ratu Convention Resort, Sunday, June 14 2009 in Jambi.

http://www.mediaindonesia.com/webtorial/electiononline/?ar_id=NTE5NA==

113

Chapter 9

Conclusion

It is obvious that normative perspective is not a suitable approachfor death penalty. The reality about the imposition of death penaltyunder the Indonesian legal history has proven that its existence has beena regime’s political instrument that was absent from democracy. Thegrowing process of various legislations that impose death penalty hasfinally brought us closer to understand the characteristic of the regimebehind the legal products rather than the issue of death penalty itself.While death penalty as an instrument that, for some people, is perceivedas capable of suppressing the number of crimes, has apparently resultedotherwise. Death penalty has never been proven to be able to restore ablighted condition as a result of a particular crime.

Maintaining the imposition of death penalty by only using a positivelegal approach is clearly not accountable. All historical frames of theimposition of death penalty under national legal provisions since theDutch colonial period to the current legal products such as the Law onAnti-Terrorism, Law on Human Rights Court, Anti-Corruption Law,and Anti-Narcotics Law, have only shown the characteristic of Statepower rather than legal aspects in a framework to overcome varioustypes of crimes. Death penalty appears as political efforts either in aframe of threatening political powers in the society or in gaining politicalsupports.

114


Historical facts of the imposition of death penalty have also shownhow targets of the imposition of death penalty have been a part ofpolitical resources of the ruling regime. Those who are sentenced todeath do not automatically face the firing squad. Instead, they still haveto fight for a political decision of clemency, which depends on the“kindness” of the President. The debates on the implementation of theexecution appear to public during political momentums rather than thenormative provisions that regulate it. Therefore it was not astoundingthat death convicts have to wait for years for their executions, since theybelong and have become the property of the ruling political entity, theirlife can be taken away whenever it is necessary. Execution, as a politicaldecision, would be appreciated by people who are hungry for vengeance,and it is regarded as a compensation for the incompetence of theauthorities in dealing with crimes.

Death penalty only fills one side of the need that the State exists inevery room of vengeance over crimes. The State —through judges’gavels— tries to exist in the middle of public anger over crimes and theneed of the ruling political entity to preserve its legitimacy.

The life and the essence of the death convicts as human beings haveturned into numbers and a flag in a symbolic ceremony of the rulingpower. Death sentence has led to a revocation of the death convicts’identity as human beings; they were turned into experimental materialsin the efforts to fight crimes or a window dressing of the ruling power.The tendency of life and the essence of the right to life fall under theframe of State property, and on behalf the law, the State could revokeit whenever it is necessary. At this point, the State has acted as the ownerof the right to life itself.

Various arguments show the effectiveness of the imposition of deathpenalty under the frame of ethics and morality. The appetite for

115

vengeance or exterminating the life of criminal offenders has existedlong before the trial process against the death accused. Supporters ofthe imposition of death penalty against the accused of criminal offencesbelieve that death penalty will restore the balance that have beenobstructed by crimes. The desire to restore the balance is nothing but anappetite for an optimum vengeance through a legitimate judiciary system.

For the State’s political practitioners, the desire for vengeance in thesociety is a political sentiment reality. Political practitioners, in their effortsto gain political supports, have facilitated the discovery of the connectionbetween death penalty and power consolidation. In this context, thevaluation of the right to life of the death convicts is not an importantthing, or the effectiveness of death penalty itself will protect the societyfrom various of crimes.

It is difficult to find an accurate connection that could illustrate thelink between the imposition of death penalty and crimes, let alone theevidence of deterrent effect towards criminal offenders. In this context,death penalty cannot be regarded as an important functional instrumentfor the preservation of social harmony. In historical facts we can clearlyfind that the centralization and harmonization of powers are the onlyliving space for death penalty.

Political practitioners, public anger over crimes, death penalty andthe right to life need to be reorganized. Law is a political product,however, the political attitude and mechanism have to be restricted inorder to prevent excessive power that could deprive the right to life.Protecting the society from crimes does not depend on how manycriminal offenders are sentenced to death. The right to life cannot bejeopardized just because the authorities want to do so, or because of thesociety supports the retaliation against criminal offenders. Social legitimacyto deprive the right to life has also become a tool to preserve power

CHAPTER 9CONCLUSION

116


and even become a threat to society’s safety.

National legal reform is obviously the entrance to the abolition ofdeath penalty. If the Constitution provides recognition to the right tolife as a non-derogable right on any ground, therefore the abolition ofthe imposition of death penalty is a constitutional obligation.

In light of the above descriptions, we could draw a conclusion thatdeath penalty is no longer relevant in Indonesia, considering to thefollowing grounds:

Firstly, Article 28(I) of the Second Amendment to the 1945Constitution provides recognition to the right to life as a non-derogable right and it has been reaffirmed through the ratificationof the International Covenant on Civil and Political Rights into theLaw No. 12 of 2005 that prohibits the imposition of death penalty.The two instruments have given Indonesia two obligations regardingto the right to life; (1) a national obligation, i.e., to respect the right tolife as a constitutional right, which also means to respect, to protectand to fulfill the right to life of all Indonesian citizen; (2) an internationalobligation to respect, to protect and to fulfill the right to life as theright of all human beings under Indonesian territory and/orjurisdiction.

Secondly, all religions in the world have similar basis when it comesto the right to life and teach their followers to love life and to protectthe right to life. Putting an end to a human life on any ground isstrictly resisted since it is regarded as a prerogative right and beyondGod’s will.

Thirdly, death penalty shuts down logics and the possibility ofnew evidence that might be discovered in the future if the convict isapparently not and/or does not conduct a criminal offence and it

117

closes down the right defense of the convict. Thus, it is very possiblethat death penalty is imposed against the wrong person (wrongfulconviction), not to mention the high number of wrongful arrests,wrongful detentions, and wrongful application of the law as a resultof a corrupt judicial system and unprofessional legal enforcementapparatus.

Fourthly, studies on the connection between deterrent effect andthe imposition of death penalty and the escalation of crimes all overthe world on grave crimes could not prove the accuracy. Theimposition of death penalty under the Indonesian positive law,particularly upon narcotics related crimes, have not necessarilyeradicated the circulation and the production of narcotics, in fact itwas increasing.

Fifthly, democratic countries all over the world have abolishedand/or imposed a moratorium upon death penalty. This was due toa consistent guarantee on human rights as well as a manifestation ofrespect on the right to life as a non-derogable right in any circumstances.

Recommendation

Firstly, it is about time for Indonesia, as a part of civilized nations inthe world, to abolish death penalty from its applicable legal system. Theabolition will be significant for the protection of human rights, whichcannot be violated, not even on behalf the law and state power, sincelaw and power are aimed at protecting and promoting human rights.Therefore, political authority ought to abolish all legal provisions ondeath penalty. Considering that all of the provisions violate theConstitution that recognizes and guarantees the right to life as a non-derogable right that cannot be deprived in any circumstances. Theremust not be any lower regulations and no authorities could deprive the

CHAPTER 9CONCLUSION

118


right to life as a constitutional right. The right to life as a non-derogableright cannot be deprived or limited in any circumstances because anydeprivation or limitation on the particular right would inherently meansan annihilation of the right itself. When the right to life is annihilated thenthe whole set of human rights would be meaningless.

Secondly, impose moratorium on execution of death penalty by puttingforward the Constitution and Indonesia’s international obligation as astate party to the International Covenant on Civil and Political Rights.

Thirdly, cease of executions against death convicts and convert theirpunishment into imprisonment, particularly for those who have enduredexecution delay for more than five years. Moreover, they have alsobecome victims of violation of the law because they were not sentencedto jail but they have to stay in jail while waiting for the execution to takeplace.

Fourthly, the President as the head of the State, as it is guaranteed bythe Constitution, has the authority to provide amnesty, abolition andclemency. In the context of moratorium on death penalty, the Presidentcould provide clemency for every petition submitted by a death convictas a reflection of respect for the Constitution and human rights. ThePresident could also provide clemency in general for all death convicts.

119

Annex 1

No Name/Sex/ Nationality

Case Year of

Crime

Court of Conviction

Year of Conviction

Year of Execution

Additional Information

1 Azhar bin Muhammad Asfar/M/Indonesian

Garduda Hijacking “Woyla”

1981 South Jakarta District Court

1982 8 February 1991

- He had tried to change the punishment by appealing to a higher court, the Supreme Court and a judicial review, and even asking for clemency, but he was rejected.

- He was executed, approximately around Tangkuban Perahu area, Bandung.

2 Mursyid alias Ahmad alias Istam/M/Indonesian

- - - - 1985 -

3 Chan Tien Chong alias Steven Chan/M/Malaysian

Narcotics June 1985

West Jakarta District Court

January 1986

13 January 1995

- His death sentence was reaffirmed by the court of appeal of Jakarta.

- His appeal to the Supreme Court was rejected on 29 September 1988.

- His appeal for a judicial review was also rejected by the Supreme Court on 17 October 1990.

- His clemency petition was also rejected by the President on 25 February 1991.

4 Kacong Laranu/M/Indonesian

The murder of four members of Sirajudin Jusuf

December 1985

Palu District Court

October 1986

31 January 1995

- He was a relative of the victims

- A retiree of the National Armed Force and his last rank was Chief Sergeant.

- His clemency petition was rejected by the President in 1990 as well as his application for a cassation was declined by the

1 In the order of the time of sentencing (date/month/year). Additional informationon the convicts who had been executed can also be seen on this annex.

Death Convicts during New Order Era (1982-1997)1

120


Supreme Court - He was executed by a

group of firing squad from the Mobile Brigade of the Central Sulawesi Regional Police at 02.20 Central Indonesian Time and his death was confirmed five minutes after.

- He refused to be blindfolded during his execution; The corpse was buried at an Islamic Funeral of Talise.

5 Bedjo a.k.a. Sidik/M/Indonesian

- - - - 1987 -

6 Kamjai Kong Thavorn/M/30/Thai

Narcotics 20 August 1987

District Court of Samarinda, East Kalimantan

30 January 1988

- - The conviction was reaffirmed by the Court of Appeal of East Kalimantan on 7 March 1988.

- His appeal to the Supreme Court was also declined on 29 September 1988.

- His clemency petition was rejected by the President on 25 February 1991.

- His appeal for a judicial review was also declined by the Supreme Court in December 1992.

- His second clemency petition was finally accepted by President Soeharto on 16 January 1998 and he was then sentenced to life imprisonment.

7 Police First Sergeant Adi Saputro/M/Indonesian

Murder of five family members of Lieutenan

13 August 1988

Military Court- III-12. Surabaya

8 November 1988

1 December 1992

- He was a son in law of Adi Prayito-Sumiasih.

- His clemency petition was rejected by the President in November 1992 and

121

t Colonel Poerwanto

accepted by the Military Tribunal III-12 of Surabaya on 9 November 1992.

- Executed at 00.15 (Western Indonesian Time) by a firing squad from the Brawijaya Regional Military Command (Kodam V). His corpse was buried at 3.09 (Western Indonesian Time) in Krembangan Village, Taman District, Sidoarjo, East Java.

8 Djais Adi Prayitno/M/Indonesian

Premeditated murder of five family members of Lieutenant Colonel Poerwanto

13 August 1988

District Court of Surabaya

19 January 1989

- - His clemency petition was rejected by President Soeharto through a Presidential Decree No. 22/1995 dated on 28 June 1995.

- His appeal for a judicial review was also declined by the Supreme Court in March 1996.

- He died before the execution took place on 21 June 2001 at the General Hospital of Sidoarjo, East Java.

9 Sumiasih/F/Indonesian


13 August 1988


19 January 1989

19 July 2008

- Her clemency petition was rejected by President Soeharto through a Presidential Decree No. 22/1995 on 28 June 1995.

- Her appeal for a judicial review was rejected by the Supreme Court in March 1996.

- Her second petition was also rejected by President Megawati in February 2003.

- The rejection was issued

ANNEX 1

122


through a Presidential Decree No. 4G/2008 on 26 May 2008.

- She was executed at 00.20 (Western Indonesian Time) together with her son, Sugeng, by a firing squad from a mobile brigade of the Regional Police of East Java.

- She was buried at Sam’an public cemetery in Malang, next to her son, Sugeng.

10 Sugeng/M/Indonesian


13 August 1988


19 January 1989

19 July 2008

- His clemency petition was rejected by President Soeharto through a Presidential Decree No 22/1995 on 28 June 1995.

- His appeal for a judicial review was also declined by the Supreme Court.

- His second clemency petition was also rejected by President Megawati in February 2003.

- He was executed at 02.20 (Western Indonesian Time), together with his mother, Sumiasih, by a firing squad (12 personnel) from a mobile brigade of the Regional Police of East Java, at a firing range owned of the Regional Police of East Java, Surabaya.

- He was buried at Sam’an public cemetery in Malang, next to his mother, Sumiasih.

11 Gerson Pandie/M/34/Indonesian

Murder of four family

2 February

District Court of Kupang

12 December 1989

20 May 2001

- Had waited for 12 years in prison for his execution.

- Executed by a special

123

members of Pingak

1994 firing squad at Oekabiti, 40 kilometers from Kupang, East Nusa Tenggara.

12 Fredrik Soru/M/34/Indonesian

Murder of four family members of Pingak

2 February 1994


12 December 1989

20 May 2001

- He had waited for 12 years in prison for his execution.

- His clemency petition was rejected by the President through a Presidential Decree No. 27 of 1994.

- Executed by a special firing squad at Oekabiti, 40 kilometers from Kupang, East Nusa Tenggara.

13 Dance Soru/M/Indonesian

Murder of four family members of Pingak

2 February 1994


12 December 1989

- - His clemency petition was rejected by the President through a Presidential Decree No. 27 of 1994.

- Died from electrical shock at a level II correctional institution of Kupang in December 2000.

14 Stefanus Karta Cahyadi a.k.a. Yongky/33/M/Indonesian

Robbery and murder of three family members of Utomo Kasidi.

5 February 1990

District Court of Surakarta

20 September 1990

26 April 1995

- The Appeal Court of Central Java reaffirmed the decision of the District Court of Surakarta on 6 December 1990.

- The Supreme Court also reaffirmed the death sentence on 27 April 1991.

- His clemency petition had been rejected on 29 December 1994 through a Presidential Decree No.61/G/1994 and was accepted by the District Prosecutor’s Office of Solo on 13 February 1995.

- He committed 2 attempts of suicide during his imprisonment at Mlaten correctional institution of Semarang: the attempts

ANNEX 1

124


were conducted in July 1992 and January 1993 by slitting his left wrist with a razor blade.

- On 12 April 1992 he had made to escape from Mlaten correctional institution of Semarang. However, he surrendered himself to the National Police Head Quarter on 8 May 1992 and was sent to Cipinang correctional institution.

- His clemency petition was rejected by the President on 29 December 1994 through a Presidential Decree No. 61/G/1994.

- He was executed at 02.40 by a firing squad (consists of 14 personnel) from a Mobile Brigade of the Regional Police of Metro Jaya in an open field surrounded with bushes in Kalisari area, Cimanggis, East Jakarta with no blindfold covering his eyes.

- His cornea was donated subsequent to his execution.

- His corpse was buried at Pondok Rangon public cemetery in East Jakarta.

15 Tugiman bin Sikin/40/M/Indonesian

Robbery and murder of three family members of Utomo

5 February 1990

Appeal Court of Central Java

20 September 1990

- - At the first level court, he had been sentenced to life term.

- At the appeal level, the Appeal Court converted his sentence to a death sentence.

125

Kasidi. - At the cassation level, the Supreme Court also decided to stick with the death sentence.

- His clemency petition was rejected by the President through a Presidential Decree No.23/G of 1995 dated on 28 June 1995.

- He then resubmitted another petition in May 1997.

- On 4 March 2001 he was found dead in an isolation room at Kedungpane correctional institution of Semarang. It was suspected that he committed suicide by taking pesticide.

16 Suryadi bin Sukarno/M/27/Indonesian

Premeditated murder of Soeripto’s family

9 April 1991

District Court of Palembang

16 January 1992

- - His clemency petition was rejected by President Megawati.

17 Koh Kim Chea/M/24/Malaysian

Bank robbery and murder of a security guard.

5 July 1991

District Court of Batam

7 March 1992

- - The Riau Court of Appeal reconfirmed the death sentence granted by Batam District Court on 8 July 1992.

18 Robert alias Surya Dharma/M/32/Indonesian

Subversive acts (murder of National Armed Force members, civilians, and gun confiscation)

1989-1990

District Court of Lhokseumawe

April 1993 - - He was tried in absentia since he still remained a fugitive.

- He was fired from the National Armed Force by the Banda Aceh Military Tribunal on 30 June 1989, his last rank was Private First Class.

ANNEX 1

126


19 Ayodya Prasad Chaubey/M/54/Indian

Narcotics 21 February 1994

District Court of Medan

8 September 1994

05 August 2004

- His appeal was rejected by North Sumatra Appeal Court on 14 December 2004.

- His cassation application was also rejected by the Supreme Court that confirmed the Medan District Court decision on 28 June 1995.

- He submitted an appeal for a judicial review on 5 October 1995, but it was rejected by the Supreme Court on 23 October 1997.

- He submitted a clemency petition in April 1998, but it was rejected by the President on 9 July 2004.

- He was executed in a golf area in Medan Polonia District, Medan at around 02.30.

20 Saelow Prasert/M/54/Thai



8 September 1994

1 October 2004

- His cassation was rejected by the Supreme Court, which reconfirmed the decision granted by the Medan District Court on 28 June 1995.

- On 5 October 1995, he appealed for a judicial review but it was rejected by the Supreme Court through its decision number 71PK/Pid/1998.

- In April 1998, he submitted a clemency petition and was rejected by President Megawati on 9 July 2004 through a Presidential Decree No. 7/G of 2004.

- Before he was executed,

127

he had been isolated since 26 September 2004 at Tanjung Gusta correctional institution, Medan.

21 Namsong Sirilak/F/22/Thai



8 September 1994

1 October 2004

- Her appeal was rejected by the North Sumatra Court of Appeal on 14 December 2004.

- Her cassation was rejected by the Supreme Court, which reconfirmed the decision of Medan District Court on 28 June 1995.

- On 5 October 1995, she appealed for a judicial review but it was rejected by the Supreme Court on 23 October 1997.

- Her second appeal for a judicial review was also rejected by the Supreme Court through a decision number 71PK/Pid/1998.

- She submitted a clemency application in April 1998, but it was rejected by President Megawati on 9 July 2004 through a Presidential Decree No. 7/G of 2004

- Before she was executed, he had been isolated since 26 September 2004 at Tanjung Gusta correctional institution, Medan.

22 Sakak bin Jamak/M/Indonesian

Premeditated Murder

1995 District Court of Pekanbaru, Riau

1995 - - His clemency petition was rejected by President Megawati in 2000

23 Sahlan bin Jamak/M/Indonesian

Premeditated Murder



ANNEX 1

128


24 Sabran/M/Indonesian

Premeditated Murder



25 Tham Tuck Yin a.k.a A Tjai/L/29/Malaysia

Narcotics January and May 1994

District Court of Jakarta Pusat

18 January 1995

- - When the verdict was determined, he was not accompanied both by a legal counsel and an interpreter.

26 Astini alias Lakri/F/Indonesian

Murder and mutilation of three women

August 1992, November 1993, and February 1996


17 October 1996

20 March 2005

- On January 8 1997, the East Java Court of Appeal reconfirmed the decision of Surabaya District Court.

- She appealed for cassation but the Supreme Court, through its decision number 402K/Pid/1997 dated on 13 June 1997, rejected it.

- She appealed for a judicial review on 7 October 1997 and was rejected by the Supreme Court on 20 February 1998.

- Her clemency petition was declined by the President through a Presidential Decree No.9/G of 2004 on 9 July 2004.

- On 6 October 2004 she received a notification letter from Surabaya District Court that her execution would be conducted in 30 daytime as of the receipt of the letter.

- She was executed by a firing squad from the Mobile Brigade of East Java Regional Police. Six bullets lodged in her heart.

129

27 Sugianto a.k.a Sugik/M/19/Indonesian

Murder of Soekardjo’s family

15 February 1996


12 December 1996

- - The Supreme Court reconfirmed the conviction on 16 November 1999.

28 Second Liutenant (inf) Sanurip/M/37/Indonesian

Shooting against 10 officers of the National Armed Forces and 16 civilians at a Freeport’s aircraft hangar in Timika

15 April 1996

Jayapura Military High Court III-19

22 April 1997 (Number PUT/05/MM.III-19/K/AD/IV/1997)

- - A lower-ranked officer from the Battalion 12 Group I of the Army’s Special Forces.

- Supplementary decision of the Jayapura Military High Court III-19: discharged from the National Armed Forces and revocation of all service medals granted both by the Armed Forces and the State.

- The death sentence was reconfirmed by the Surabaya Military High Court III through a decision number PTS/405/BDG/MMT.III/K/AD/VI/1997 dated on 18 June 1997.

29 Harnoko Dewantono alias Oki/M/33/Indonesian

Murder of three people in Los Angeles

1991-1992

District Court of Central Jakarta

13 May 1997

- - Jakarta Court of Appeal reconfirmed the decision of Central Jakarta District Court on October 8 1997.

30 Siswanto alias Robot Gedhek/M/33/Indonesian

Sexual deviant (sodomy) and murder of 10 street children

1995-1996


20 May 1997

- - Arrested on 27 June 1996 and imprisoned at Permisan correctional institution in 1999. He was then transferred to Pasir Putih correctional institution, Nusakambangan, and Batu correctional institution.

- Jakarta court of appeal rejected his appeal application on 14 August 2007 and subsequent to

ANNEX 1

130


that, he declared to appeal to the Supreme Court.

- He died at Cilacap Regional General Hospital on 26 March 2007 from heart disease and he was buried in Pekalongan, Central Java.

31 Aris Setiawan/M/30/Indonesian

Premeditated murder of three women

7 April 1997


19 August 1997

- -

32 Turmudi bin Kasturi/M/40/Indonesian

Murder of five members of a family

1997 District Court of Kualatungkal, Jambi

21 October 1997

13 May 2005

- His first death sentence was granted in Jambi.

- The Supreme Court had rejected his cassation in December 1997 and then refused his appeal for a judicial review in December 2001.

- The President rejected his clemency petition on 29 August 1998.

- Executed by a firing squad from the Mobile Brigade (consisted of 14 personnel) of the Jambi Regional Police at 23.30 somewhere in Pematang Lumut area in Jambi Province.

- His corpse was buried in his hometown in Sungai Lalang Bayung Lincir, Musi Banyu Asin, South Sumatera.

33 Luis Maria da Silva/M/57/Indonesian

Murder of 17 members of the 1997 election

May 1997

District Court of Baucau, East Timor

11 December 1997

- -

131

observation team.

34 Fransisco da Costa/M/36/Indonesian

Murder of 17 members of the 1997 election observation team.

May 1997

District Court of Baucau, East Timor

11 December 1997

- -

ANNEX 1

132


ADDITIONAL INFORMATION:

A. Type of Case:

No Case Death Sentence Execution

1. Murder 25 cases 3 cases

2. Narcotics/psychotropic 6 cases 1 cases

3. Aircraft Hijacking 1 cases 1 cases

5. Unknown 2 cases 2 cases

Total 34 cases 7 cases

B. Sex


1. Male 31 people 7 people

2. Female 3 people -

Total 34 people 7 people

C. Death Sentences and Executions on a Yearly Sequence

No Year Death Sentence Execution

1. 1982 1 person -

2. 1985 - 2 people

3. 1986 2 people -

4. 1987 - 1 person

5. 1988 2 people -

6. 1989 6 people -

7. 1990 2 people -

8. 1991 - 1 person

9. 1992 2 people -

10. 1993 1 person -

11. 1994 3 people -

12. 1995 4 people 3 people

13. 1996 2 people -

14. 1997 7 people -

15. Unknown 2 people -


133

D. Foreign Citizens

No Nationality Death Sentence Execution

1. Malaysian 3 people 1 person

2. Thai 3 people 2 people

3. Indian 1 person 1 person


E. Jurisdiction of Courts that Granted Death Sentence

No Jurisdiction of Courts Number of Conviction

1. District Court 29 convictions

2. Court of Appeal 1 conviction

4. Military Court 2 convictions

5. Unknown 2 convictions

Total 34 convictions

ANNEX 1

134


F. Jurisdiction Area of Courts that Granted Death Sentence

No Area Court Province Number of Conviction

1. Sumatra District Court of Lhokseumawe

Special Region of Aceh

1 conviction 10 convictions

District Court of Medan North Sumatera 3 convictions

District Court of Pekanbaru

Riau 3 convictions

District Court of Batam Riau 1 conviction

District Court of Kuala Tungkal

Jambi 1 conviction

District Court of Palembang

South Sumatera 1 conviction

2. Java, East Nusa

District court of Central Jakarta

Special Capital City Region of Jakarta

3 convictions 18 Convictions

Tenggara and

District court of West Jakarta


1 conviction

East Timor Central Java Court of Appeal

Central Java 1 conviction

District Court of Surakarta

East Java 1 conviction


East Java 6 convictions

Military High Court of Surabaya


District Court of Kupang East Nusa Tenggara

3 convictions

District Court of Baucau East Timor 2 convictions

3. Sulawesi District Court of Palu Central Sulawesi 1 conviction 1 conviction

4. Kalimantan District Court of Samarinda

East Kalimantan 1 conviction 1 conviction

5. Papua Military High Court of Jayapura

Irianjaya 1 conviction 1 conviction

135

6. Unknown 2 convictions

Total 14 District Courts 13 Provinces 34 Convictions

1 Court of Appeal

2 Military High Courts

4 Unknown

ANNEX 1

136


137

Annex 2

Death Convicts during Reform Era (1998-2009)1

No Name/Sex/ Age/

Nationality

Case Year of

Crime

Court of Conviction

Year of Conviction

Year of Execution

Additional Information

1 Ahmad Suradji a.k.a. Nasib Kelewang a.k.a Datuk/M/45/Indonesian

Murder of 42 women

1986-1997

District Court of Lubuk Pakam, Medan, North Sumatera

27 April 1998

10 July 2008

- His appeal was rejected by the North Sumatra Court of Appeal on 27 June 1998.

- The Supreme Court also rejected his appeal for cassation on 22 September 2000.

- His appeal for a judicial review was rejected by the Supreme Court through its decision Number: 34/PK/Pid/2002 dated on 28 May 2003

- His clemency petition on 5 October 2004 was rejected by the President through a Presidential Decree No. 7/E/2002 dated on 22 November 2007.

- He was supposed to be executed on February 2008 but was canceled due to a resubmission of his clemency petition.

2 Tumini/F/40/Indonesian

Assisted Ahmad Suradji in the murder of 42 women

1995-1997

District Court of Lubuk Pakam, Medan, North Sumatera

29 April 1998

- - She was the first wife of Ahmad Suradji.

- The North Sumatra Court of Appeal converted her death sentence into a lifetime sentence on 27 June 1998.

- Her second clemency has not been responded by the President.

3 Jurit bin Premed May, District April 1998 - - Committed two murders in a

1 In the order of the time of sentencing (date/month/year). Additional information onthe convicts who had been executed can also be seen on this annex.

138


Abdullah/M/40/ Indonesian

itated murder

August and November 1997

Court of Sekayu, Musi Banyuasin, South Sumatera

same location, namely Musi Banyuasin, but the case was tried in two different places: in February 1997, the District Court of Palembang convicted a lifetime sentence on the murder of Arphan bin Cik Din; two months after that he was convicted with death sentence by District Court of Sekayu on the murder of Soleh bin Zaidan.

- His cassation had been rejected by the Supreme Court on 29 April 2004 through its decision Number 22PK/PID/2004 and was accepted by the Sekayu District Court in October 2004.

- His clemency petition was rejected by three presidents, namely, Abdurrahman Wahid, Megawati through a Presidential Decree No. 24/G in February 2003 and President Yudhoyono in November 2004.

- His second appeal for a judicial review was also rejected by the Supreme Court on 13 December 2004.

- After 7 years of imprisonment at the Pakjo correctional institution, he was finally transferred to the Nusa Kambangan correctional institution.

4 Ibrahim bin Ujang/M/ Indonesian

Premeditated murder

May 1997

District Court of Sekayu,

April 1998 - - His appeal was rejected by the South Sumatera Court of Appeal.

139

Musi Banyuasin, South Sumatera

- He submitted a clemency petition on 20 August 1998 and was rejected by the President on 14 June 2001.

- He appealed for a judicial review to the Supreme Court. A trial was held at the court on 16 April 2002 and the document was accepted by the Supreme Court on 20 June 2002.

- In December 2008 he submitted his second clemency petition to the President based on the Supreme Court decision No. 108/PK/Pid/2007 on 25 September 2007 jo. Decision of the South Sumatra Court of Appeal No 32/Pid/1998/PT. PLG on 17 April 1998 and the Sekayu District Court No 309/Pid. B/1997/PN.SKY on 19 February 1998.

- In February 2009, his clemency petition was rejected by the President.

5 Akok bin Haji Hasan a.k.a Lakok/M/31/Indonesian

Premeditated murder of 3 victims

3 October 1997

District Court of Kuala Tungkal, Jambi

10 June 1998

- - He appealed - Together with four other

inmates, on 29 June 1998, he escaped from Kuala Tungkal correctional institution, Tanjung Jabung, Jambi.

6 Ayub Bulubili a.k.a. Aste/M/ Indonesian

Murder of a family in Lamunti Village, Kapuas

February 1999

District Court of Kapuas, Central Kalimantan

- 28 April 2007

- Since he was convicted, he had been trying to get a commutation of sentence trough appeal and cassation, however those were all rejected.

- His clemency petition was also rejected by President

ANNEX 2

140


Megawati in 2004. - His second clemency

petition was rejected by President Yudhoyono through a Presidential Decree No.1 of 2007 on 6 March 2007.

- Executed at the Bukit Batu firing range, Palangkaraya.

7 Samsudin alias Aidit/M/22/ Indonesia

Serial murder of 9 migrant worker candidates

September 1998-February 1999

District Court of Banyumas

4 January 2000

- -

8 Nar Bahadur Tamang/M/59/ Nepalese

Narcotics

2000 District Court of Tangerang

25 January 2000

- - His death sentence was converted to a lifetime sentence by the West Java Court of Appeal on 29 May 2000.

- The Supreme Court has also reconfirmed his sentence to a lifetime sentence on 23 April 2001.

9 Bala Tamang/M/30/ Nepalese

Narcotics


25 January 2000

- - His death sentence was converted to a lifetime sentence by the West Java Court of Appeal on 29 May 2000


10 Til Bahadur Bahandari/M/25/ Nepalese

Narcotics


17 February 2000

- - His death sentence was converted to a lifetime sentence by the West Java Court of Appeal on 29 May 2000


141

11 Bir Bahadur Burung/M/ 33/ Nepalese

Narcotics


17 February 2000

- - His death sentence was converted to a lifetime sentence by the West Java Court of Appeal on 29 May 2000.


12 Thomas Daniel/L/28/Angolan

Narcotics

22 Januarys 2000

District Court of Tangerang

9 August 2000

- - The West Java District Court, through its decision number 287/Pid/2000/PT, reconfirmed the death sentence on 8 November 2000.

- The Supreme Court was then reduced the sentence to 15 years of imprisonment.

13 Meirika Pranola a.k.a. Ola/L/30/ Indonesian

Narcotics

12 January 2000


22 August 2000


- The Supreme Court rejected his cassation and reconfirmed the death sentence on 18 April 2001.

- In an ongoing process of judicial review

14 Rani Andriani alias Melisa Aprilia/F/ 28/ Indonesian

Narcotics

12 January 2000


22 August 2000


- She had managed to escape from her cell in cellblock A at Tangerang women correctional institution.

- The Supreme Court rejected her cassation and

ANNEX 2

142


reconfirmed the death sentence on 18 April 2001.

- Her application for a judicial review was also rejected.

- She has submitted a clemency petition.

- Regarding to a judicial review on the Law No. 22 of 1997 on Narcotics that she had submitted on 30 October 2007, the Constitutional Court decided that death penalty under that particular law does not violate the 1945 Constitution.

15 Deni Setia Maharwan a.k.a. Rapi Mohamed Majid/M/31/Indonesian

Narcotics

12 January 2000


22 August 2000


- The Supreme Court rejected his cassation and reconfirmed the death sentence on 18 April 2001

- Still in the process of judicial review.

16 Cong Roib/M/39/ Indonesian

Narcotics

19 February 2000

District Court of Probolinggo

19 October 2000

- -

17 Ridho Fadli a.k.a Rizal/M/23/ Indonesian

Narcotics

20 June 2000


29 March 2001

- -

18 Fabianus Tibo/M/56/ Indonesian

Murders in Poso

May 2000

District Court of Palu, Central Sulawesi

2 April 2001 22 September 2006

- Central Sulawesi Court of Appeal reconfirmed the death sentence on 17 May 2001.

- The Supreme Court has also rejected his cassation on 11 October 2001.

143

- He had appealed for a judicial review in 2004 but the Supreme Court rejected it.

- President Yudhoyono rejected his clemency petition on 10 March 2005.

- His second application for another judicial review, which he had submitted in April 2006, case number 27PK/Pid/2006, was rejected by the Supreme Court in May 2006.

- His second clemency petition was also rejected by the President on 15 August 2006.

19 Domingus da Silva/M/43/ Indonesian

Murders in Poso

May 2000

District Court of Palu, Sulawesi Tengah

2 April 2001 22 September 2006

- The Central Sulawesi Court of Appeal confirmed the death sentence on 17 May 2001.

- The Supreme Court has also rejected his cassation on 11 October 2001.

- He appealed for a judicial review but the Supreme Court rejected it.

- President Yudhoyono rejected his clemency petition on 10 March 2005.

- His second application for a judicial review, which he submitted on 3 April 2006, case number 27PK/Pid/2006, was also rejected by the Supreme Court on 9 May 2006.

- His second clemency petition was also rejected by the President on 15 August 2006.

20 Marinus Murder May District 2 April 2001 22 - The death sentence was

ANNEX 2

144


Riwu/M/48/ Indonesian

s in Poso

2000 Court of Palu, Central Tengah

September 2006

reconfirmed by the Central Sulawesi Court of Appeal on 17 May 2001.

- The Supreme Court was also rejected his cassation on 11 October 2001.

- He appealed for a judicial review in 2004 but the Supreme Court rejected it.

- President Yudhoyono rejected his clemency application on 10 March 2005.

- His second application for a judicial review had been submitted in April 2006, case number: 27/PK/Pid/2006, and was rejected by the Supreme Court in May 2006.

- His second clemency application was also rejected by the President on 15 August 2006.

21 Ranto alias Irianto Bin Subinto/M/ Indonesian

Premeditated murder of a little girl

30 December 2000

District Court of Purwokerto

30 April 2001

- -

22 Rio Alex Bullo/M/23/ Indonesian

Murder of Jeje Suradi, and three drivers of rental cars

21 January 2001


14 May 2001

8 August 2008

- President Megawati rejected his clemency petition through a Presidential Decree No. 16/G/2004 dated on 29 July 2004.

- His appeal for a judicial review was rejected by the Supreme Court on 19 December 2005, accepted by the District Prosecutor’s Office of Purwokerto on 1 April 2008.

- On 22 July 2008, the Regional Prosecutor’s Office

145

of Central Java ordered the District Prosecutor’s Office of Purwokerto to execute the death sentence on the first week of August 2008.

- He was executed at 00.00 (Western Indonesian Time) at Karang Tengah Village, Cilongok District, Banyumas, Central Java; and was known to die around 10 minutes after he was shot to death.

23 Samuel Iwuchukwu Okoye/M/ 31/Nigerian

Narcotics

9 January 2001


5 July 2001 27 June 2008

- The decision of the Tangerang District Court was reconfirmed by the West Java Court of Appeal on 25 October 2001.

- His appeal for a judicial review was also rejected by the Supreme Court.

- His clemency petition was also rejected by the President on 15 July 2004.

24 Ozias Sibanda/M/33/Zimbabwean

Narcotics

30 January 2001


10 July 2001 - - Still in an ongoing legal process.

25 Indra Bahadur Tamang/2/M/ Nepalese

Narcotics

20 January 2001


13 August 2001

- - His clemency petition was also rejected by the President on 15 July 2004.

- Still in an ongoing process of judicial review.

26 Okwudili Ayotanze/ 31/Nigerian

Narcotics

28 January 2001


13 August 2001

- - The decision was reconfirmed by the West Java Court of Appeal and the Supreme Court

27 Hansen Anthony Nwaolisa/M/33/ Nigerian

Narcotics

29 January 2001


13 August 2001

27 June 2008

- Since the verdict was announced, he has tried to get a commutation of sentence through appeal and cassation, but rejected.

- His appeal for a judicial

ANNEX 2

146


review was also rejected by the Supreme Court.

- His clemency petition was also rejected by the President in July 2004.

28 Namaona Dennis/L/ Malawian

Narcotics

15 April 2001

West Java Court of Appeal

15 October 2001

- - The Tangerang District Court had granted him a lifetime sentence through a decision letter number 453/Pid.B/2001 on 4 September 2001.

- His appeal was rejected by the West Java Court of Appeal and granted him with death sentence through a decision letter number 338/Pid/2001/PT Bdg on 15 October 2001

- His cassation was also rejected by the Supreme Court

- His clemency petition was also rejected by the President in 9 July 2004.

- As a preparation for the execution, he was transferred, on 21 December 2008 at 23.30, from Pasir Putih correctional institution to the first class correctional institution of Tangerang.

- He had been offered three times to appeal for another judicial review and he refused it. However when the execution was prepared, he appealed for a judicial review on 13 December 2008 through Tangerang District Court.

29 Syargawi/M/21/

Murder of 7

January 2000

District Court of

27 November

- -

147

Indonesian members of a family of Anak Dalam Tribe

Bangko, Merangin, Jambi

2001

30 Harun/M/31/Indonesian

Murder of 7 members of a family of Anak Dalam Tribe

January 2000

District Court of Bangko, Merangin, Jambi

27 November 2001

- -

31 Syofiai/M/ 27/ Indonesian

Murder of 7 members of a family of Anak Dalam Tribe

January 2000

District Court of Bangko, Merangin, Jambi

27 November 2001

- -

32 Muhamad Abdul Hafeez/M/ 32/ Pakistani

Narcotics

26 June 2001


28 November 2001

- - His clemency petition was rejected by the President on 9 July 2004

- The case is still being reviewed under a judicial review process.

33 Edith Yunita Sianturi/F/ 24/ Indonesian

Narcotics

4 June 2001


27 December 2001

- - Regarding to the judicial review against the Law No. 22 of 1997 on Narcotics that had been submitted by her, the Constitutional Court ruled that death penalty under that law does not violate the 1945 Constitution.

- In April 2009 she died at the third class correctional institution of Tangerang, due to an illness.

34 Abdul Hasan

Robbery and

- - 2002 - - In October 2007, he escaped from the Pasir Putih

ANNEX 2

148


a.k.a Adul/M/ Indonesian

Murder correctional institution, Nusakambangan, Cilacap.

35 Ridwansyah bin Atung Daeng a.k.a Iwan/M/20/ Indonesian

Murder of five family members of Madani

3 July 2001

District Court of Pontianak

11 February 2002

- -

36 Nonthanam M Saichon/F/21/Thai

Narcotics (Possessed 100 grams of heroin)

1 September 2001


13 March 2002

- - In the process of a judicial review in the Supreme Court to convert her sentence into a lifetime sentence.

37 Taufik bin Abdullah Halim/M/Malaysian

Bombing Plaza Atrium (terrorism)

31 July 2001


7 May 2002 - - Still in an ongoing legal process.

38 Edy Setyono a.k.a Abas/M/

Indonesian

Bombing Plaza Atrium (terrorism)

31 July 2001


13 May 2002

- - Still in an ongoing legal process.

39 Merri Utami binti Siswandi/F/30/ Indonesian

Narcotics

31 October 2001


25 May 2002

- - The Supreme Court rejected her appeal for a judicial review.

40 Saridi/M/35/Indonesian

Murder of a married couple

2002 District Court of Purbalingga

12 September 2002

- -

41 Bunyong Khaosa Ard/F/45/ Thai

Narcotics

7 April 2002


22 October 2002

- - She is still in an ongoing legal process.

42 Obinna Nwajagu/M/24/Malawia

Narcotics

7 April 2002


22 October 2002

- - He is still in an ongoing legal process.

149

n

43 Ang Kim Soei/M/50/Dutch

Psychotropic/owner of an ecstasy factory

4 April 2002


13 January 2003

- - He is still in an ongoing legal process.

44 Heru Lumia/M/27/Indonesian

Murder and mutilation

22 June 2002

District Court of Cibinong

19 March 2003

- -

45 Benged Siahaan a.k.a Lilis/F/37/ Indonesian

Murder and mutilation

22 June 2002

District Court of Cibinong

19 March 2003

- -

46 Jun Hao a.k.a Vass Liem/M/29

Psychotropic

6 December 2002

District Court of Tanjung Pinang, Riau

12 June 2003

- -

47 Denny alias Kebo/M/22/Indonesian

Psychotropic

6 December 2002


12 June 2003

- -

48 Ayam/M/41/Indonesian

Psychotropic

6 December 2002


12 June 2003

- -

49 Amrozi bin H Nurhasyim/M/41/ Indonesian

Bali Bombing (Terrorism)

12 October 2002

District Court of Denpasar

7 August 2003

9 November 2008

- He annulled his second appeal for judicial review.

- His judicial review was rejected by the Supreme Court on 30 August 2007, he then appealed for the third judicial review.

- His application for a judicial review against the Law No. 2/Pnps/1964 on the Execution Procedure of Death Penalty was rejected by the Constitutional Court in a trial on 21 October 2008.

ANNEX 2

150


- He was executed at around 00.25 (Western Indonesian Time) at the Nirbaya Hill Nusakambangan, Cilacap, Central Java.

50 Abdul Aziz alias Imam Samudera/M/ Indonesian


12 October 2002


10 September 2003

9 November 2008

- He annulled his second appeal for judicial review.

- His judicial review was rejected by the Supreme Court on 30 August 2007, he then appealed for the third judicial review.


- He was executed at around 00.25 (Western Indonesian Time) at the Nirbaya Hill Nusakambangan, Cilacap, Central Java.

51 Ali Ghufron alias Mukhlas/M/Indonesian


12 October 2002


02 October 2003

9 November 2008

- He annulled his second appeal for judicial review

- His judicial review was rejected by the Supreme Court on 30 August 2007, he then appealed for the third judicial review


- He was executed at around 00.25 (Western Indonesian Time) at the Nirbaya Hill

151

Nusakambangan, Cilacap, Central Java.

52 Irwan Sadawa Hia a.k.a. Irwan/M/28/Indonesian

Robbery and premeditated murder of a family

4 December 2001

District Court of Lubuk Basung, West Sumatera

- - - The death sentence was has also been reconfirmed by the West Sumatra Court of Appeal

- The first appeal for a judicial review was annulled by the Supreme Court on 17 October 2002

- His clemency petition was also rejected by President Megawati through a Presidential Decree No.12/g of 2004 on 9 July 2004.

- He appealed for a second judicial review due to a misapplication of the law in the legal consideration.

- On 9 October 2007, he escaped from the Muaro Padang correctional institution, Padang, West Sumatra.

53 Taruni Hia alias Roni/M/25/ Indonesian

Robbery and premeditated murder of a family

4 December 2001

District Court of Lubuk Basung, West Sumatera

- - - The death sentence was has also been reconfirmed by the West Sumatra Court of Appeal

- The first appeal for a judicial review was annulled by the Supreme Court on 17 October 2002

- His clemency petition was also rejected by President Megawati through a Presidential Decree No.12/g of 2004 on 9 July 2004.

- He appealed for a second judicial review due to a misapplication of the law in the legal consideration.

- On 9 October 2007, he escaped from the Muaro

ANNEX 2

152


Padang correctional institution, Padang, West Sumatra.

54 Michael Thitus Igweh/M/23/Nigerian

Narcotics

22 August 2002


23 October 2003

- -

55 Hillary K Chimeza/M/38/ Nigerian

Narcotics

22 August 2002


23 October 2003

- -

56 Konkwo Kingley/M/29/South African

Narcotics

October 2003


- - - On 21 August 2004, the North Sumatra Court of Appeal has reconfirmed his death sentence.

57 Eugene Ape/ Nigerian

Narcotics

21 February 2003


4 November 2003

- -

58 Ekpere Dike Oce Kamma a.k.a Joseph Samuel/ Nigerian

Narcotics

21 February 2003


4 November 2003

- -

59 Stephen Rasheed Akinyemi/M/34/Nigerian

Narcotics

July 2003


2 April 2004 - -

60 Humperey Ejike/26/ Nigerian

Narcotics

2 August 2003

District court of Central Jakarta

7 April 2004 - -

61 Okonko/L/29/Sierra Leone

Narcotics

25 October 2003

District court of Medan

19 May 2004

-

62 Martin Anderson a.k.a Belo/L/40/ Ghanan

Narcotics

7 November 2003

District court of South Jakarta

02 June 2004

- -

153

63 Marco Archer Cardoso Moreira/42/Brazilian

Narcotics

August 2003

District court of Tangerang

08 June 2004

- -

64 Gunawan Santosa a.k.a Acin/L/ Indonesian

Premeditated murder of a Director of the Asaba Inc, and his guard(s)

19 July 2003

District court of North Jakarta

24 June 2004

- - He was arrested on 11 September 2003.

- He appealed - He had managed to escape

from the Cipinang correction institution on 5 May 2006 and was captured again at Plaza Senayan, Jakarta on 20 July 2007.

- Through a letter dated on 30 January 2009, the Attorney General’s Office gave 1 month-time for him too appeal for a judicial review. If he did not appeal within one month-time, the Attorney General Office will execute the death sentence.

65 Seck Osmane/M/Senegalese

Drugs Dealer and possession

20 October 2003

District Court of South Jakarta

21 July 2004 - - Under an ongoing legal process

66 Sylvester Obiekwe Nwolise/M/Nigerian

Narcotics

22 December 2003


1 September 2004

- - Under an ongoing legal process

67 Iwan Darmawan a.k.a Rois/M/29/ Indonesian

Assisted the hiding of the Australian Embassy bomber(s)

- District Court of South Jakarta

13 September 2004

- - Under an ongoing legal process

68 Daniel Narcoti 4 District 22 - -

ANNEX 2

154


Enemuo a.k.a Diarrassauba Mamadou/M/28/Nigerian

cs January 2004

Court Of Tangerang

September 2004

69 Imron Setiaji/M/33/Indonesian

Premeditated murder of Gugus Hermawan

10 June 2004


29 September 2004

- -

70 Rodrigo Gularte/M/32/Brazilian

Smuggling of 6 Kilograms of Cocaine

31 July 2004


7 February 2005

- -

71 Gurdip Singh a.k.a Dishal/M/38/Indian

Narcotics

28 August 2004


7 February 2005

- -

72 Suud Rusli/M /Indonesian

Premeditated murder of Director of Asaba Inc. and his body guard(s)

July 2003

Military High Court

February 2005

- - He appealed

73 Zulfikar Ali/M/41/ Pakistani

Possession of 300 grams of heroin

21 November 2005


14 June 2005

- - Under an ongoing legal process.

- He is now imprisoned in Pasir Putih Correctional Institution, Nusakambangan, Cilacap.

74 Ginong Posses 21 District 14 June - - He is now imprisoned in a

155

Praptidina binti Suparman/M/29/Indonesian

sion of 300 grams of heroin

November 2005

Court of Tangerang

2005 Level III A facilities in the Tangerang Female Correctional Institution, Banten

75 Sastra Wijaya/M/47 /Indonesian

Production of second and third classes of psychotropic drugs

5 November 2004

District Court of West Jakarta

4 August 2005


76 Yuda a.k.a Akang/M/33/ Indonesian

Production of second and third classes of psychotropic drugs

5 November 2004


4 August 2005


77 Iwan Dharmawan Mutho a.k.a Rois/M/30/ Indonesian

Assisted the hiding of the Australian Embassy bomber(s)

9 September 2004


13 September 2005

- - On December 2005, Jakarta Court

of Appeal reconfirmed the death sentence

78 Ahmad Hasan/M/34/ Indonesian

Assisted the hiding of the Australian Embassy

9 September 2004


14 September 2005

- - On December 2005, Jakarta Court

of appeal reconfirmed the death sentence

ANNEX 2

156


bomber(s)

79 Kolonel Laut M Irfan Djumroni/M/Indonesian

Murder of a Religious Court judge and his ex-wife

21 September 2005

Military High Court III-Surabaya

2 February 2006

- - He was granted with additional punishment: discharged from the Navy Force, to cover all the trial expenses of IDR 20.000,00 and remained detained until he obtains a permanent legal force

- He appealed to the Court of Appeal.

80 Asep Jaja/M/ Indonesian

Attack(s) on a civilian residence and a security post

2004 and May 2005

District court of Ambon, Maluku

13 February 2006

- -

81 Myuran Sukumaran/M/24/ Australian

Narcotics

17 April 2005

District court of Denpasar

14 February 2006

- - Denpasar Court of Appeal rejected his appeal and reconfirmed the death sentence on 20 April 2006.

- The Supreme Court reconfirmed the death sentence

- Regarding to a judicial review on the

Law No. 22 of 1997 on Narcotics that she had submitted on 30 October 2007, the Constitutional Court decided that death penalty under that particular law does not violate the 1945 Constitution.

82 Andrew Chan/M/21/Australian

Narcotics

17 April 2005

District court of Denpasar

14 February 2006

- - Denpasar Court of Appeal rejected his appeal and reconfirmed the death sentence on 20 April 2006.

- Supreme Court reconfirmed the death sentence

157

- Regarding to a judicial review on the Law No. 22 of 1997 on Narcotics that she had submitted on 30 October 2007, the Constitutional Court decided that death penalty under that particular law does not violate the 1945 Constitution.

83 Tan Duc Thanh Nguyen/M/23/ Australian

Narcotics

17 April 2005

Supreme Court

6 September 2006

- - On 15 February 2006 Denpasar District Court granted a lifetime of imprisonment and the Denpasar Court of Appeal reduced the sentence to 20 years of imprisonment on 13 April 2006.

- Through its cassation decision on 6 September 2006, The Supreme Court converted his sentence to the death sentence.

- In the judicial review decision dated on 11 February 2008, The Supreme Court granted a lifetime of imprisonment and annulled the death sentence

84 Si Yi Chen/M/20/Australian

Narcotics

17 April 2005

Supreme Court

6 September 2006

- - On 15 February 2006, Denpasar District Court had granted a lifetime of imprisonment to him, and then commuted by the Denpasar Court of Appeal to 20 years of imprisonment on 13 April 2006.

- In its cassation decision on 6 September 2006, the Supreme Court increased the sentence to death sentence.

- In its judicial review decision

ANNEX 2

158


on 11 February 2008, the Supreme Court commuted the sentence to a life time of imprisonment and annulled its previous decision

85 Matthew James Norman/M/19/ Australian

Narcotics

17 April 2005

Supreme Court

6 September 2006

- - On 15 February 2006, Denpasar District Court had granted a lifetime of imprisonment to him, and then commuted by the Denpasar Court of Appeal to 20 years of imprisonment on 13 April 2006.

- In its cassation decision on 6 September 2006, the Supreme Court increased the sentence to death sentence.

- In its judicial review decision on 11 February 2008, the Supreme Court commuted the sentence to a life time of imprisonment and annulled its previous decision

86 Scott Anthony Rush/M/19/Australian

Narcotics

17 April 2005

Supreme Court

6 September 2006

- - Previously, the Denpasar District Court had granted a lifetime of imprisonment on 15 February 2006 and was confirmed by the Denpasar Court of Appeal

- In its cassation decision on 6 September 2006, The Supreme Court converted the sentence to death sentence.

- Regarding to a judicial review on the Law No. 22 of 1997 on Narcotics that she had submitted on 30 October 2007, the Constitutional Court decided that death penalty under that particular law does not

159

violate the 1945 Constitution.

87 Edi Alharison/M/27/ Indonesian

Premeditated murder

26 April 2005

Court of Appeal of Padang

22 May 2006

- - The District court of Payakumbuh granted him 20 years of imprisonment on 29 March 2006 through its decision No.122/PID.B/2005/PN.PYK.

- The prosecutor appealed, and the Padang Court of Appeal granted him a death sentence on 23 May 2006 through its decision No. 57/PID/2006/PT.PDG.

- On 28 August 2006, the Supreme Court rejected his cassation through its decision No. 1795K/PID/2006.

- He has submitted a clemency petition to the President

- On 26 August 2008, along with 10 other inmates, he was transferred from Level II A facilities of the Muaro Padang correctional institution to Nusakambangan Correctional Institution, Cilacap.

88 Dodi Marsal/M/31/ Indonesian

Premeditated murder

- Court of Appeal of Padang

30 May 2006

- - On 9 October 2007 he had managed to escape from Muaro Padang Correctional Institution, West Sumatera.

89 Federick Luttar/M/31/Zimbabwean

Narcotics

4 March 2006


19 October 2006

- -

90 Benny Sudrajad a.k.a Benny

Narcotics

11 November


6 November 2006

- - The Banten Court of Appeal reconfirmed the death sentence

ANNEX 2

160


Oey a.k.a Andreas Indrijatno a.k.a Tandi Winardi/M/48/ Indonesian

2005 - The Supreme Court also reconfirmed the death sentence against him on 29 May 2007.

91 Iming Santoso a.k.a Budhi Cipto/M/46/Indonesian

Narcotics

11 November 2005


6 November 2006

- - The Banten Court of Appeal reconfirmed the death sentence

- The Supreme Court reconfirmed the death sentence on 29 May 2007

92 Ronald Saragih/M/ Indonesian

Murder of 4 members of a family

8 May 2006

District Court of Lubuk Pakam, North Sumatera

13 November 2006


93 Nasib Purba/M/ Indonesian

Murder of 4 members of a family

8 May 2006

District court of Lubuk Pakam, North Sumatra

13 November 2006


94 Suryanto/M/33/ Indonesian

Ecstasy smuggling

22 November 2006

District court of Batam, Riau Archipelago

23 May 2007

- - He has accepted the decision of Batam District court and did not go for an appeal.

95 Agus Hadi/M/44/ Indonesian

Ecstasy smuggling

22 November 2006

District Court of Batam, Riau Archipelago

23 May 2007

- - He appealed.

96 Pujo Lestari/M/30/ Indonesian

Ecstasy smuggling

22 November 2006

District court of Batam, Riau Archipelago

23 May 2007

- - He appealed.

97 Zhang Manquan/42/Chinese

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007

- - The Tangerang district court and the Banten Court of Appeal granted him 20 years of imprisonment.

- In its cassation decision, the Supreme Court granted him a death sentence on 29 May

161

2007.

98 Gan Chun Nyi/43/ Chinese

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007


- In its cassation decision, the Supreme Court granted him a death sentence on 29 May 2007.

99 Chaen Hoengxin/36/Chinese

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007



100 Jiang Yuxin/43/ Chinese

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007



101 Zhu Xuxiong/35/Chinese

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007



102 Nicolaas Garnick Yosephus Gerardus a.k.a Dicky/M/60/Dutch

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007

- - The Tangerang District Court granted him a lifetime imprisonment.

- The Banten Court of Appeal reconfirmed the previous decision by granting him a lifetime imprisonment

- In its cassation decision, the Supreme Court granted him a death sentence on 29 May

ANNEX 2

162


2007.

103 Serge Areski Atlaoui/M/60/French

Narcotics and Drugs

11 November 2005

Supreme Court

29 May 2007

- - The Tangerang District Court granted him a lifetime imprisonment

- The Banten Court of Appeal reconfirmed the Tangerang District Court’s decision by granting him a lifetime imprisonment


104 Yafonaso Laia a.k.a Ama Anu/M/33/ Indonesian

Premeditated murder

16 November 2006

District court of Gunung Sitoli, Nias Selatan, Sumatera Utara

20 June 2007 (Decision No. 63/Pid.B/2007/PN.GS)

- - The decision was reconfirmed by the North Sumatera Court of Appeal through its decision No. 415/Pid/2007/PT.Mdn.

- The Supreme Court reconfirmed the sentence through its decision No. 2500K/Pid/2007.

- Up to the present moment, he has not pursued any legal remedy.

105 Beraati Laia a.k.a Ina Otuna/F/37/Indonesian

Premeditated murder

16 November 2006

District court of Gunung Sitoli, South Nias, North Sumatera

20 June 2007 (Decision No. 63/Pid.B/2007/PN.GS)

- - The North Sumatera Court of Appeal through its decision No.415/Pid/2007/PT.Mdn has also reconfirmed the decision.

- The Supreme Court reconfirmed the sentence through decision No. 2500K/Pid/2007.

- Up to the present moment, he has not pursued any legal remedy.

106 Hanky Gunawan/M/ Indonesian

Psychotropic

23 May 2006

Supreme Court

January 2008

- - On a trial held on 4 April 2007 before the Surabaya District Court, the public prosecutor indicted him with death

Sentence.

163

- On 17 April 2007 the Surabaya District Court granted him 15 years of imprisonment

- East Java Court of Appeal granted him 18 years of imprisonment

- In 2008, the Supreme Court granted him a death sentence

107 Fatizanolo Laia a.k.a Ama Yupi/M/41/ Indonesian

Murder of five members of a family

2 March 2007

District court of Gunung Sitoli, Nias

15 January 2008


108 Andy Tiono a.k.a Abok a.k.a China/M/32/Indonesian

Murder of the executive director of Mutiara Inti Sari (MIS) Inc. and his wife

12 August 2007

District court of Medan, North Sumatera

26 February 2008

- - The North Sumatera Court of Appeal converted the sentence to a lifetime of imprisonment through its decision No. 198/Pid/2008/PT.Mdn, which was sent to the Medan District Court on 3 June 2008.

109 Delistian Sitohang/M/19/ Indonesian

Murder of the executive director of Mutiara Inti Sari (MIS) Inc. and his wife

12 August 2007

District court of Medan, North Sumatera

26 February 2008

- - The North Sumatera Court of Appeal converted the sentence to a lifetime of imprisonment through its decision No. 198/Pid/2008/PT.Mdn, which was sent to the Medan District Court on 3 June 2008.

110 Tubagus Yusuf Maulana a.k.a Usep/M/37/Indonesian

Fraud and murder of eight persons

May and July 2007

District court of Rangkasbitung, Banten

10 March 2008

18 July 2008

- Regarding to the death sentence, he did not pursue any further legal remedy.

- He had been executed on 23:30 local time, in a forest at Cimarga Lebak, Banten,

ANNEX 2

164


and died 10 minutes after the shooting.

111 Sucipto/M/40/ Indonesian

Rape and Murder

15 December 2005

District court of Limapuluh Kota, West Sumatera

- - - The Padang Court of Appeal rejected his appeal.

- The Supreme Court also rejected his appeal.

- On 9 August 2008 he appealed for a Judicial Review to the Supreme Court.

- On 26 August 2008, along with 10 other inmates, he was transferred from Level II A facilities of the Muaro Padang correctional institution to Nusakambangan Correctional Institution, Cilacap.

112 Maulana a.k.a Item/M/ Indonesian

Murder of a female college student

January 2008

District court of Depok

18 September 2008

- - He was not accompanied by a lawyer when the verdicts was announced

113 Mulyadi Dwi Asmono a.k.a Acong/M/ Indonesian


January 2008


18 September 2008


114 Yohanes Martinus a.k.a Dado/M/ Indonesian


January 2008


18 September 2008


115 Christian Salim a.k.a Awe/48/M/Singapore an

Narcotics and drugs

November 2007


18 September 2008

- - On 15 December 2008, the Jakarta Court of Appeal of reconfirmed the death sentence ruled by the West Jakarta District Court.

116 Lim Jit Wee a.k.a Kim/43/M/

Narcotics and drugs

November 2007


18 September 2008

- - On15 December 2008 Court of Appeal of DKI Jakarta reconfirmed death sentence

165

Malaysian ruled by the District court of West Jakarta.

117 Jat Lie Chandra a.k.a Cece/40/F/Singapore an

Narcotics and drugs

November 2007


18 September 2008

- - Lim Piek Kiong a.k.a Monas’s wife was sentenced to one year of imprisonment. Monas was arrested on 22 November 2008 at Mall Taman Anggrek Apartment with the possession of 49,08 billions as a evidence

- On 10 December 2008 the Jakarta Court of Appeal reconfirmed the death sentence ruled by the District court of West Jakarta.

118 Ong Seng Chye/M/ Malaysian

Psychotropic

December 2007

Court of Appeal of DKI Jakarta

27 November 2008

- - He had been sentenced to a lifetime imprisonment by the North Jakarta District Court on 17 September 2008 before the Jakarta Court of Appeal granted him with a death sentence

119 Very Idham Henyansyah a.k.a Ryan bin Ahmad/M/ Indonesian

Premeditated murder against 11 persons

District court of Depok, West Java

6 April 2009 - - When the death verdict was announced, he didn’t show any remorse and he admitted that he had killed 11 persons in Jombang, East Java.

- He appealed immediately.

Source: Compiled from various sources

ANNEX 2

166


ADDITIONAL INFORMATION:

A. Type of Case


1. Narcotics/psychotropic 72 cases 5 cases

2. Murder 38 cases 13 cases

3. Terrorism 9 cases 3 cases

Total 119 cases 21 cases

B. Sex


1. Male 110 people 18 people

2. Female 9 people 3 people


C. Death Sentences and Executions on a Yearly Sequence

No Year Death Sentence Execution

1. 1998 5 people -

2. 1999 - -

3. 2000 10 people -


5. 2002 9 people -

6. 2003 12 people -




10. 2007 10 people 1 person


12. 2009 1 person -

13. Unknown 6 people -


167

D. Foreign Citizens

No Nationality Death Sentence Execution

1. Nigerian 11 people 2 people

2. Australian 7 people -

3. Nepalese 6 people -

4. Chinese 5 people -

5. Malaysian 4 people -

6. Singaporean 3 people -

7. Malawian 2 people -

8. Zimbabwean 2 people -

9. Pakistani 2 people -

10. Thai 2 people 2 people

11. Brazilian 2 people -

12. Dutch 2 people -

13. Angolan 1 person -

14. South African 1 person -

15. Sierra Leonean 1 person -

16. Ghanaian 1 person -

17. Senegalese 1 person -

18. Indian 1 person 1 person

19. France 1 person -


ANNEX 2

E. Jurisdiction of Courts that Granted Death Sentence

No Jurisdiction of Courts Number of Conviction

1. District Court 101 convictions

2. Court of Appeal 3 convictions

3. Military Court 2 convictions

4. Supreme Court 12 convictions

5. Un Known 1 conviction

Total 119 convictions

168


F. Jurisdiction Area of Courts that Granted Death Sentence

No Area Court Province Number of Conviction

1. Sumatera District Court of Medan North Sumatera

4 convictions 28 convictions

District Court of Lubuk Pakam

North Sumatera

4 convictions

District Court of Gunung Sitoli

North Sumatera

3 convictions

Padang Court of Appeal West Sumatera

2 convictions

District Court of Lima Puluh Kota

West Sumatera

1 conviction

District Court of Lubuk Basung

West Sumatera

2 convictions

District Court of Sekayu North Sumatera

2 convictions

District Court of Batam Riau 3 convictions

District Court of Tanjung Pinang

Riau 3 convictions

District Court of Bangko Jambi 3 convictions

District Court of Kuala Tungkal

Jambi 1 conviction

2. Java and Bali


Banten 32 convictions 84 convictions

District Court of Rangkasbitung

Banten 1 conviction

Supreme Court Special Capital City Region of Jakarta

12 convictions

Jakarta Court of Appeal Special Capital City Region of Jakarta

1 conviction

Military High Court of Jakarta

Special Capital City Region of

1 conviction

Jakarta



6 convictions



5 convictions

169

District Court of South Jakarta


5 convictions

District Court of North Jakarta


1 conviction

West Java Court of Appeal

West Java 1 conviction

District Court of Depok West Java 4 convictions

District Court of Cibinong West Java 2 convictions

District Court of Purbalingga

West Java 1 conviction


Central Java 3 convictions

District Court of Banyumas

Central Java 1 conviction

Military High Court of Surabaya



East Java 2 convictions


Bali 5 convictions

3. Sulawesi and District Court of Palu Central Sulawesi

3 convictions 4 convictions

Maluku District Court of Ambon Maluku 1 conviction

4. Kalimantan District Court of Kapuas Central 1 conviction 2 convictions Kalimantan

District Court of Pontianak

West Kalimantan

1 conviction

5. Unknown 1 conviction

TOTAL 27 District Courts 14 Provinces 119 convictions

2 Courts of Appeal

2 Military High Courts

1 Supreme Court

ANNEX 2

170


171

Bibliography

Legislations

Second Amendment to the 1945 Constitution of 2000Law No. 1 of 1946 on the Application of Wetboek van Strafrecht as a

Criminal Code.Presidential Decree No 5 of 1959 on the Authority of the Attorney

General/Military General Attorney.Government Regulation in Lieu of Law No.21 of 1959 on Enhancing

Punishment against Economic Based CrimeEmergency Law No. 12 of 1951 on FirearmLaw No. 11/PNPS/1963 on the Elimination of Subversive ActionsLaw No. 19 of 1964 on Judicial PowerLaw No.2/PNPS/1964 on the Execution Procedure of Death PenaltyLaw No. 31/PNPS/1964 on Principle Provisions of Atomic EnergyLaw No.14 year 1970 on Judicial PowerLaw No.4 year 1976 on the Amendment and Additional changes to

several articles under the criminal code regarding to the expansionof the application of the provisions on crimes against aviation andaviation facilities

Law No. 5 of 1997 on Psychotropic SubstanceLaw No.22 of 1997 on NarcoticsLaw No.31 of 1999 on the Eradication of CorruptionLaw No.26 of 2000 on Human Rights CourtLaw No. 23 of 2002 on Child ProtectionLaw No.15 of 2003 on the Eradication of TerrorismLaw No.39 of 2004 on the Placement and Protection of Indonesian

Workers Overseas Indonesian Criminal CodeIndonesian Military Criminal Code

172


Documents

Convention on the Prevention and Punishment of the Crime ofGenocide.

Constitution of the Republic of South Africa, 1993.Constitutional Court of the Republic of South Africa, 1995.European Convention for the Protection of Human Rights and

Fundamental Freedoms, 1950.International Covenant on Economic, Social, and Cultural Rights, 1966.International Covenant on Civil and Political Rights, 1966.International Criminal Tribunal for Rwanda.International Criminal Tribunal for the Former Yugoslavia.Jamaican Constitution, 1962.Constitutional Court Decision No. 013/PUU-I/2003.Constitutional Court Decision No. 019-020/PUU-020/PUU-III/2005.Constitutional Court Decision No. 2-3/PUU-V/2007.Protocol Number 6 of the European Convention for the Protection

Human Rights and Fundamental Freedoms, 1985.Second Optional Protocol to the International Covenant on Civil and

Political Rights aiming at the abolition of the death penalty, 1990.The Rome Statute of International Criminal Court, 1998.Universal Declaration of Human Rights (UDHR), 1948.Zimbabwe Constitution, 1979.

Books and Articles

Adian, Donny Gahral, “Mengapa Mesti Hukuman Mati? (Why DeathPenalty?)”, Kompas, 22 March 2005.

Al-‘Ashmawi, Muhammad Sa’id, 2001, “Syari’ah: Kodifikasi HukumIslam” (Syariah: Islamic Law Code), in Charles Kurzman (ed.), WacanaIslam Liberal (Discourse of Islamic Liberal), Paramadina, Jakarta.

An-Na’im, Abdullah Ahmed, 2000, “Islam and Human Rights: Beyond

173

the Universality Debate”, in the American Society of InternationalLaw, “Proceeding the 94th Annual Meeting”.

________________________, 2001, Syari’ah dan Isu-Isu HAM(Syari’ah and Human rights issues), in Charles Kurzman (ed.), WacanaIslam Liberal (Discourse of Islamic Liberal), Paramadina, Jakarta.

Baso, Ahmad, “____, “Usul Fiqih, Sejarah” (History of Fiqih),downloaded from www.wahidinstitute.org/indonesia/content/view/149/52/1/3/. (downloaded 13 February 2009).

Basyaib, Hamid, Richard Holloway, and Nono Anwar Makarim, 2002,“Mencuri Uang Rakyat: 16 Kajian Korupsi di Indonesia” (Stealing Moneyfrom the People: 16 Essays on Corruption in Indonesia) , In Book 2, PestaTentara, Hakim, Bankir dan Pegawai Negeri (Parties of Soldiers, Bankersand State Servants), Aksara Foundation, Jakarta.

Dulles, Avery, 2006, “Katolisisme dan Hukuman Mati” (Catholicismand Death Penalty) in Konferensi Waligereja Indonesia (the Bishop’sConference of Indonesia), Hukuman Mati, Seri Dokumen GerejawiNo. 87, Departemen Dokumentasi dan Penerangan KWI, Jakarta.

European Convention for the Protection of Human Rights andFundamental Freedoms.

Foucoult, Michael, 1977, Discipline & Punish: The Birth of the Prison.Glasius, Marlies, 1999, Foreign Policy on Human Rights: Its Influence on Indonesia

under Soeharto, Disertasi Doktoral Universitas Utrecht, Belanda.Hamzah, Andi, 1986, Sistem Pidana dan Pemidanaan Indonesia: Dari Retribusi

ke Reformasi (Criminal Judiciary System and Criminalization in Indonesia),Pradnya Paramita, Jakarta.

Hood, Roger, 1996, The Death Penalty: A Worldwide Perspective, Oxford,Clarendon Press.

Hood, Roger, 2002, The Death Penalty: A Worldwide Perspective, ThirdEdition, Oxford University Press, Oxford.

Husein, Syahruddin, 2003, Pidana Mati Menurut Hukum Pidana Indonesia(Death Penalty under Indonesian Criminal Law), Bagian Hukum Pidana,Fakultas Hukum Universitas Sumatra Utara.

BIBLIOGRAPHY

174


Husken, Frans dan Huub de Jonge (eds.), 2003, Orde Zonder Order :Kekerasan dan Dendam di Indonesia 1965-1998, [Violence and Vengeance:Disontent and Conflict in New Order Indonesia], diterjemahkan olehM. Imam Aziz, LKiS, Yogyakarta.

Imparsial, Tim, 2004, Terorisme: Definisi, Aksi dan Regulasi (Terrorism:Definition, Action and Regulation), Imparsial dan Koalisi untukKeselamatan Masyarakat Sipil, Jakarta.

Koji, Teraya, “Emerging Hierarchy in International Human Rights andBeyond: From the Perspective of non-Derogable Rights”, [EJIL(2001), Vol. 12, No. 5].

Konferensi Wali Gereja Indonesia, Hukuman Mati (Death Penalty), SeriDokumen Gerejawi No. 87, Departemen Dokumentasi danPenerangan KWI, Jakarta, 2006.

Lee Roy S., (ed.), 1999, The International Criminal Court: The Making of theRome Statute, Issues, Negotiations, Results, The Hague, Kluwer LawInternational.

Lubis, Todung Mulya dan Alexander Lay, 2009, Kontroversi HukumanMati: Perbedaan Pendapat Hakim Konstitusi (Death Penalty Controversy:Dissenting Opinions of Constitutional Court Judges), Kompas, Jakarta.

Mahfud MD, Moh., 2000, Politik Hukum di Indonesia (Legal Politics inIndonesia), LP3ES, Jakarta.

Notulensi focus group discussion (FGD) “Relevansi Hukuman Mati dan HakHidup yang Dijamin oleh Konstitusi” (The Relevance of Death Penaltyand the Right to Life under the Constitution), hotel Sahid, Jakarta,26-27 November 2008.

Notulensi Diskusi Publik, “Agama Bicara tentang Hukuman Mati”(Religions Speak about Death Penalty), kerjasama Imparsial-JPICOFM Indonesia, Jakarta Media Center, 28 November 2008.

O’Byrne, Darren J., 2003, Human Rights: An Introduction, Pearson WducationLimited, Delhi.

Remmelink, Jan, 2003, Hukum Pidana: Komentar atas Pasal-Pasal dari KitabUndang-undang Hukum Pidana Belanda dan Padananannya dalam Kitab

175

Undang-undang Hukum Pidana Indonesia (Criminal Judiciary system:Comments on Articles under the Netherlands Criminal Code andIts Compatibility with the Indonesian Criminal Code), GramediaPustaka Media Tama, Jakarta.

Sahetapy, J.E., 2007, “Pidana Mati dalam Negara Pancasila” (Death Penaltyin a Pancasila Country), PT. Citra Aditya Bakti, Bandung.

Sapardjaja, Komariah Emong, “Permasalahan Pidana Mati Dewasa IniDi Indonesia” (Contemporary Issues on Death Penalty in Indonesia),www.legalitas.org.

Shahab, Alwi, “Kamar Penyiksaan di Balai Kota” (Torture Dungeon atthe City Hall), Republika, 16 November 2003.

Syariati, Ali, 2001, “Islam dan Kemanusiaan” (Islam and Humanity), inCharles Kurzman (ed.), Wacana Islam Liberal (Discourse of IslamicLiberal), Paramadina, Jakarta.

Tessema, Belay Frenesh, A Critical Analysis Of Non-Derogable Rights In AState Of Emergency Under The African System: The Case Of Ethiopia AndMozambique, (Center for Human Rights Faculty of Law Universityof Pretoria, 31 October 2005).

Vago, Steven, 1999, “Law and Society, New Jersey, Prentise Hall,Englewood Cliffs”, dalam Sosiologi Hukum, Dikumpulkan olehWinarno Yudho, Program Pascasarjana Fakultas Hukum UniversitasIndonesia, Jakarta.

Zhenjun, Wang, Several Issues Relating to Protecting Non-Derogable Right inChina, Paper presented for Constitutions and Emergencies Workshop,Athens, 12 June 2007.

Printed and Electronic Media

Detikcom, “Tersangka Tindak Kejahatan Narkoba Naik 36,8% per Tahun”(The Number of suspects of drug-related crimes has increased to36,8% per Year), 1 March 2006.

Detikcom, “Kasus Kejahatan Naik 9,28%, Paling Banyak Pencurian Berat”

BIBLIOGRAPHY

176


(The Number of Crimes has Increased to 9,28%, Mostly on HeavyTheft), 27 November 2006.

Detikcom, “61.080 Kejahatan di Tahun 2006, Kasus Narkoba Naik 50,5%”(61.080 Criminal Offenses in 2006, Narcotic-Related Crime increasedto 50,5%) 28 December 2006.

Detikcom, “ Kapolri: Kriminalitas Naik 5,1%” (National Police Chief:Criminal Offenses Increased to 5,1%) , 17 September 2007.

Koran Tempo, “Perusak Lingkungan Bakal Dijerat UU Anti Terorisme”(Environmental Vandals will be Punished with the Anti TerrorismLaw), 21 January 2004.

Suara Pembaruan, “Presiden Gagal Pahami Semangat PemberantasanKorupsi” (The President has Failed to Understand the Spirit ofEradicating Corruption), 10 October 2003.

The Jakarta Post , “RI, Holland, Agree to Boost Ties”, 1 November1988.

www.kompas.com/kompas-cetak/0302/08/nasional/120998.htm,“Terpidana Mati Narkoba Hendaknya Segera Dieksekusi – LBHMedan Meminta Presiden Lebih Manusiawi” (Death Convicts ofDrug-Related Crime should be Executed Soon-The Legal AidInstitute of Medan Asked the President to be More Humane) (visitedon 1 April 2004).

www.pikiran-rakyat.com/cetak/0203/10/0504.htm, “PelaksanaanHukuman Timbulkan Efek Jera: Sejumlah Hukuman Mati takKunjung Dieksekusi” (Execution of Punishment will ProduceDeterrent Effects: Some Death Sentences Remained unexecuted)(visited on 1 April 2004).

177

IMPARSIAL was established in June 2002 by 18 of Indonesia’s mostprominent human rights activists who shared the same concern: thepower of the state showed an increasing tendency to assert itself to thedetriment of civil society. The founders of IMPARSIAL are: T. MulyaLubis, Karlina Leksono, M.M. Billah, Wardah Hafidz, Hendardi,Nursyahbani Katjasungkana, Ade Rostina Sitompul, Robertus Robet,Binny Buchory, Kamala Chandrakirana, H.S. Dillon, Munir, RachlandNashidik, Rusdi Marpaung, Otto Syamsuddin Ishak, Nezar Patria,Amiruddin, and Poengky Indarti.

Ironically, although the new era after the fall of the New Orderregime of President Soeharto in 1998 has opened the way for greaterpublic advocacy activies, the strength of human rights and other civilsociety groups has tended to decrease in recent years.

All the founders agreed that the time had come for the establishmentof a new human rights protection organization to work for the followinggoals:

(1) to formulate a standardized approach to reporting anddocumenting human rights protection matters;

(2) to prepare and campaign for an alternative human rights policy;and

(3) to work as a partner of the National Commission on HumanRights (Komisi Nasional HAM).

Profil Imparsial

178


Vision and Mission

IMPARSIAL was taken from the word ‘impartiality’ to denote theorganizations commitment to upholding the fundamental equality ofthis rights possessed by all human beings, with special concern given topromoting the rights of the less fortunate. The organization ‘impartiality’also denotes its commitment to helping victims of human rights abuseregardless of their social origins, gender, ethnicity, poitical or religiousbeliefs.

IMPARSIAL is a vehicle for promoting civil liberties, struggling forfundamental freedom, fighting discrimination and supporting humanrights abuse victims seeking justice and accountability.

IMPARSIAL monitors and investigates human rights violations,releases its findings to the public and demands the powerful within thestate fulfill their obligation to protect human rights and work towardsthe elimination of violence from national life.

IMPARSIAL promotes solidarity between Indonesians and worksto garner international support for the faithful implementation ofinternational human rights law.

IMPARSIAL researches the social reality that forms the context inwhich human rights must be protected, recommends changes andalternatives state policy, and keep a close watch on their implementation.

IMPARSIAL is independent of the state, non-partisan, and obtainsits funding from like-minded organization and individuals without anyreciprocal obligation besides a firm commitment to work for theprotection of human rights.

179

Aim

To function as a vehicle for Indonesian civil society in its attempts toapply internationally recognized human rights standards in public policyand in practice.

Unique Characteristic

IMPARSIAL is unique in Indonesian in that it strives to amalgamatea number of important endeavours: to formulate alternative humanrights policies, establish a standardized documentation system of humanrights protection matters in order to advocate legal remedies, and toinstitute a comprehensive system to protect human rights defenders.

Work Ethic

In its work, IMPARSIAL is committed to supporting the importantrole played by human rights defenders at all levels of society –local,national, and international– in advocating changes to national humanrights policy and conducting disciplined research and documentation ofrelated matters.

So far, Imparsial has been working in various activities, such asworkshop and focus group discussion to build alternative policy in issuesrelating to human rights, organized CSO coalition, producing humanrights campaign (posters, leaflets, flyers), and media briefing as well aspress conferences.

Board

T. Mulya Lubis, Karlina Leksono, M.M. Billah, Wardah Hafidz,Hendardi, Nursyahbani Katjasungkana, Ade Rostina Sitompul, Robertus

PROFIL IMPARSIAL

180


Robet, Binny Buchory, Kamala Chandrakirana, H.S. Dillon, Munir,Rachland Nashidik, Rusdi Marpaung, Otto Syamsuddin Ishak, NezarPatria, Amiruddin, and Poengky Indarti.

ManagementExecutive Director Rachland NashidikManaging Director Poengky IndartiProgram Director Al ArafOperational Director Ray Christian Nataliwan ButarbutarResearch and Database Ade Rostina Sitompul,

Otto Syamsuddin Ishak, RusdiMarpaung, Otto Pratama, BhataraIbnu Reza, Junaidi Simun, GhufronMabruri, Erwin Maulana, Swandaru,Dyana Savina Hutadjulu, Ardi Manto

Documentation and Library Dyah Listyanti Yuwono, Ulumuddin Tuasikal, Dewi Apriyanti Pustikasari

Communication Officer Ullie SarimayaFinance Lusia Yuliartha, Irma NurjanahIT and Publisher Sutanandika, Ujang FirmansyahGenera Affair Dado Lucky

IMPARSIAL, the Indonesian Human Rights MonitorJl. Slamet Riyadi Raya No. 19 Matraman Jakarta 13150Phone: (62-21) 859 18656, Fax: (62-21) 859 18650e-mail:[email protected]; [email protected]: www.imparsial.org

Inveighing Against Death Penalty in Indonesia

Documents

Transcript of Inveighing Against Death Penalty in Indonesia