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CHRD 546: Critical and Emerging Regional Issues

Term Paper

Abolition of the Death Penalty in Indonesia: a Conceptual Framework for Action

INTRODUCTION

There is a growing and positive trend for many countries of the world to reject the
death penalty as a necessary deterrent to reduce crime, and therefore to abolish
capital punishment. For example, recent Amnesty International reports show that
Gabon has abolished the death penalty for all crimes, while Mongolia has imposed an
official moratorium for all executions. In the same vein, The International Federation
for Human Rights (FIDH) has stated that to date 104 countries have abolished the
death penalty.

However, according to FIDH a number of countries in Asia, such as Iran and China,
still practice the death penalty, with executions taking place every year. Amnesty
International stated that in 2010 23 countries carried out executions through
shooting, beheading, electrocution, hanging, and lethal injection.

The death penalty is still in force in Indonesia. In 2011 IMPARSIAL reported that from
1998 until December 2010 a total of 205 people had been sentenced to capital
punishment by the courts. A number of prisoners convicted in cases of killings and
drugs are awaiting execution.

In Indonesia the death penalty is widely believed to be the best form of shock therapy
punishment, especially to mitigate rampant corruption. For example, Artidjo Alkotsar
(a judge) has said I will be the first judge to punish a corruptor with the death
penalty. He said this in a seminar in Jakarta (Suara Merdeka.com, February 11,
2012). His statement can be interpreted as indicating that the struggle to abolish the
death penalty will not be easy because it has many supporters in the country.

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The main question of this working paper is why Indonesia should abolish the death
penalty. In practice, this essay is organized into two sections. The first section
provides a theoretical background to the death penalty, primarily a description of the
significance of the second protocol of the International Covenant on Civil and Political
Rights. This section will also discuss why Indonesia has not ratified the abolition of
the death penalty based on the framework of this protocol. The second section
provides an analysis of the main reasons why Indonesia needs to abolish the death
penalty.

DEATH PENALTY ABOLITION: THE SECOND OPTIONAL PROTOCOL AND

DRIVERS FACTORS

The Second Protocol

This universal treaty regarding the abolition of the death penalty is the Second
Optional Protocol to the International Covenant on Civil and Political Rights. The
United Nations General Assembly in 15 December 1989 has adopted it with resolution
number 44/128. In this regards, the Second Protocol is most important and
substantive achievement of abolitionist countries. In particular, it is the only universal
international treaty that requires abolition of the death penalty (Eric Neumayer 2008,
p.4). In short, I regard that ratifying the Second Protocol is very important and a
breakthrough for abolition of the death penalty globally and locally.

Furthermore, Eric Neumayer (2008, p.4-5) notes that there are at least three main
reasons why an analysis of the determinants of Second Protocol ratification
provides additional insight to analysing the determinants of death penalty
abolition within countries.

First, the Second Protocol highly requires that State Parties carry out holistic activities
which go beyond blanket abolition. For example, the Second Protocol states the
exception for the application of the death penalty in time of war pursuant to a
conviction for a most serious crime of a military nature committed during wartime
(Article 2.1). The abolition clause in Article 1 means that this exception can be made
at the time of ratification or accession. In other words, countries that are abolitionist

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for ordinary crimes, but not State Parties, can change their legislation at any time to
extend the scope of crimes considered punishable by death (Eric Neumayer 2008).

Second, the Second Protocol opens the window to opportunities for independent and
international supervision. In this regard, Article 3 requires State Parties to deliver a
report to the UNs Human Rights Committee.

Third, under the Second Protocol State Parties that have ratified the Second Protocol
must show their commitment by respecting human rights, as well as acknowledging
that the existing death penalty in retentionist countries should not be assumed as a
purely domestic matter.

In this regard, it appears that by ratifying the International Covenant a State Party
should not only declare its commitment to basic human rights, but should also prove
this by its real implementation. At the same time it appears that some countries refuse
to ratify the second protocol mainly because they reject international supervision, and
they continue to view the death penalty as a purely domestic affair.

Beth Simmons (2001 p. 18) proposed a similar argument. In relation to ratification of

the International Covenant, she identified three categories of governments. Firstly, the
sincere ratifiers: meaning that they ratified the Covenant because they really value the
content and wanted to apply it. Secondly, false negatives: they may be committed to
the Covenant in principle, but fail to ratify it. An example of this is the United States of
America. They have good record in implementing childrens and womens rights at the
domestic level, but have failed to ratify the Convention on the Right of the Child (CRC)
and Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW). Thirdly, strategic ratifiers: some governments decide to ratify because they
follow other countries that have ratified the treaty. Sometimes the motivation is to
avoid criticism.

Indonesia has not ratified the Second Optional Protocol to the International Covenant
on Civil and Political Rights (adopted by resolution 44/128 of the United Nations
General Assembly as of 15 December 1989) regarding the abolition of the death
penalty. I will discuss in brief below why Indonesia has not yet ratified the Second
Protocol.

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Driver Factors for Death Penalty Abolition

In this section I will discuss driver factors that become determinants of Second
Protocol ratification. The discussion is based on the arguments of Neumayer (2008,
p.249) concerning the political foundations that comprise democracy and
democratization, the historical experience of armed conflict, the political pressures
imposed on retentionist countries by abolitionists, and regional peer group effects.
Here, considering the limited space, I will only discuss the factors related to
democracy and democratization, because these are most relevant to the Indonesian
context.

The basis of the abolitionist perspective is that application of the death penalty
violates basic human rights. For instance, the EU argues that the death penalty is a
denial of human dignity and asserts that the abolition of the death penalty
contributes to (...) the progressive development of human rights (EU 2000a cited in
Neumayer 2008a p, 249).

I argue that only democratic countries are able to respect and uphold fundamental
human rights, hence we cannot expect authoritarian regimes to uphold human rights.
In this I follow the argument of Schabas (cited in Neumayer 2008a, p. 250) that
compared with autocracies, democracies are at the forefront of abolition of the death
penalty. The reason is that democracies, almost by definition, are more willing to
accept constitutional limits on governmental power and one would at least expect
them to respect better the human rights of their citizens (Schabas in Neumayer
2008a).

Democratisation, that is the process of moving from authoritarian to democratic

government, is often the most significant factor in abolition of the death penalty. This
can be seen in the path taken by a number of countries (Neumayer 2008a, p.250).
Germany abolished the death penalty when it became democratic again in 1949.
Countries like Romania and the Czech and Slovak Republics abolished the death
penalty in their democratization era, in the late 1980s. South Africa abolished the
death penalty in the 1990s after the Apartheid era was replaced by democracy, despite
the high number crimes at that time. Hence abolition of the death penalty during

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democratisation often works, in Neumayer word, as a conscious act of distancing

emerging democracies from the authoritarian regimes they replace. In this way human
rights can become a focal point in the transition to democratization, which presents an
ideal environment for the abolition of capital punishment.

In contrast, Andrew Moravcsik (cited in Neumayer 2008, p.9) argues that some
democratic nations have not ratified the Second Protocol because of national or
domestic interests regarding issues of sovereignty. I regard this as an example of Beth
Simmons three categories of government (2001 p. 18), as noted above. In terms of
ratifying the International Covenant, I see such nations as representing her false
negatives: they may be committed to the principles of the Covenant, but fail to ratify
it. One example of this is the United States of America. This nation has a good record
in implementing childrens and womens rights at the domestic level, but it has not
ratified the corresponding UN International Covenants. Despite the fact that the USA
is without doubt a democratic country, it has not abolished the death penalty or
ratified the Second Protocol.

One of the main challenges to ratifying the Second Protocol is resistance from Muslim
countries. For example, Pakistan and Sudan have stated that abolition of the death
penalty is against Islamic law (Neumayer 2008 p.10). To some extent, I would argue
that Indonesia, as the largest Muslim countries in the world, shares a similar concern.
In other words, most Indonesian Muslim believe that the death penalty is part of
Islamic law. I will elaborate on this matter later.

I believe that in Indonesia, compared with other countries, democracy and

democratization are not driver factors leading ratification of the Second Protocol.
Furthermore, I argue that Indonesia has not abolished the death penalty or ratified the
Second Protocol for a number of reasons:

Firstly, to date, discourse on the death penalty is marginal and not a mainstream
issue. In addition to this, the discourse is dominated by a belief that the death penalty
can be shock therapy punishment, which works to deter other people from
committing the same wrongdoings. This belief is held by many levels of society from
the President, General Attorney and religious leaders, to the Commissioner of Human

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Rights (KontraS report). Such widespread beliefs support my contention that any
attempts to abolish the death penalty will face powerful opposition.

Secondly, and following from the first point, there is lack of civil society organizations
in the country working for abolition of the death penalty. In my view, in order to
encourage the government to consider abolition of the death penalty, civil society
organizations need to become heavily involved in building public support for its
abolition. Having said this, we need to acknowledge the efforts of IMPARSIAL and
KontraS, as well as other donors, in working for the abolition of the death penalty in
the country.

Thirdly, the political standpoint of the Indonesian government toward the death
penalty is sometimes ambiguous. When Indonesian citizens are threatened with
capital punishment in such countries as Saudi Arabia, Malaysia or Singapore, the
Indonesian government can be very strong in asking that the death penalty is not
imposed for humanitarian reasons. However within Indonesia the death penalty is still
in force and can be imposed on foreigners who, for example, have been convicted of
drug related crimes (KontraS report).

Fourthly, Indonesias attitude is related to the understanding that Islamic teaching

justifies the death penalty for specific crimes. For example, the Majelis Ulama
Indonesia/MUI (Islamic Council of Indonesia) issued a fatwa concerning the death
penalty at its 7th National Meeting, 28 July 2005 in Jakarta. The MUI supported the
death penalty for specific crimes. This fatwa is not legally binding, but it supports the
view that attempts to abolish the death penalty in Indonesia will face serious
difficulties.

THE MAIN REASONS TO ABOLISH THE DEATH PENALTY

Before I present ideas about why the death penalty should be abolished in Indonesia,
there is a need to understand why the supporters of the death penalty maintain their
ideas.

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There are at least two main arguments used to defend the death penalty. These are
firstly by appeal to social utility, and secondly by appeal to retributive justice.
According to Sarah Roberts-Cady (2010 p.185)

The appeal to social utility is often called a forward-looking justification for

punishment, since it attempts to justify the death penalty by appealing to the
social benefits of that punishment, specifically the prevention of crimes. The appeal
to retributive justice is often called a backward-looking justification for
punishment, because it focuses on a fair response to past actions.

Thus the appeal to social utility concerns the (alleged) effect of the death penalty in
reducing crime, while retributive justice requires that the punishment of a person
who kills someone should be death. In other words, murderers deserve capital
punishment because of their wrongdoings.

In Indonesia, I argue that the appeal to social utility is widely accepted, as mentioned
above. However, this paradigm is weak because it is not supported by scholarly
research. Research findings show that even when the death penalty is implemented,
crime rates in fact increase. An example of this can be seen in Indonesia. Although
there were three executions for drug related offences in 2004, there was no decrease in
drug related crime in 2005. Just the opposite occurred; it increased.

Hence the concept of appeal to social utility or shock therapy, especially in the death
penalty, is extremely problematic. OByrne (quoted in an IMPARSIAL report) made four
critical points about the death penalty as shock therapy punishment.

Firstly there are moral issues. Imposing the death penalty sacrifices a human soul for
pragmatic interests. It reduces humanity to a mere tool for achieving an expedient
goal. This is contrary to human ethics such as those expounded by Immanuel Kant,
which treat humans and humanity as a goal rather than a tool.

The second point relates to the question of why the death penalty is thought to have a
greater shock therapy effect compared to other punishments such as a life sentence.
The reality, as can be seen by comparison with countries which have abolished capital
punishment, is that there is no shock therapy effect.

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Thirdly, opponents of the death penalty reject the assumption that people always
behave rationally. In fact crimes punishable by the death penalty are often crimes of
passion, committed by people who do not understand the complexity of the law. More
than 50 per cent of murders in the USA are committed by people who are not of sound
mind. In such cases the shock therapy effect cannot exist. Nor can it apply to people
who commit murders while they are under the influence of drugs, and are thus
deprived of their rational capacity.

Finally it can be shown that the shock therapy effect of the death penalty is no more
effective than other forms of punishment. Research in 1983 in the USA revealed that
most of the 14 States that have abolished the death penalty have since experienced
declining levels of crime.

From the human rights perspective, I argue that practice of the death penalty is a
clear denial of a fundamental human right, that is, the non-derogable right to life. In
maintaining and imposing the death penalty Indonesia denies its people this right,
even though it has signed the Universal Declaration of Human Rights and ratified the
ICCPR. Both declare clearly that the right to life is a fundamental human right and
States should uphold and protect it.

In the light of above, there are several reasons why the death penalty should be
abolished. According to KontraS (2007), from the perspective of law and political
governance the death penalty should be rejected because:
Firstly, the changed character of Indonesias political and legal reformation (since
1998) is not being displayed by a court system that is independent, impartial, with an
apparatus that is clean of corruption. The flawed court system can increase the
possibility of the death penalty resulting from the wrong legal process. For example,
the cases of the death penalty for Sengkon and Karta in 1980 could be a good lesson
that law, as an institution that has been created by humans, could be wrong in its
practice of upholding justice.
Secondly, from a sociological perspective, there is no scholarly justification for
believing that death penalty reduces the incidence of certain crimes. This means that
the death penalty fails as a determinant shock therapy factor. The United Nations
report on capital punishment and the number of killings between1988-2002 reached

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the conclusion that the death penalty had no effect on crimes involving killing. The
growing number of crimes relating to drugs and terrorism, for example, does not result
from the absence of the death penalty, but is the result of structural problems such as
poverty and a corrupt State apparatus.
Thirdly, maintaining the death penalty also shows a contradiction in the face of legal
policy in Indonesia. One of its arguments is that the death penalty is compatible with
the nations positive law. This is not true because the laws and policies of the
Indonesian state have changed as a result of the reformation era. While on one hand
the death penalty is still inherently rooted in domestic law, on the other hand
reformation of the law emphasizes the importance of the right to life. We can see this
in Article 28I(1) of the Constitution of 1945 (Second Amendment). Here it is important
to note that generally laws in Indonesia were inherited from laws of the Netherlands.
According to Eric Neumayer (2008), the Netherlands abolished capital punishment for
ordinary crimes in 1870 and for all crimes in 1982. Unfortunately, Indonesia still
practices the death penalty.

CONCLUSION

We are currently seeing a positive trend in the world in which the death penalty is no
longer assumed as a necessary deterrent for reducing crime. Amnesty International
and the International Federation for Human Rights (FIDH) reported that most countries
have already abolished the death penalty.

A number of countries such as Iran and China still practice the death penalty, with a
number of executions carried out every year. Indonesia still maintains the application
of the death penalty. To date, Indonesia has not ratified the Second Optional Protocol
to the International Covenant on Civil and Political Rights

All in all, abolishing the death penalty in Indonesia will be a hard task, because
capital punishment has powerful supporters who include (among others) the State
apparatus and bureaucracy, the President, the Attorney General and religious leaders.
In Indonesia human rights organizations such as KontraS and IMPARSIAL are
currently working to abolish the death penalty. We should work with them by
promoting a moratorium on the death penalty in a number of ways, such as raising
public awareness, celebrating Anti-Death Penalty Day on October 10 every year, and

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through advocacy until Indonesia ratifies the Second Optional Protocol of ICCPR. Until
that time, Indonesia will continue to violate the right to life.

BIBLIOGRAPHY

Beth A. Simmons. Mobilizing for Human Rights: International Law in Domestic Politics.
Cambridge University Press, 2001.

Eric Neumayer. Death Penalty Abolition and The ratification of The Second Optional
Protocol. The International Journal of Human Rights. Vol. 12, No. 1, 321,
February 2008.

Eric Neumayer1. Death Penalty: The Political Foundations of the Global Trend
Towards Abolition', Human Rights Review, 9, 2008a, pp. 241-268, Academic
Search Premier, EBSCOhost, viewed 9 April 2012.

Imparsial Team. Inveighing Against Death Penalty in Indonesia. IMPARSIAL, the

Indonesian Human Rights Monitor, 2010.

Junaidi Simun. CATAHU 2011 Vonis Mati Kembali Berulang (Notes of the end of
2011 Death penalty is repeating again), IMPARSIAL, The Indonesian Human
Rights Monitor, 2011.

KontraS team. Praktik Hukuman Mati di Indonesia (Practice of the death penalty in
Indonesia), KontraS, the Commission for the Disappeared and Victims of
Violence, 2007.

http://www.suaramerdeka.com/v1/index.php/read/news/2012/02/11/109207/Janj
i-Hakim-Agung-Artidjo-Beri-Hukuman-Mati-Pada-Koruptor, 2:20 pm: March 2,
2012.

http://www.amnesty.org/en/death-penalty, 2:34pm: March 2, 2012.

Sarah Roberts-Cady. Against Retributive Justifications of the Death Penalty in

JOURNAL of SOCIAL PHILOSOPHY, Vol. 41 No. 2, Summer 2010, 185193.

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