Missing history? Jimly Asshiddiqie on the death penalty in Indonesia

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Former Constitutional Court Chief Justice Professor Jimly Asshiddiqie is in Melbourne to present the Distinguished Asian Lecture on “Islam, Democracy and the Future of the Death Penalty” at the Melbourne Law School on 11 August. Jimly chaired the Constitutional Court in 2007, when it ruled that the death penalty did not conflict with the right to life in the Indonesian Constitution. He has since been one of the most prominent Indonesian voices advocating for the abolition of the death penalty in the country. Indonesia at Melbourne spoke to Jimly about the future of the death penalty.

 

The Qur’an and hadith explicitly allow for the death penalty. Do you think this makes its abolition a more difficult prospect in Indonesia?
It is a problem for all Muslim-majority countries. We always face this religious context in the debate over the death penalty. Many Indonesians think that it is sinful to abolish the death penalty. But Indonesian criminal law does not come from any Islamic legal tradition whatsoever. The death penalty in Indonesian law comes directly from the Dutch and European legal traditions.

 

You have also said that Islamic law could play a role in abolition of the death penalty in Indonesia.
In the western tradition, the crime and the penalty are separate, but in the Islamic tradition they are integrated. In the Islamic tradition we have two kinds of penalties based on two philosophical foundations: hudud wa ta’zir and qisas wa diyat. In qisas wa diyat – retaliation and compensation – retaliation cannot be separated from compensation, it should be understood as one package. Sometimes qisas is misunderstood, because retaliation looks very cruel. But in more positive way, retaliation should be seen as a balancing policy towards victims. This is what I would like to introduce to modern legal scholars. Missing in modern criminal law is the interests of the victim and the family of the victim (if the victim is murdered). Modern criminal law is only concerned with the relationship between the citizen and the state. If a citizen violates state law, then the state takes the necessary action to impose a penalty: prison, or sometimes compensation in the form of fines. But with fines, the money comes from the perpetrator and goes to the state, not to the victim.

 

Qisas is available for two types of crime – murder and bodily injury. But at the same time, if the accused apologises and the victim forgives him or her, then the penalty can be commuted and the qisas changes to compensation. It is a balanced system of penalty. I would like to introduce the basic philosophy of qisas to discussions about the death penalty. This can provide us with a step on the way to abolishing the death penalty. I propose that the death penalty be limited only to murder, not to other crimes, using the principle of qisas. The perpetrator will usually apologise, and the family will often offer forgiveness, so the death penalty because of murder will likely never happen in practice. If we did this, we could also introduce the philosophy of reconciliation to wider society, through qisas. For those Muslim countries that are open to democracy but still have some difficulty with religious interpretations of Islamic teaching, this can be a step toward abolition.

 

There is a lot of public support for the death penalty, and a strong belief that it will act as a deterrent.
Yes, there is this belief that the death penalty will be a solution, but the solution is only temporary. Support for the death penalty is a reflection of public anger against crime. Now the public want more and more crimes to be punished with the death penalty, for example, corruption. People have become so angry with corruption, so they see the death penalty as the answer. This is an emotional response, however, and law makers and policy makers must not exploit this public emotion for their own short-term interests. This is our problem. We have to manage the future of the nation using a more rational and humanistic approach, not using public anger for short-term benefits. Indonesia, as the largest Muslim society, as the third largest democracy, should take a pioneering position by introducing an alternative approach.

 

How hard will this be when the two bigger democracies (India and the US) still allow for the death penalty?
It will be very difficult, because most people are happy with the current policy of execution – it channels public anger about narcotics. Although more US states have now abolished the death penalty, many still use it. It is difficult when we want to promote the idea of abolition, and critics say: “Oh, you are more American than even America!” This has made me conclude that perhaps America should go first.

 

In 2007, as chief justice of the Constitutional Court, you voted with the majority to rule that the death penalty was not inconsistent with the constitution. You have since said you regretted the decision.
I don’t regret voting with the majority, I regret the outcome. The result was five against four to retain the death penalty. Because I could not convince one of the four, we missed history, missed the chance to become the first and largest Muslim country in the world to abolish the death penalty. That’s what I regret. I don’t regret siding with the majority.

 

There are people who misunderstand my statement; as if I regret that I did not side with the minority. But that’s not the point. I had to make that decision. During that time we had so many controversial cases and so many dissenting opinions. In Indonesia, dissenting opinions were largely unknown before the Constitutional Court. In almost every ruling in the first and second years of the court there was a dissenting opinion, it was too many. There was a lot of media attention on those judges who wrote dissenting opinions. This was not right. If I did that as chief justice, it could become a major problem for the legitimacy of the court’s ruling. That’s why I decided not to write a dissenting opinion, even though, in substance, I was with the minority. My regret is that I could not convince just one person, and so I missed history. Not the history of Indonesia but the history of the Muslim people, the history of the world.

 

The draft law on the new Criminal Code includes your recommendations from this decision.
The new Criminal Code is a setback in terms of the increased number of crimes covered by the death penalty. But while it is a setback quantitatively, when we consider the sentencing procedures for the death penalty, the draft law follows our recommendations in the Constitutional Court ruling of 2007. There are four conditions set forth in the draft Criminal Code: the death penalty should no longer been seen as a primary punishment but as a specific and alternative punishment; there should be a 10-year probation period, after which the sentence should be commuted to imprisonment; it should not be imposed on minors; and it should be suspended in cases of convicted pregnant women or those with mental illness. If these conditions are enacted in the new Criminal Code, the policy will become very strong. And of course judges will have to consider these conditions in a very serious way in implementing the death penalty.

 

Do you think Australia has a role to play in helping Indonesia advocate for an end to the death penalty?
Australia does not need to help Indonesia. This is a judicial process, it must be independent. I don’t think Australian aid is important. I would prefer that Australia direct its assistance toward civil society empowerment and strengthening universities in Indonesia. I have taken this position for a long time. Let the government do the planning for further reform. Other countries can help Indonesia through education, exchange programs, and empowering civil society.

 

 

Jimly Asshiddiqie will present the Distinguished Asian Lecture on “Islam, Democracy, and the Future of the Death Penalty” at Melbourne Law School on 11 August.

 

 

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