New hope for abolition of the death penalty?

Author

Ricky Gunawan is a human rights lawyer and Director of LBH Masyarakat (Community Legal Aid Institute). LBH Masyarakat is a frontline human rights organisation that provide free legal services for people facing the death penalty or execution.

Author

Raynov Tumorang Pamintori is a research fellow at Reprieve. Reprieve is a London-based international legal charity that provides free legal support to some of the world’s most vulnerable people, including those who are facing the death penalty and execution.

Activists held a candlelight vigil in front of the Presidential Palace before the last round of executions in July 2016. Photo by LBH Masyarakat.

 

Amnesty International recently released its 2016 report on the global state of the death penalty. It revealed that while the number of global executions dropped in 2016, there was an increase in the number of new death sentences. This also occurred in Indonesia, a country that was once labelled the “most prolific executioner” in Southeast Asia by United Nations (UN) High Commissioner for Human Rights Zeid Ra’ad Al Hussein.

 

Indonesia carried out four executions in 2016, while in 2015, it executed 14 prisoners. In fact, 14 people were listed for execution in 2016 but a last minute temporary reprieve was given to 10 of them. Amnesty reported that in 2015 there were at least 46 new death sentences in Indonesia, and in 2016 the figure increased to at least 60.

 

In Indonesia, capital punishment is mostly imposed for premeditated murder, terrorism, and drug offences. The latter has become the primary justification for the escalation in executions since President Joko Widodo (“Jokowi”) took office in late 2014. Given his campaign commitment to strengthening human rights protections and the fact that he had no connection to past human rights abuses, there were high hopes for Jokowi in terms of human rights. Many were therefore shocked to see him initiate a new wave of executions. It is worth looking back to his early days as president to understand his blind belief in the death penalty.

 

Jokowi’s first 100 days were rough. His choice of ministers was heavily criticised. At the same time, the Corruption Eradication Commission (KPK) had another fierce row with the National Police. The president looked for something to maintain his popularity and prove his toughness. He needed a scapegoat to swing the momentum back in his favour. Drug crime was the answer.

 

In December 2014, the president declared that Indonesia was facing a “drug emergency”, and quoted faulty data from the National Narcotics Agency (BNN) suggesting that 40-50 people die every day because of drugs. This became a favourite mantra of his administration. Jokowi also said he would reject all petitions for clemency from the 64 drug offenders on death row. The first round of executions quickly followed in January 2015, when six drug offenders were put to death. This was one of the few initiatives that attracted praise during Jokowi’s first 100 days.

 

From then on, the war on drugs picked up pace. Eight drug offenders were executed in April 2015, and four more in July 2016. That set a record of 18 executions in 18 months – something that had not occurred since the fall of Soeharto in 1998.

 

As Jokowi approaches three years on the job, the narrative that execution is an effective deterrence against drug crime – which it is not – has broad acceptance. This has seemingly influenced the spike in death sentences delivered by the courts in 2016, as reported by Amnesty. When public discourse is so in favour of punitive drug policies, it is no surprise that law enforcement officials would seek to capitalise on the situation to gain social reward.

 

Given these circumstances, the idea that Indonesia would one day abolish the death penalty might seem unthinkable. But despite Jokowi’s stubbornness to retain the death penalty for drug offenders, there have been developments in Indonesia’s legal and political landscape over the past few months indicating that a moratorium in the use of the death penalty is possible, even if it remains on the books.

 

The reprieve granted to the 10 convicts on death row in July 2016 followed massive public campaigns that exposed the unfair trials many of them had received. This suggested that the government was at least willing to listen to civil society demands. But to cancel all the executions would have embarrassed the government. It appeared that the government was prepared to sacrifice four death row prisoners to appease supporters of the policy.

 

Second, Jokowi hinted that he was open to alternatives when interviewed by foreign journalists from Australia and France. His statements may have been purely political, because they were made ahead of diplomatic meetings with the leaders of these two countries. But Jokowi and the BNN recently admitted publicly that the death penalty had failed to lower drug offences (at the same time maintaining that it would continue to be used). These statements from Jokowi and the BNN are promising, given their hard-line stance in the past. They may reflect Jokowi’s tendency to correct his mistakes.

 

Third, Attorney General Prasetyo has said that Indonesia will postpone executions because it is bidding for a non-permanent seat on the UN Security Council. This is a sign that Indonesia appears to be paying attention to its profile and how its human rights record is being scrutinised by the international community. Yet it is important to remain cautious in responding to such statements, as Prasetyo has continued to suggest that it is just a matter of time before executions are resumed.

 

Fourth, the draft revised Criminal Code submitted to the House of Representatives (DPR) by the government (via the Ministry of Justice and Human Rights) includes the death penalty as an alternative sentence, rather than a primary punishment. This draft has not been approved by the DPR but it sends a signal that the Jokowi administration is prepared to limit the use of the death penalty. In the long run, this provision offers a pathway to abolition, or a moratorium, at least.

 

There are encouraging signs. But this situation is fragile and expectations must be managed. Most importantly, civil society must consolidate and continue to pressure the government to maintain this momentum.

 

First, civil society must urge the government to establish an independent team to review death penalty cases. This will prove that in almost all capital punishment cases, there are elements of unfairness. Indonesia cannot afford to take innocent lives.

 

Second, civil society needs to undertake studies on the deterrence effect – or lack of it – of applying the death penalty in drugs cases. This will demonstrate that Jokowi can be tough on drugs without resorting to the death penalty and that the drug policy should be more evidence-based.

 

Third, the government must develop stricter safeguards in the criminal justice system to prevent miscarriages of justice. Indonesia’s criminal justice system is broken and must be fixed. This can be done in cooperation with other countries that have more experience in strengthening their justice systems.

 

Fourth, civil society must oversee the process of revising the Criminal Code to ensure that limitations on the use of the death penalty are protected in the legislative process.

 

Government oscillation on the death penalty can be viewed with cynicism. But the abolition movement should treat the government’s indecisiveness as an opportunity to show that drug crime can and must be resolved without the use of the death penalty – and that an Indonesia free of the death penalty is achievable.