movement
On 30 October 2007, the Constitutional Court of Indonesia read out its verdict on the constitutional review of the Narcotics Law that provides for the death penalty in several articles. The court ruled that capital punishment in cases of drug trafficking is not unconstitutional and does not violate the constitutional right to life.
The Asian Human Rights Commission is deeply disappointed with the judgment, as it does not reflect the human rights vista of the Court. Rationales of their major arguments are deplorable. The AHRC recognizes six main reasons of the Court’s verdict which are not argued aptly. The verdict states that
“The next question raised is then where is the significant difference between the right to life of the perpetrators which are punished by the death penalty and the right to life of those who became victims of such crimes, so one should be absolute…” (pp. 405-406)
This statement made by the Court shows that six of nine judges do not have ample understanding of human rights. Human rights are rights which the individual can demand of the state and they imply an obligation of the state. The same understanding applies to the right to life. Based on the principle of equality, the right to life has to be protected by the state for all persons. Perpetrators of any crimes have to be punished in any case. The Court claims that the right to life of the perpetrator and the victim are in conflict in such a case of punishment. The judgement extends this statement to making an either-or-case out of it, but fails to justify this step. As practiced in many other countries, punishment of perpetrators can be performed without denying the right to life.
The question is not, how to make the right to life of the perpetrator absolute and at the same time the right to life of the victim not absolute. Throughout an effective and impartial judicial system, the state has to ensure that both people’s rights are protected. Without the understanding of the very principle of the right to life and the resulting implication for the implementation by the state, the value of human life cannot be safeguarded. The killing of a person by the state is not necessarily required in order to protect other person’s rights.
“How can the familys agony be healed after the one they loved was lost because of a premeditated murder, or genocide or terrorism?” (pp. 406-407)
The death penalty is ultimately not the answer of this question. If one puts the death penalty as an answer to this question then it would amount to revenge. Firstly, should revenge for the victims be accepted by a judicial system as a compensation for an emotional loss? If punishments are linked to the victims’ feelings, then the measurement becomes arbitrary.
Secondly, is revenge the appropriate way to punish perpetrators? The court’s argument that a crime causes scars in the society and will create a social disharmony might be true. But arguing further, that punishment of the perpetrators restores social harmony is neither proven in the judges’ verdict, nor is it a generally accepted approach. In addition, social disharmony contains not only legal matters, but contains also social aspects. Putting harmony back into society requires social, rather than legal approaches.
In the case, the petitioners argued that the lack of quality in the Indonesian criminal justice system makes serious errors possible and the application of the capital punishment is thus highly questionable. If a death penalty is executed, it would be a very incurable damage, if the alleged perpetrator would later be found not guilty since it is irrevocable. In replying to this argument, the court stated that
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abolishing death penalty, in one area is not making the criminal justice system perfect
” (p. 408)
This rhetorical statement is irrelevant and distorts the chain of arguments in the verdict. The judges mixed up the two issues. While the petitioners are arguing that because of the risk of errors, the death penalty should be abolished, the issue of making a better criminal justice system is another thing to deal with. In fact it is an entirely different subject. The AHRC feels that, in terms of the judge’s consideration, this argument is unacceptable.
The petitioners argued that death penalty does not have the deterrence effect, following which the judges doubted the sufficiency of the argumentative values. As they said that in a country which abolished death penalty, the facts and figures provided does not answer the question of what if at the same time, the death penalty is introduced in that country? Will the rate of crimes which can be punished with death penalty decrease or increase.
Of course, if the death penalty exists in a country the crime rate can still be high or low as the crime rate depends on many other factors, not only on the provision of the death penalty. But far beyond that argument, it is an issue of the criminal justice system. Does one not dare enough to commit a crime, because of the severity of the punishment or because of the probability of the arrest and prosecution of the perpetrator? Cesare Beccaria, the 18th century philosopher and politician answered this question in his treatise On Crimes and Punishment, that it is not the severity of the punishment but the certainty of the punishment that deters persons from committing crimes. This principle has been widely accepted and implemented in many countries.
In Hong Kong for example, the judicial system does not apply as severe punishments as the death penalty, but the situation of law and order in Hong Kong is much better compared to a country like Indonesia. For the offence of drug trafficking, the maximum punishment is life imprisonment and a fine of the amount equivalent to US$650,000. In Indonesia the question is not that of the deterrence effect of the death penalty in order to avoid crimes. The problem that Indonesia has is that of a defective criminal justice system.
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in criminal law, it is very hard to remove the image of retributive punishment as it is already attached with the sanction itself, if we are merely looking from the perspective of the guilty and the victim. But that kind of image will be decreased or even diminish at all if sanction imposed, including, death penalty, seen from perspective to restore the social harmony which is disturbed as a consequences of a criminal act, including a criminal act which can be punished by death penalty.” (pp. 409-410)
Once again, the judges are seeing this matter as a “social disharmony” issue, but if it is a matter of social disharmony, then other social aspects are contributing to it. Allowing the death penalty in order to restore social harmony is not different from the ancient and biblical rule of an eye for an eye. Such manner should not be acceptable in a modern state based on the principles of rule of law. Penalties have to be civilized. The guilty should be given the chance to correct themselves, as the term Correctional Institute implies – not Institute of Vengeance.
When looking closely at the evolution of correctional services in the criminal justice system in history, it is clear that modern knowledge of the advantage of re-socialization over punishment is unavoidably the foundation of development of correctional services. Centuries ago, states tortured the guilty in public places as a form of deterring punishment. Criminals were even hung in public. It was a method to frighten people in order to deter them from committing crimes. Later, punishments started to take place hidden from the public inside correctional institutions but with the same methods.
The difference is the recognition of the inalienable dignity of persons or even from the conviction that people are to be respected at any moment, including the moment of their death. At later development stages, correctional procedures became progressively civilized. Scientifically speaking, it is neither a retaliatory approach, nor a preventive approach, but instead an approach of betterment.
If medieval vengeance is still applied, then how can human values and dignity which are inherent to human beings be respected? Respect for and implementation of human rights are the preconditions of dignified human existence and lasting peace. A continued application of vengeance creates a continued culture of vengeance in the society, which the state is mandated to overcome. Does the Indonesian state want the people to become violent with each other in the manner of vengeance?
The Asian Human Rights Commission once again calls upon the Indonesian government to fully respect the value and dignity of human rights, in particular the right to life. The death penalty, without a shred of doubt, is a breach of the right to life. Only six out of the nine Constitutional Court judges, saw it necessary to limit the right to life, based on article 28J of the Constitution. However, the article is a regulation, and not a limitation of rights. The necessity of a limitation of the right to life is hence neither proven, nor do examples of other countries suggest the necessity of death penalty. In fact, the 133 countries that have already progressed to the stage of abolishing capital punishment show much better records in terms of crime rates and social harmony. In this context, the Courts’ argument seems not logically deducted and is therefore highly unsatisfying, given the severity of the issue.
The Indonesian government should abolish death penalty from its legal system on the basis of aforementioned reasons. The treatment that the state applies to its people sets the standard in which society members will treat each other. The prevention of crime does not depend on the harshness of the punishment but on the certainty that any crime will be punished after a fair trial.
