Death Penalty and Rights of Inmates on The under Indonesia Criminal Justice System

Zenny Rezania Dewantary [email protected] Lecturer at law study programme, President University

Abstract Indonesia has executed approximately 84 inmates in the death row since 1998. Indonesia actively performed death execution until 2016. After 2016, although no execution has been done, there was a death penalty dropped in 2018. In relation to that, death penalty is stipulated in Indonesia Criminal Code (KUHP and other penal codes outside KUHP) and this makes Indonesia as a retentionist country. Death penalty delivers a death row. Death row is a prolonged death execution, which usualy measured in years. This situation caused a double-punishment, where the convicted must serve in an isolation room in , while waiting to be executed. This waiting period seems unavoidable due to some factors. Using normative-empirical research method, this research aims to bring the fact that in Indonesia, there are several factors that have been causing a death row. In this research, this situation is tested using state responsibility principle and some international conventions Indonesia has ratified. The absence of provision related to maximum death execution time after verdict is binding without further objections, together with the hierarchical system of court trial in Indonesia is the cause factor for the prolonged death execution. To encounter this situation The Government of Indonesia is proposed to (1) for short term goal, regulate strictly about the implementation of death execution; (2) for long term goal, to abolish from the justice system. Keywords: death penalty, death row, legal uncertainty, human rights, Indonesian Criminal Justice System.

Abstrak Sejak tahun 1988 Indonesia telah melakukan eksekusi mati 84 kali. Eksekusi mati aktif dilakukan sampai dengan 2016. Sesudah 2016, walau belum dilakukan eksekusi sekalipun, putusan hukuman mati tetap dijatuhkan. Sanksi pidana mati sampai saat ini masih tercantum dalam sistem hukum Indonesia dan ini berarti Indonesia masih menjadi Negara retensionis. Pidana mati menghasilkan antrian eksekusi. Antrian eksekusi mati adalah masa tunggu sebelum eksekusi dilakukan dan biasanya terjadi dalam hitungan tahun. Hal ini menciptakan hukuman ganda, di mana terpidana juga harus menjalani pidana penjara sambil mereka menunggu dieksekusi mati. Menggunakan metode normatif-empiris, penelitian ini bertujuan untuk mengemukakan bahwa di Indonesia ada beberapa factor yang menyebabkan antrian eksekusi mati. Dengan menggunakan acuan tanggung jawab Negara dan konvensi internasional yang diratifikasi Indonesia, ketiadaan aturan mengenai batas maksimal masa tunggu atas eksekusi mati, bersama dengan sistem peradilan yang hirarkis berkontribusi sebagai factor penyebab antrian eksekusi mati. Untuk penanggulangan, Pemerintah Indonesia diharapkan untuk (1) Untuk jangka pendek, buat aturan yang lebih tegas dan berorientasi keadilan bagi terpidana mati;(2) Untuk jangka panjang, menghapuskan pidana mati seutuhnya. Kata Kunci: pidana mati, antrian eksekusi mati, ketidakpastian hukum, hak asasi manusia, sisem hukum pidana indonesia

1. Introduction and the colonialization of The Dutch. The Discussions on the Indonesian Dutch Legal System took role in the Criminal Justice System (ICJS) are always development of Indonesian Legal System. intertwined with the history of Indonesia Indonesia was colonialized by Dutch for

60 around 3,5 centuries (at that period, Death penalty serves as the heaviest Indonesia was named The Netherlandsch- punishment among other main sanction.49 Indie). The Dutch applied their legal system Further, the Code regulates several articles through out Netherlandsch-Indie through (Pasal) of which provide death Concordantie Beginsel.47 penalty as sanction. For example, in Book In August 17th, 1945, Indonesia Two, article 340 mentions that a first degree declared independency and claimed itself murder is punishable with death execution as a unity. As a newly-declared independent or imprisonment for maximum 20 (twenty) country, Indonesia had many challenges in years. Other example is article 104 about term of organizing a state. Legal system homicide that is addressed to a President or was also an issue, considering that for Vice President, article 111 (2) about centuries Indonesia was so used in The engaging with other countries to start a war Dutch legal system. Had no original legal with Indonesia, article 365 about armed system, Indonesia then re-implemented The robbery that resulted to a death of victim, Dutch legal system by translating the etc. provisions into Bahasa Indonesia Outside The Criminal Code, there (Indonesian language). This procedure was are several laws which impose death also including the criminal justice system. penalty, such as: In Indonesian criminal justice 1. Emergency law 5012/1951 of system, death penalty is written on the Armor, Ammo, and Explosive Indonesian Criminal Code (Kitab Undang- Devices. Undang Hukum Pidana/KUHP)48 and also 2. Law 35/2009 of Narcotics. in several laws outside the penal code 3. Law 31/1999 of Corruption which was established later. Eradication

47 Concordantie Beginsel or Concordantie Principle as a type of punishment and article 340 of first stated that European Law (Dutch Law) to be degree murder punishable with maximum penalty implemented for all Europeans in Netherlands- by death execution. The Netherlands itself, on the Indie. This beginsel started to be implemented since other hand, has abolished death penalty for all the beginning of The Dutch colonialization. It was crimes since 1982 (see written in article 131 Indische Staatsregeling (IS). https://deathpenaltyinfo.org/abolitionist-and- 48 The Criminal Code was based on The Dutch’s retentionist-countries?scid=30&did=140) Wetboek Van Strafrechts voor Netherlandsch-Indie 49 Main sanction here is to be distinguished with (WvS-NI) applied throughout Netherlandsch-Indie alternative sanction. (Later known as Indonesia) in January 1st, 1918 50 Undang-Undang similar with Law regulates during The Dutch Colonialism in Netherlandsch- nation-wide. Darurat means emergency. This law Indie. Later after independent, Indonesia adopted it was established in a situation when Indonesia was in into national law regarding criminal matters. The an urgent need to have such law, so the law was code remains legit until present time with minor created without a normal procedure of legislation- amendments. It has provisions about death penalty, making process. e.g., article 10 mentions death execution by 61

4. Law 15/2003 of Penetapan of Death Sentence). The first mentioned Peraturan Pemerintah Pengganti regulation also functions as an partial Undang-Undang Republik amendment of Indonesian Penal Code, Indonesia Nomor 1 Tahun 2002 related to the method of death penalty. The tentang Pemberantasan Tindak Indonesian Penal Code was adopted Pidana Terorisme Menjadi directly from The Dutch and it regulates Undang-Undang51 death penalty method is by hanging. In penpres RI 2/1964, the method is changed These regulations are also followed into a dead shot. with the procedural regulations which are In regulations scheme, other than regulating the further technical some positive criminal laws that are still requirements for death execution, such as actively implemented, Indonesia also has Penetapan Presiden RI Nomor 2 Tahun the Draft of Penal Code (Rancangan Kitab 1964 tentang Tata Cara Pelaksanaan Undang-Undang Hukum Pidana) that has Pidana Mati yang Dijatuhkan oleh been renewed for 14 times since the first Pengadilan di Lingkungan Peradilan time it was issued, in 1964. This latest Umum dan Militer (Presidential Decree version of draft is still putting death penalty Number 2 Year 1964 regarding Procedure as one of the alternative punishment of Death Sentence in a General Court and provided, along with the main punishments. Military Court Competency. There is also In the academic writing of The Draft, it is regulation established by the Indonesian written, National Police as a code of conduct for all Pidana mati secara alternatif police officers within Indonesian dijatuhkan sebagai upaya terakhir untuk sovereignty, namely Peraturan Kepala mengayomi masyarakat. (Death Sentence is Kepolisian Negara Republik Indonesia alternatively dropped as a last resort to Nomor 12 Tahun 2010 tentang Tata Cara protect society ).52 Pelaksanaan Pidana Mati (Chief of Indonesian National Police Regulation Meanwhile, from the same Number 12 Year 2010 regarding Procedure manuscript, it is known that The Draft has

51 This law is an act in which contain a declaration 52Academic writing accessed from to put Governmental-Regulation-as-a-Replacement- http://dpr.go.id/dokakd/dokumen/K3-26- of-an-Act Number 1 Year 2002 regarding Terrorism 2ea83388ece0ae0d13b3977bebb049c1.pdf page Eradication into a self-standing act. All provisions 189. Academic writing is a manuscript containing about terrorism can be found on the later mentioned. the preliminary research and discussion result before As in law number 15/2003 only contains drafting legislation. declaration. 62

16 articles in total that use death penalty as mban g 53 sanction provided. Distri These regulations are the positive ct Court) laws which provide legitimacy of the Penga implementation of death penalty. Since dilan Neger 1998 estimatedly Indonesia has performed i 84 death execution. Indonesia actively Sekay performed death execution until 2016. u, Musi After 2016, although no execution has been Bany Preme Jurit bin uasin, 17 done, there was a death penalty dropped in ditated April Abdullah/M/ Suma May Murder 1998 2018 and is still waiting for some procedure Indonesia tera 2013 (1997) until recently. Selat an Taking example from the execution (Seka list in a period of 2013-2016, it can be seen yu Distri the year the verdict dropped and the year ct when the execution is done: Court ) ye Name of Cour Date Date Peng ar Convicted t of of adila Ver Exec n dict ution Neger i Penga Sekay dilan u, Neger Musi i Preme Narcoti Bany Muhamad Tange 28 17 Ibrahim bin ditated 17 cs uasin, April Abdul rang Nove Nove Ujang/M/In Murde May (26 Suma 1998 Hafeez/M/P (Tang mber mber donesian r 2013 Juni tera akistan erang 2001 2013 (1997) 2001) Selat 20 Distri an 13 ct (Seka Court yu ) Distri Penga Suryadi Swa ct dilan Buana alias Court Neger 17 Kumis alias Murder ) i 1992 May Dodi bin (1991) Adami Narcoti Penga 15 Palem 2013 Sukarno/M/I Wilson bin cs dilan 2004 Marc bang ndonesia Adam alias (2003) Neger h (Pale

53 See Tabel 7 on page 145 of the academic writing. 63

Abu i 2013 sauba 2004) i 2004 2015 /M/Nigeria Tange Mamadou/ Tange rang M/Nigeria rang (Tang (Tang erang erang Disric Distri t ct Court Court ) ) Peng Penga adila dilan Narcoti n Neger Ang Kim Soei cs/boss Nege i alias Kim Ho of an ri Tange 13 18 alias Ance ecstass Rani Narcot Tang 22 rang Janua Janua 18 Taher alias y Andriani ics (12 eran Aug (Tang ry ry Janu Tommy wareho alias Melisa Januar g ust eang 2003 2015 ary Wijaya /M/ use (4 Aprilia/F/In i (Tan 200 Distri 2015 Dutch April donesian 2000) gera 0 ct 2002) ng Court Distri ) ct Penga Cour dilan t) Neger Penga i dilan Boyol Narcoti Tinggi ali, Tran Thi cs 22 18 Narcoti Jawa 15 18 Jawa 20 Namaona Bich smuggl Nove Janua cs (15 Barat Octob Janua Tenga 15 Dennis/M/M Hanh/M/Vie ing (11 mber ry April (West er ry h alawi tnam Juni 2012 2015 2001) 2001 2015 (Boyo 2011) High lali Court Distri ) ct Penga Court dilan ) Neger Penga i dilan Marco Narcoti Tangg 18 Neger Archer cs 8 erang Janua i Cardoso (Agust June (Tang ry Denp 14 Moreira/ us 2004 Myuran 29 erang 2015 20 Narcoti asar Febr Brazil 2003) Sukumaran/ April Distri 15 cs (Denp uary M/ 2015 ct asar 2006 Court Disric ) t Daniel Narcoti Penga 22 18 Court Enemuo alias cs (4 dilan Septe Janua ) Diarras Januari Neger mber ry Andrew Narcoti Penga 14 29

64

Chan/M/ cs dilan Febr April /Brazil coccain Neger uary 2015 Australia Neger uary 2015 e i 2005 i 2006 Tange Denp rang asar (Tang (Denp erang asar Distri Distri ct ct Court Court ) ) Penga Penga dilan dilan Neger Neger i i Sylvester Tange 1 29 Jakart Obiekwe Narcoti rang Septe April a Nwolise/M/ cs (Tang mber 2015 Martin Selata Nigeria erang 2004 2 29 Anderson Narcoti n Dstric June April alias Bel/ cs (Sout t 2004 2015 Ghana h Court Jakart ) a Penga Distri dilan ct Neger Court i ) Tange 13 Okwudili 29 Penga Narcoti rang Augu Ayotanze/M April dilan cs (Tang st / Nigeria 2015 Tingg erang 2001 Masagus i Disric Zainal Abidin Palem t 3 bin Masagus Narcoti bang 29 Court Dece Mahmud cs (Pale April ) mber Badaruddin/ mban 2015 Penga 2001 M/Indonesia g dilan Hugh Neger Court i ) Jakart a Freddy 29 Mahk 20 Narcoti Barat Budiman/M/ July amah 16 cs (West Raheem 16 Indonesian 2016 Agung 29 Jakart Agbaje Narkoti Nove (Supr April a 15 Salami/M/R cs mber eme 2015 Distri July ep. Cordova 1999 Court ct 2013 ) Court Rodrigo Smuggl Penga 7 29 ) Gularte/ M ed 6 kg dilan Febr April Michael Narcoti Penga 23 29

65

Titus cs dilan Octo July Table 1. List of Execution in 2013-2016 period in Igweh/M/Ni Neger ber 2016 Indonesia. (data from imparsial.org team) geria i 2003 Tange

rang (Tang If data is including the list of erang execution since 1962 until 2018, from 84 Distri ct total executions, 48 were filed so the Court information of death row period is known. ) Penga The remaining 46 happened before dilan Indonesian Reform (before 1998)54 and the Neger i information is either classified or Jakart unrecorded. a Seck Selata 29 The death row period is as follows: Narcoti Osmane/M/S n July cs 25 enegal (Sout 2016 h Jakart 21 20 a July Disric 2004 t Court) 15 Penga dilan Neger 10 i Jakart Humphrey a 5 Ejike alias Pusat 29 Narcoti Doktor alias (Cent July cs Koko/M/Nig ral 2016 0 <5 years <10 years <15 years <20 years eria Jakart a 7 Chart 1. The death period following death sentence Distri April before finally executed (1983-2015) ct 2004

Court )

54 Indonesian 1998 reformation is when President be transferred to the regions, away from the center was impeached on May 1998. It marked the (decentralization). The basis of this transition was beginning of a new period in Indonesian history. formulated in a law which passed parliament in 1999 After being ruled by Suharto's authoritarian New and called for the transfer of administrative powers Order regime for over three decades, Indonesia from the central government to the regional districts. embarked for a new phase called Reformation See https://www.indonesia- (Reformasi in Indonesian). It was envisaged to be investments.com/culture/politics/reformation/item1 the starting period of a democracy with open and 81? (accessed on August 21st 2018) for more. liberal politics in which extensive autonomy would 66

The tabel shows that the This is the situation where death penalty implementation of the death penalty was also delivers double-punishment. Many never done in an immediate time. Small offenders are kept on a death row for a long number of the convicted was finally time. The ripple effect of this system is executed after less than 5 (five) years multiple ways. It is sickening for the period, but the highest number of duration inmates both physically and mentally and is 10-14 years. There is similarity with this is not in line with the restorative justice , in US the average year of that Indonesia is applying. It is burdening death row is 10 (ten) years55. That is the the Indonesian prison system where period that the convicted went through are in overcapacity and corroding budget behind bars, before they were executed. too to keep death convicts for years. And in Taking example of Myuran principles, it is going against the State Sukumaran, he was executed in 2015, 9 Responsibility principles towards (nine) years after being convicted in 2006. Universal Declaration of Human Rights He went through some procedure set by (UDHR) and Other Cruel, Inhuman or Indonesian Justice System to fight against Degrading Treatment or Punishment (the the verdict.56 His appeal was dismissed by “Torture Convention”). The specific the high court in 2006, then in 2011, he filed analysis on this subject is delivered on next for cassatie to The Supreme Court and only sub-chapter. got the affirmation of the death penalty by The Indonesian Criminal Justice The Supreme Court. He, then, plead for System provides legal basis of criminal clemency to President and the court procedure in general and of death plea got rejected in 2014. Sukumaran was penalty in particular, where those held imprisoned during the process. He was provisions are trying to make the death put in a maximum security wing before penalty less as an ordeal, but at the same finally executed in early 2015.57 time, the prolonged procedure also delivers That situation shows the condition double punishment in a form of death row. where a death convicts cannot avoid to also That situation has brought up the be imprisoned during the court trial process. fight between the pros and the cons of death

55 See https://deathpenaltyinfo.org/time-death-row judicial review (peninjauan kembali), cassatie for accessed on August 4th 2018. law, and presidential clemency. 56 Indonesia implements a hierarchial court system 57See where it has three level: District Court, High Court, https://www.cnnindonesia.com/nasional/20150428 and Supreme Court. Outside this hierarchy, there are 185400-12-49829/kronologi-kasus-narkotik-yang- several attempt that can be proposed, those are: menjerat-duo-bali-nine accessed on August 4th 2018. 67 penalty. Indonesia is obviously still in a  Protocol No. 6 to the European corridor of enforcing death penalty both in Convention on Human Rights its positive criminal justice system and in  The Protocol to the American the draft of the new penal code, while Convention on Human Rights to according to Amnesty International, 106 Abolish the Death Penalty. countries have abolished death penalty The European Convention on Human completely. This situation is then narrowed Rights (Protocol No. 13) bans the use of to a formulation of problem: capital punishment at all times, even during Death Execution related to Death Row war. and The Rights of Death Row Convicts in Indonesian Criminal Justice System 1.1. International Covenant on Civil and Political Rights (ICCPR) The analysis towards death execution in Indonesia ratified some relation with death row and the rights of the international instruments related to human convicted can be departed from some rights, including International Covenant on international instruments. This is to be Civil and Political Rights (ICCPR) on 28 contested with the national atmosphere of October 2005 and it was followed up with death penalty policies, regulations, and the establishment of Law Number 12 Year implementations. 2005 regarding the Ratification of The death penalty breaches two International Covenant On Civil And essential human rights: the right to life and Political Rights59 (Undang-Undang the right to live free from torture. Both Republik Indonesia Nomor 12 Tahun 2005 rights are protected under the Universal Tentang Pengesahan Kovenan Declaration of Human Rights, adopted by Internasional Tentang Hak-Hak Sipil Dan the UN in 1948. The following international Politik). This Covenant was also attributed laws explicitly ban use of the death penalty, with two optional protocols. The first except during times of war:58 protocol is to enable the Human Rights  The Second Optional Protocol to Committee set up in part IV of the Covenant the International Covenant on Civil (hereinafter referred to as the Committee) and Political Rights to receive and consider, as provided in the

58 https://www.amnesty.org/en/what-we-do/death- %20999/volume-999-i-14668-english.pdf accessed penalty/ accessed on 9 May 2018, 4 pm on October 8th, 2018. 59 Documents can be downloaded here https://treaties.un.org/doc/publication/unts/volume 68 present Protocol, communications from under international law, and the movement individuals claiming to be victims of of states more generally, is towards a violations of any of the rights set forth in the progressive abolition of the death penalty.63 Covenant.60 Second Optional Protocol to Indonesia towards its national law the International Covenant on Civil and implementation is still pursuant in retaining Political Rights, Aiming at the Abolition of it as a form of criminal punishment. the Death Penalty, opened for signature 15 Although, the type of a crime that is December 1989, 1642 UNTS 414 (entered punishable by law with death penalty is into force 11 July 1991). limited. For example, in Book Two, article The ratification of ICCPR by 340 mentions that a first degree murder is Indonesia does not automatically be punishable with death execution or ratification for the two protocols. Indonesia imprisonment for maximum 20 (twenty) did not ratify the two protocols by which it years. Other example is article 104 about is under no obligation to implement the homicide that is addressed to a President or provisions therein. Vice President, article 111 (2) about Meanwhile, states ratified the engaging with other countries to start a war second protocol in pursuant of abolishing with Indonesia, article 365 about armed death penalty. Abolitionist states indicate robbery that resulted to a death of victim, their recognition of this through signing and etc. ratifying the Second Optional Protocol to Outside The Criminal Code, there the International Covenant on Civil and are several laws which impose death Political Rights61 This protocol not only penalty, such as: pledges a total elimination of the death 1. Undang-Undang Darurat 12/1951 penalty domestically, but also includes a of Armor, Ammo, and Explosive commitment to work towards its global Devices. abolition.62 Ultimately the requirement 2. Law 35/2009 of Narcotics.

60 See 63 Christof Heyns, Report of the Special Rapporteur https://www.ohchr.org/en/professionalinterest/page on Extrajudicial, Summary or Arbitrary Executions, s/opccpr1.aspx accesses on October 8th, 2018. GA Res 67/168, UN GAOR, 69th sess, Agenda Item 61 Conall Mallory, Abolitionists at Home and 69(b), UN Doc A/69/265 (6 August 2014) as quoted Abroad: A Right to Consular Assistance and the in Conall Mallory, Abolitionists at Home and Death Penalty, (Melbourne Jounal of International Abroad: A Right to Consular Assistance and the Law. Vol 17). (online). Accessed on Death Penalty, (Melbourne Jounal of International https://law.unimelb.edu.au/__data/assets/pdf_file/0 Law. Vol 17). (online). Accessed on 004/2039566/03_Mallory_171.pdf October 8th, https://law.unimelb.edu.au/__data/assets/pdf_file/0 2018. 004/2039566/03_Mallory_171.pdf October 8th, 62 Ibid. 2018. 69

3. Law 31/1999 of Corruption Covenant and to the Convention on the Eradication Prevention and Punishment of the Crime of 4. Law 15/2003 of Penetapan Genocide. This penalty can only be carried Peraturan Pemerintah Pengganti out pursuant to a final judgement rendered Undang-Undang Republik by a competent court. Indonesia Nomor 1 Tahun 2002 tentang Pemberantasan Tindak Later on it was determined on what Pidana Terorisme Menjadi is categorized as most serious crimes. The Undang-Undang64 definition of ‘most serious crimes’ has now been reduced to only cover intentional This leads to the double standard of killing through murder.66 Importantly for death penalty that Indonesia has. Paeri al- the context of the current discussion, the Feri, 44, the brother of the death penalty use of the death penalty for drug offences is convict, Satinah Binti Jumadi Ahmad, 41 – not permissible under international law.67 an Indonesian domestic worker sentenced But then, referring to the Table of list of to death by beheading for robbing and execution in 2013-2016 periods in murdering her employer’s wife, stated that Indonesia, the most number of executions is “On the one hand, Indonesia is begging for for narcotics offenses. This raised a its citizens to escape the death penalty, question on the category of narcotics meanwhile Indonesia’s firing squad offenses in Indonesia and if it is not executes inmates, it’s not fair,” said al- permissible under international law, yet Feri.65 Indonesia still executed many narcotics Article 6(2) of the ICCPR states: offenders. In countries which have not abolished the Indonesia’s concept of most serious death penalty, sentence of death may be crime is correlating to the concept of extra- imposed only for the most serious crimes in ordinary crime. No legal definition of the accordance with the law in force at the time concept of extraordinary crime in of the commission of the crime and not legislations or Constitutional Court contrary to the provisions of the present verdicts. The definitions are provided by

64 See p. 1-2 standard-says-brother-of-spared-maid accessed on 65Kate Lamb, “: Indonesia has death October 8th, 2018. penalty double standard, says brother of spared 66 Christof Heyns, Report of the Special Rapporteur maid” The Guardian, (16 February 2015) (online) on Extrajudicial, Summary or Arbitrary Executions. https://www.theguardian.com/world/2015/feb/16/b 67 Ibid. ali-nine-indonesia-has-death-penalty-double- 70 scholars based on types of the extraordinary abuse offenses, and child sexual abuse crime. Using gross violation of human right offenses because of several reasons.70 as references, Muladi has defined the concept of extraordinary crime as the crime 1.2. Convention against Torture and that in criminology and victimology other Cruel, Inhuman or perfectives potentially to harm the interests Degrading Treatment or of various dimensions, from the security Punishment (CAT) order, systematic or organized, threatening Convention against Torture and political stability, future development, and other Cruel, Inhuman or Degrading others (Siswadi, 2015).68 Then, as reported Treatment or Punishment (CAT) also by Hamid (2015), in accordance with regulates about banning a severe condition corruption Romli Atmasasmita in 22nd of procedure and punishment. This Seminar Attorney Association in North convention rejects any torturous, cruel, Sumatra University 6 June 2015 has inhuman and degrading treatment and defined the concept of extraordinary crime punishment that likely to happen towards from legal impact perfective as the massive suspects of crime, suspects in custody, also and systemic crime. From both definitions, inmates in prisons who are put in death row. the concept of the extraordinary crime shall Indonesia ratified CAT with fulfill two elements, crime and impact. The declaration towards article 20 (1)(2)(3) of crime shall be held with systematically and CAT which statements are as follows, the impact shall be massive.69 1. If the Committee receives reliable Inconsistently, categorization for other information which appears to it to types of the extraordinary crime does not contain well-founded indications use the threshold of the most serious of the that torture is being systematically crime as guidelines. Not all those crimes practised in the territory of a State conducted with systematically and the Party, the Committee shall invite impact shall be massive. However, the that State Party to co-operate in the concept of extraordinary crime is examination of the information and introduced for terrorism, corruption, drug to this end to submit observations

68 Vidya Prahassacitta, “The Concept of Extra 69 Ibid. Ordinary Crime in Indonesia Legal System: Is the 70 Ibid. Concept Effective Criminal Policy?” Humaniora, (Volume 7 No. 4 2016), p. 515. 71

with regard to the information Bottom line in discussing CAT for concerned; death row is that Part 1 Article 1 of CAT 2. taking into account any gives the definition of torture, that is: observations which may have been For the purposes of this Convention, the submitted by the State Party term "torture" means any act by which concerned, as well as any other severe pain or suffering, whether physical relevant information available to it, or mental, is intentionally inflicted on a the Committee may, if it decides person for such purposes as obtaining from that - 10 - this is warranted, him or a third person information or a designate one or more of its confession, punishing him for an act he or a members to make a confidential third person has committed or is suspected inquiry and to report to the of having committed, or intimidating or Committee urgently; coercing him or a third person, or for any 3. if an inquiry is made in accordance reason based on discrimination of any kind, with paragraph 2 of this articler the when such pain or suffering is inflicted by Committee shall seek the co- or at the instigation of or with the consent operation of the State Party or acquiescence of a public official or other concerned. In agreement with that person acting in an official capacity, it does State Party, such an 'inquiry may not include pain or suffering arising only include a visit to its territory. from, inherent in or incidental to lawful Also, a reservation for Article 30: sanctions. The Government of the Republic of Indonesia does not consider itself bound by Death row arises from a death the provision of article 30, paragraph 1, and sentence established by a judicial body takes the position that disputes relating to (court). With assumption that the court trial the interpretation and application of the is held due process of law, then the death Convention which cannot be settled sentence is a lawful sanction. In general, through the channel provided for in Indonesian legal system still allows death paragraph 1 of the said article, may be penalty and this has given a legal basis for referred to the International Court of Justice the implementation of death sentence to be only with the consent of all parties to the a lawful sanction. Hence, despite of the disputes. ratification of CAT by Indonesia, death row is not included as torture that committed in a criminal law enforcement procedure. As 72 the consequence of the definition of torture, The Indonesian judicial system is it is erasing the possibility to include death regulated in the Constitution and an row as a torture based on CAT. This assortment of other implementing excludes Article 11 of CAT which regulations. The Supreme Court is the statement is as follows: highest judicial institution in Indonesia and Each State Party shall keep under constitutes the apex of the judicial power, systematic review interrogation rules, as expressly stated in Article 24(2) of the instructions, methods and practices as well Constitution.71 Indonesian criminal justice as arrangements for the custody and system, as part of the judicial system, is treatment of persons subjected to any form arranged to be hierarchical following the of arrest, detention or imprisonment in any design of judicial system itself. The territory under its jurisdiction with a view Supreme Court is the highest level of court to preventing any cases of torture. in the administration of justice in Indonesia. In a technical judicial sense all courts in Also as the consequence of that, Indonesia fall under the leadership of the death row that has occurred because of Supreme Court, but administratively and death sentence and had been torturing death financially the courts fell under the convicts for years is not the responsibility organization of the Department of Justice. of the state. By virtue of its position as Indonesia’s As other consideration, the action of highest court, the Supreme Court has ratifying any international instruments such supervision and control over all lower as ICCPR and CAT does not automatically courts.72 implementable in the national sense. The Attempts on court decision are state shall impose any provisions stated in including appeal, cassatie, judicial Review the instruments but hard to win against and cassatie for law. There is also an state’s sovereignty. attempt called presidential clemency (grasi). Appeal or known as banding in 1.3. Indonesian Criminal Justice bahasa is a legal proceeding by which a System Creates Death Row case is brought before a higher court for instead of Protecting Rights. review of the decision of a lower court.73 In

71Author unknown, Judicial System, p. 61 accessed 72 Ibid, p. 54 on 73 https://www.merriam- https://www.aseanlawassociation.org/papers/Judici webster.com/dictionary/appeals%20court accessed alSystem.pdf October 10th, 2018. on March, 31st 2018 at 18.10 73

Indonesian Justice System, court is divided punishment, this will lead to a violation of into 3 stage; fisrt stage is in District Court rights of the convicted. The convicted stays (Pengadilan Negeri)74, High Court in a prison after receiving death sentence (Pengadilan Tinggi)75 and Supreme Court and will stay there until the execution is (Mahkamah Agung)76. Appeal is an attempt scheduled. Problem is, this schedule comes that is adressed to High Court. And this after months and years. The table from attempt can be followed (or not) by attempt previous sub-chapter shows that the waiting of cassatie to be reviewed in The Supreme period before the convicted is executed Court. These stages is known as an ordinary took 5-10 years. Theoretically, after death remedy (upaya hukum biasa)77. Other than sentence is legally binding, the execution ordinary remedy, there is an extra-ordinary should be prepared, unless the convicted remedy to examine a case that is already tries for judicial review and/or presidential legally binding (in kracht), consists of two clemency. In the implementation, after option those are Judicial Review being put in custody during the court (Peninjauan Kembali/PK) and Cassatie for process, the convicted has to remain Law. All these series of stages in a Court captivated until after the verdict is dropped. System might take months to years to be The implementation of captivation and finally settled. During the whole period the death execution for one death convict is a prosecuted mainly stays in a custody. double punishment. The stages of court, including Here are reasons that have become attempts provided to review court decisions a cause factor of the state intentionally was designed to ensure the validity of postponing death execution: decision. This is to protect the rights of 1. Judicial review and parties involved in the dispute and to pursue presidential clemency the truth and justice. But, if the design is use mechanism. to settle dispute with death penalty as

74 District court is located in cities (although not in 76 Supreme Court in a single highest court on the top all cities, usualy located in big cities such as Bekasi of the pyramid and is located in the capital city of and Karawang. This is a first stage of trial to Indonesia, Jakarta. examine facts regarding disputes (criminal, civil 77 Ordinary Remedy is a series of attempt to review dispute, administrative dispute, and also military court decision that is not legally binding (because court). the convicted has not yet satisfied with the verdict, 75 High Court is the second stage of court, after and wants to demand a review). The attempt to District Court. High Courts are located in province review a court decision that is already legally region, that is the actual building is located in the binding is called extra-ordinary remedy. Extra- capital city of the province, such as, Bandung (West ordinary remedy consists of two option, Judicial Java) and Jakarta (DKI Jakarta). Review (Peninjauan Kembali/PK) and Cassatie for Law (Kasasi demi Kepentingan Hukum) 74

The postpone of death decision of execution is claimed to be permanent legal giving an opportunity for the force, the convicted death convict to request for shall be entitled to judicial review (peninjauan file a clemency to kembali) and/or presidential the President in the clemency (grasi). This is to form of a request for pursue the possibility to change, mitigation, attain forgiveness or at least abolition, or a change of punishment. elimination of Ario Priojati, S.H., M.Si. the criminal action Head of Criminal Justice against him, as Section in Nusa Kambangan provided by Law Penitentiary stated that the Nu. 22 year 2002 of execution shall conducted as Clemency. soon as possible after all the Therefore, the procedures of remedy are no decision on death longer requested. But it penalty cannot be depends on two conditions: executed until there - Whereas in the is a decision from criminal justice the president system, the court regarding the request judge is a public for the pardon from prosecutor. If there the convicted. has been no decision 2. Problem in Budget. on the execution of Ario Priojati also mentioned the public that cost is the factor that has prosecutor, in this caused the postponing of case, the Attorney execution. There has been General, then the no rule that explicitly execution cannot be regulate the cost required to implemented. execute death execution. On - Whereas with the other hand, keeping respect to the 75

inmates in a penitentiary individual passed a very long period requires cost too. of time spent on death row in extreme conditions under The postponing of death execution leads to “mounting anguish of awaiting several consequences, there are: execution”. Importantly, the breach was based on the potential for harm 1. Death row and death row to an individual in the future.81 phenomenon. 2. Overcrowded prisons. Related to the subject, the prolong Indonesia has a longtime issue delay of death execution can cause where the high criminality leads to death row phenomenon. Academic overcrowded prisons. Keeping discussions of the term generally death inmates in prison is adding the identify at least two components: number of inmates in an-already- the length of time spent on death overcrowded prisons. Yasonna row and the severity of conditions Laoly, the Minister of Justice and that prisoners are typically exposed Human Rights of Indonesia stated to.78 Specifically, that, the inmates that in some region, the over were put in a confinement for capacity of prisons already reach months and years without any 600%.82 certainty of the execution time. Currently, various courts and Indonesian criminal justice system tribunals use different approaches to is siding to regulate still about death penalty establishing the death row and its application towards special crimes, phenomenon as a violation of a right including murder, narcotics, and crime not to be tortured. The ECtHR79 against humanities. President Joko Widodo upheld the death row phenomenon stated that he will not grant a clemency for as a breach of Article 380 where an narcotics death convicts, thus, during his

78 Human Rights Advocates, Death Row psychological and legal perspective, University of Phenomenon Violates Human Rights, Vienna, p 37. http://www.humanrightsadvocates.org/wp- 82 Ragil Ajiyanto, “Over Kapasitas Penghuni LP dan content/uploads/2010/05/Death-Row-Phenomenon- Rutan di Indonesia Capai 600 Persen”, 2012.pdf accessed on October 12th, 2018. https://news.detik.com/berita-jawa-tengah/d- 79 European Court of Human Rights. 3762377/over-kapasitas-penghuni-lp-dan-rutan-di- 80 European Convention of Human Rights (ECHR) indonesia-capai-600-persen accessed on October Article 3. 12th, 2018. 81 Olga Hempel, “Death Row Phenomenon. A Fate Worse Than Death.” Torture on death row from a 76 period, clemency is only for murder and - The quality of criminal law crime against humanities. enforcement of Indonesia is still The design of punishment in such often questioned. As an archipelago way is in a shadow of illegal enforcement country with large areas, the of criminal law procedure. Zulfiqar Ali, a monitoring and supervision system Pakistani who worked in textile industry in is a problem. Indonesia, was dropped a death sentence in - Indonesia should be more 2005. Although he was not executed until progressing among other South East recently he died due to cancer, the Asia countries in death penalty investigation and court trial towards him abolition issue. The death penalty was not due process of law. Many technical was abolished in Cambodia in 1989, investigation requirements were not carried in East Timor a decade later and in out by the police, unfair trial, Zulfiqar Ali the Philippines in 2006. What’s was also tortured during the process and he more, in countries where capital was not given his rights to call Pakistan punishment was still wielded, embassy.83 moratoriums were in place. No This situation is picturing on how executions took place in Indonesia death sentence is an irreversible action. between 2008 and 2013, and none in Once there is a mistake in the enforcement, Singapore between 2010 and then there is no way to reverse the 2013.84 But, the Indonesia execution. Indonesia is showing a regress implemented death execution after by still keeping death sentence in its draft 2013. Meanwhile, just recently, of penal code, thus: Malaysia stated that its government - Death sentence is carrying out is abolishing death penalty. 85 retributive justice, while other system in criminal justice of Indonesia is retaining death Indonesia already pursuing penalty and still actively executing restorative justice, such as, Juvenile until 2016. The draft of penal code Justice System. is also still putting death penalty as alternative punishment. Death row

83 See www.imparsial.org 85 “Malaysia to abolish death penalty, granting 84 David Hutt, “Capital Punishment Far From Dead reprieve for 1,200 on death row” in South East Asia”, http://www.atimes.com/capital- https://www.cbsnews.com/news/malaysia-to- punishment-far-from-dead-in-southeast-asia/ abolish-death-penalty-rare-move-against-capital- accessed on October 12th, 2018. punishment-asia/ accessed on October 12th, 2018. 77 is a fact that happening where Asia to have a convention of death mainly death convicts spent 5-10 penalty. Hopefully, a regional years in death row. This is violating convention may give stronger human rights. But Indonesia held no influence for South East Asia responsibility under international countries to, together, abolish death human rights law; since Indonesia penalty completely. did not ratify the optional protocol of ICCPR. The CAT is also not sharply effective to say that death References: row in Indonesia shall be prohibited Books: since the definition of torture that Andi Hamzah (1986), Sistem Pidana dan this convention gives have a Pemidanaan Indonesia dari Retribusi ke limitation. Also, Indonesia has its Reformasi, Pradya own sovereignty to abolish or not to Paramita, Jakarta. abolish death penalty from its (2002), Asas-Asas Hukum constitution. Pidana, PT. Rineka Cipta. Jakarta. Considering the many weaknesses Muladi, Barda Nawawi Arief (2005), in criminal law enforcement Teori-Teori dan Kebijakan Pidana, Alumni. Indonesia is having, death penalty is Bandung. a dangerous option of punishment Muladi (2002), Lembaga Pidana Bersyarat, due to its nature of irreversibility. It Alumni. Bandung. is also not in line with the concept Yahya Harahap (2000), Pembahasan of justice that Indonesia is pursuing, Permasalahan dan Penerapan KUHAP that is restorative justice. Death Penyidikan dan penalty has a retributive approach. Penuntutan, Sinar Grafika. The only effective way to Jakarta. avoid death row is by abolishing death penalty completely. As a Journal: sovereign state, Indonesia has its Vidya Prahassacitta, “The Concept of Extra own decision regarding death Ordinary Crime in Indonesia Legal System: penalty despite international Is the Concept Effective Criminal Policy?” convention it ratified. It can be Humaniora, (Volume 7 No. 4 2016) considered for international Online Journal: community to propose South East 78

Conall Mallory, Abolitionists at Home and http://www.humanrightsadvocates.org/wp- Abroad: A Right to Consular Assistance content/uploads/2010/05/Death-Row- and the Death Penalty, (Melbourne Journal Phenomenon-2012.pdf of International Law. Vol 17) https://news.detik.com/berita-jawa- Article: tengah/d-3762377/over-kapasitas- Olga Hempel, “Death Row Phenomenon. A penghuni-lp-dan-rutan-di-indonesia-capai- Fate Worse Than Death.” Torture on death 600-persen row from a psychological and legal www.imparsial.org perspective, University of Vienna http://www.atimes.com/capital- Online sources: punishment-far-from-dead-in-southeast- https://www.cbsnews.com/news/malaysia- asia/ to-abolish-death-penalty-rare-move- https://www.cbsnews.com/news/malaysia- against-capital-punishment-asia/ to-abolish-death-penalty-rare-move- https://www.indonesia- against-capital-punishment-asia/ investments.com/culture/politics/reformati on/item181? https://deathpenaltyinfo.org/time-death- row https://www.cnnindonesia.com/nasional/2

0150428185400-12-49829/kronologi- kasus-narkotik-yang-menjerat-duo-bali- nine https://www.amnesty.org/en/what-we- do/death-penalty/ https://treaties.un.org/doc/publication/unts/ volume%20999/volume-999-i-14668- english.pdf https://www.ohchr.org/en/professionalinter est/pages/opccpr1.aspx https://www.aseanlawassociation.org/pape rs/JudicialSystem.pdf https://www.merriam- webster.com/dictionary/appeals%20court

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