CAPITAL PUNISHMENT IN INDONESIAN LEGAL SYSTEM:
BETWEEN LEGAL CERTAINTY AND LEGAL CULTURE
By
Aditya Rini
ID No. 017201300001
A Thesis presented to the Faculty of Humanities President University in partial fulfillment of the requirements of Bachelor Degree in Law Major
2017 i
THESIS ADVISOR
RECOMMENDATION LETTER
This Thesis entitled “Capital Punishment in Indonesian Legal System:
Between Legal Certainty and Legal Culture” prepared and submitted by
Aditya Rini in partial fulfillment of the requirement for the degree of Bachelor of
Law in the Faculty of Humanities has been reviewed and found to have satisfied the requirement for a thesis fit to be examined. I therefore recommend this thesis for Oral Defense.
Cikarang, Indonesia, February 13, 2017
Dr. Edy Santoso Zenny Rezania Dewantary, S.H., M.Hum
Advisor 1 Advisor 2
ii
DECLARATION OF
ORIGINALITY
I declare that this Thesis entitle “Capital Punishment in Indonesian Legal
System: Between Legal Certainty and Legal Culture” is, to the best of my knowledge and belief, an original piece of work that has not been submitted either in whole or in part, to another university to obtain degree.
Cikarang, Indonesia, February 13, 2017
Aditya Rini
iii
PANEL OF EXAMINERS APPROVAL SHEET
This Thesis entitled “Capital Punishment in Indonesian Legal System:
Between Legal Certainty and Legal Culture” has been submitted by Aditya
Rini majoring in Law from the Faculty of Humanities has been assessed and approved to have passed the Oral Examination on February 27th 2017.
Dr. Edy Santoso
Chair Panel of Emaniners/Thesis Advisor
Zenny Rezania Dewantary, S.H., M.Hum
Examiner I
Dra. Fennieka Kristianto, S.H., M.H., M.A., M.Kn
Examiner II
iv
ABSTRACT
The research has a purpose to analyze and find answer for two things, there are: first, the enforcement of capital punishment in Indonesian legal system.
Second, The reasons, background, and consideration of the exsistance of capital punishment.
This research done by normative legal research, thus the research examine the problems to find out the solutions using the methods which obtaining the remaining way which could be controled and has the basis of any kind of supporting theories related to the enforcement of capital punishment. It also directly related to the legal practice which concerning into two main aspects regarding the legal forming (legal development) and legal implementation concerning the capital punishment. In this research writing, using approach of statute; comparative; and philosophy by using related laws, regulations, and legal principles, supporting by the theories and principles that related to the research problem as the central of focus, in addition author using comparative approach with Malaysian Law limited to certain regulations which concern to the Capital
Punishment.
The result of research that had already found: first, the capital punishment does not violate Pancasila, the 1945 Constitution and any other Laws both nationally and internationally. Second, capital punishment feasible to be applied as long as society still need it and as deterrence effect.
Keywords: Capital punishment, Indonesia, Retentionist, Indonesian Penal
Code Renewal, Alternative Punishment.
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ABSTRAK
Penelitian ini bertujuan untuk menganalisis dan menemukan jawaban atas dua hal, yaitu: pertama, mengenai penegakan hukuman mati dalam sistem hukum
Indonesia dan yang kedua, berkenaan tentang alasan, latar belakang, dan pertimbangan dari adanya hukuman mati.
Penelitian ini dilakukan dengan metode penelitian hukum normatif, dimana dalam penelitian ini menguji rumusan masalah dengan upaya mencari solusi menggunakan metodologi yang terkait dengan teori pemberlakuan pidana mati.
Dimana hal tersebut terkait langsung dengan berbagai bentuk praktik hukum yang berfokus kepada dua aspek utama tentang penemuan hukum (perkembangan hukum) dan implementasi hukum terkait pelaksanaan hukuman mati. Dalam penulisan, penelitian ini menggunakan pendekatan statuta; komparatif; dan filosofi dengan menggunakan undang-undang, peraturan, dan prinsip hukum yang terkait, dengan didukung teori dan prinsip yang terkait dengan rumusan masalah, sebagai tambahan Penulis menggunakan pendekatan komparatif terhadap Hukum
Malaysia, yang terbatas pada beberapa peraturan yang terkait tentang hukuman mati.
Hasil penelitian yang telah ditemukan adalah sebagai berikut: pertama, hukuman mati tidak melanggar Pancasila, UUD 1945 dan UU lainnya baik secara nasional maupun internasional. Kedua, hukuman mati layak diterapkan selama masyarakat masih membutuhkannya dan sebagai efek pencegahan akan kejahatan yang akan datang.
Kata kunci: Hukuman mati, Indonesia, Retensionis, Pembaruan Kitab
Undang-Undang Hukum Pidana, Hukuman Alternatif
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ACKNOWLEDGEMENTS
First of all, I would like to thank to Allah SWT, for His blessings in my life, lead and accompany me during ups and downs, especially that I could finish my thesis in order to achieve Bachelor Degree of Law. In completing my thesis writing, I am using this opportunity to express my gratitude to everyone who supported me.
I would like to thank to my beloved family. My father Slamet Hariyadi; my mother Marini Hasyim; my brothers Haryo Umboro and Hari Triadi Syarifahri; my sisters Meilla Inayah and Salwa Ulya Athiyah and my uncle Indrardjo
Kusumo W. Soemasto who support me. This achievement is only the beginning. I would promise you that I made you even prouder in the future. I love you with all of my heart.
I would like to express my sincere gratitude to my advisors Mr. Edy
Santoso and Mrs. Zenny Rezania Dewantary for the continuous support, for the patience, motivation, and immense knowledge. Their guidance help me in all the time of research and writing of this thesis. I thank to Mrs Fennieka Kristianto as the Head of Law study program and also the other lecturers of Law study program, to Mrs. Maria Francisca, Mr. Mahayoni Manasye, Mr. Yance Arizona,
Mr. Veri Junaidi, Mr. Sujana Donandi Sinuraya, Mrs. Rahma Mary, Mr. Iyus
Tobing, Mr. Nur Munir, Mr. Arif Maulana, and other names that could not be mentioned for your kindness in giving knowledge through all years of study and also my beloved Mbak Maya Nursita who helps most of my administration issue in these past years.
vii
This thesis would not have been possible to be done without Matteo Lelli who always support and help me in any conditions in this period, thanks for everything. My best friend Dara Rizki Amalia, Efi Fauzia, Madonna Natalia,
Marrietta Rizkita Sihotang, Khorunnisa, and Bella Jelita Nediawati who always cheer me up and help me to go through this all. I thank you, I really appreciate it so much.
I thank to my colleagues during the Internship program in Nestle, to my supervisor Mr. Didik Mas’adi, Mrs. Annisa Permata, all Management team and all
Union team for all knowledge and self development that you have taught me. To all of my friends during the Internship program in Nestle, Gusti Anggita, Agnes
Friska Cyntia, Joanna, Tania, Chris, Prayogo Yoedo, Ana Fitria and Andyn who never stop to support me.
I thank you for all who have helped me that cannot be mentioned one by one and also for those useful tools that are always available to help me to get the information and references, National library, University of Indonesia library,
Internet, Google and other tools that support me to do my thesis and works effectively and efficiently.
Thank you for everything and at last but not least, I pray the best for you all and may God bless you.
Cikarang, Indonesia, February 13, 2017
Aditya Rini
viii
TABLE OF CONTENTS
THESIS ADVISOR RECOMMENDATION LETTER ...... i
DECLARATION OF ORIGINALITY ...... ii
ABSTRACT ...... iv
ABSTRAK ...... v
ACKNOWLEDGEMENTS ...... vi
TABLE OF CONTENTS ...... viii
LIST OF TABLES ...... xii
LIST OF ABBREVIATIONS...... xiii
CHAPTER I INTRODUCTION ...... 1
A. Background ...... 1
B. Problem Identification ...... 6
C. Research Objectives ...... 6
1. General Objective...... 6
2. Specific Objective ...... 6
D. Scope and Limitation ...... 6
E. Research Benefits ...... 7
F. Framework ...... 7
G. Research Methodology...... 9
ix
1. Type of Research...... 9
2. Type of Data ...... 9
3. Data Collection...... 10
4. Data Analysis ...... 11
H. Approach ...... 11
I. Systematic Writing ...... 12
CHAPTER II CAPITAL PUNISHMENT IN INDONESIAN LEGAL SYSTEM ...... 14
A. Definition of Capital Punishment in Indonesian Legal System ...... 14
1. Indonesian Penal Legal System ...... 14
2. Definition of Capital Punishment...... 16
3. Capital Punishment on Indonesian Legal System Perspective ...... 20
a) Capital Punishment in Indonesia Penal Code ...... 24
b) Capital Punishment in other Laws ...... 25
B. Theories and Principles that Related to Capital Punishment ...... 29
1. Theory of Purpose of Penal Sentences ...... 29
a) The Absolute Theory (Retributive / Vergeldings Theorieen) ...... 30
b) The Relative Theory (Utilitarian / Doeltheorieen)...... 36
c) Combined Theory (Verenigings Theorieen) ...... 39
d) Purpose of Penal Sentences ...... 45
x
2. Schools of Criminal Law ...... 46
a) Classical school...... 47
b) Modern School ...... 53
C. Theory of Legal System (Lawrence Friedman) ...... 64
1. Legal Structure ...... 64
2. Legal Substance ...... 66
3. Legal Culture ...... 66
CHAPTER III THE IMPLEMENTATION OF CAPITAL PUNISHMENT IN INDONESIA ...... 68
A. Extra Ordinary Crimes based on Indonesian Law ...... 68
B. Case Position Related to the Implementation of Capital Punishment in Indonesia ...... 70
1. Narcotic – Bali Nine...... 70
2. Terrorism – Bali Bombing 2002 ...... 73
C. Capital Punishment in Malaysian Law ...... 79
1. Capital Punisment Implementation in Malaysia ...... 80
a) Murder, Attempted Murder and Murder During Gang Robbery ...... 81
b) Drug Trafficking ...... 82
c) Drugs Trafficking Case in Malaysia (Reza Shah) ...... 83
D. Pro and Contra Views Towards the Enforcement of Capital Punishment in Indonesia ...... 85
xi
CHAPTER IV ENFORCEMENT OF CAPITAL PUNISHMENT IN INDONESIAN LEGAL SYSTEM: BETWEEN LEGAL CERTAINTY AND LEGAL CULTURE ...... 88
A. Capital Punishment Under Indonesian Legal System ...... 88
1. Capital Punishment in Pancasila ...... 88
2. Capital Punishment under The 1945 Constitution ...... 92
3. Capital Punishment under Related Laws ...... 94
B. The Existance of Capital Punishment in Indonesian Legal System ...... 95
CHAPTER V CONCLUSION AND RECOMMENDATIONS ...... 99
REFERENCES ...... 101
xii
LIST OF TABLES
Table 1. Differences of Classical school and Positive school ...... 61
Table 2. Compilation of Bali Bombers Decision ...... 78
Table 3. Malaysian Drug Act Framework...... 84
xiii
LIST OF ABBREVIATIONS
1. OHCHR: Office of the United Nations High Commissioner for Human
Rights
2. KUHP: Kitab Undang-Undang Hukum Pidana
3. HIR: HerzieneInslandschReglement
4. KBBI: Kamus Besar Bahasa Indonesia means Great Dictionary of
Indonesian Language
5. WvS: Wetboek van Strafrecht
6. LPHN: Lembaga Pembinaan Hukum Nasional
7. IKV: Internationale Kriminalistische Vereinigung / Union – Internationale
de Droit Penal
8. C.I.P.P.: Commission Internationale Penal et Penitentiaire
9. AFP: Australian Federal Police
10. PK: Peninjauan Kembali
11. NGO: Non-Govermental Organization
12. ICCPR: International Convention on Civil and Political Rights
13. UN: United Nations
14. KUHAP: Kitab Undang-Undang Hukum Acara Pidana
Table 1. Differences of Classical school and Positive school ...... 61
Table 2. Compilation of Bali Bombers Decision ...... 78
Table 3. Malaysian Drug Act Framework...... 84
CHAPTER I
INTRODUCTION
A. Background
Capital Punishment has been raised up and got people’s attention cause of the Bali Nine Narcotics Case on 2015.1 The defendants mostly are not Indonesian citizens but foreigners, and the decision was sentence them to death. This decision led people to be divided into pro and contra abot the capital punishment.
The capital punsihment decision not only affected Indonesian legal system, but also related to other countries which become the place where the defendants being stay as citizens. The implementation of capital punishment towards foreigners who commited crimes in Indonesia, most likely to cause of the problem to the diplomatic relation between both countries2.
As a country which uphold the human rights as it stated in The 1945
Constitution article 28 A as,
Setiap orang berhak untuk hidup serta berhak mempertahankan hidup dan kehidupannya.
1Kompas, Ini Kronologi Kasus Narkoba Kelompok "Bali Nine", 2015, http://regional.kompas.com/read/2015/04/29/06330021/Ini.Kronologi.Kasus.Narkoba.Kelompok.B ali.Nine, retrieved on October 15 2016. 2See Jurnal DPR Info Singkat, Dinamika Hubungan Bilateral Indonesia - Australia Pasca Hukuman Mati Chan dan Sukumaran, Vol. VII, No. 09/I/P3DI/May 2015., retrieved on October 18, 2016.
1
2
(Every person shall have the right to live and to defend his/her life and existence).
In Indonesia Criminal Justice System (in Indonesian Penal Code),
Indonesia recognize 5 types of punishment3, and one of them is capital punishment. As a part of international organization, Indonesia should obey the rules and guideline which applied globally. In international scope there is the
Office of the United Nations High Commissioner for Human Rights or known as
OHCHR4, as one of International instruments that concerns on human rights including aspects that related with capital punishment.
Regarding to the recognition of human rights, there are some of
International treaties that had been ratified by Indonesia namely, International
Covenant on Civil and Political Rights through Law No. 12 year of 2005;
Convention on the Elimination of All Forms of Discrimination against Women on
September 13, 1984; United Nations Convention against Transnational Organized
Crime on April 20, 2009; Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime Preamble, supplementing the
United Nations Convention against Transnational Organized Crime on September
28, 2009; Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized
3See Indonesian Penal Code, article 10. 4http://www.ohchr.org/EN/Pages/Home.aspx, retrieved November 10, 2016.
3
Crime on September 28, 2009; Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment on October 28, 1998;
Convention on the Rights of the Child on September 5, 1990; etc.5
Those international treaties represent the recognition of human rights from many aspecrts, such as womens, child, migrants, labor and employement, etc. But from most of all, Indonesia have not yet ratified the main concerned of human rights international treaties, such as International Covenant on Economic, Social and Cultural Rights; Optional Protocol to the International Covenant on Civil and
Political Rights; Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the capital punishment, and many others6.
Indonesia has not ratified those conventions and it strengthen the perspective of the effort to keep the implementation of capital punishment as the highest penal sentence that applied in Indonesia to the most extra ordinary crimes cases.
The function of the law itself is as a guideline for human behavior, which is forced by the imposition of penalties for anyone who violates the contents of the guidelines of the law. Thus, the law is a means of social controlers. Discussing about the law and sanctions, problems implementation of capital punishment in
5University of Minnesota: Human Rights Library, Ratification of International Human Rights Treaties – Indonesia, http://hrlibrary.umn.edu/research/ratification-indonesia.html, retrieved on November 10, 2016. 6 Ibid.
4
Indonesia always raise the controversy with vary reasons which those unclear, both sociological, judicial, or philosophically.7
Capital punishment is one of the most severe penal sanctions that compared to other penalties because the implementation of capital punishment will cause a taken-by-force of a human life. Human life is the most precious and need to be preserved.
Criminal law referred capital punishment for several extra ordinary crimes.
For example in Indonesian Criminal Code (KUHP), Article 10 which set about the types of penal sanctions and outside of the Criminal Code (extra ordinary crime)8, including Law No. 26 year 2000 concerning Human Rights Court, Law No. 35 year 2009 concerning Narcotics, Law No. 5 year 1997 concerning Psychotropic
Drugs and Law No. 15 The year 2003 concerning the Eradication of Terrorism.
However, in practice the implementation of capital punishment always raise a debate and controversy among the public. The consideration of human rights in the implementation of the capital punishment, affects the legal certainty in Indonesia as the rule of law. Thus, the constitution also put a guarantee about the human rights restrictions beside on the implementation and also about the recognition of human rights in Indonesia. The restrictions in human rights run with conditions, namely must be in accordance with the terms of applicable law, or with the moral consideration, order, and the security of the mass society (furthermore, stated on the Article 28 J of The 1945 Constitution);
7Komariah Emong Sapardjaja, Jurnal Legislasi Indonesia:Permasalahan Pidana Mati di Indonesia, Jakarta: Yayasan Kesejahteraan Anak Indonesia, 2007, Vol. 4, No.4, page. 19. 8 Andi Hamzah dan A. Sumangelipu, Pidana Mati Indonesia, Jakarta: Ghalia Indonesia, 1985, page. 11.
5
Paragraph 1: Everyone is obligated to respect the human rights of others
in the orderly life in the rubble, and statehood.
Paragraph 2: In performing the rights and freedom, every person must be
obliged to the specified restrictions that’s has been
regulated by the Law, with the intent merely to ensure the
recognition and respect for the rights and the freedom of
others and to meet the demands of the fairness in
accordance with the moral consideration, the values of
religion, security and public order in a democratic society.
According to Lombroso and Garofalo, that the capital punishment is a tool that is absolute and must be present on the community to eliminate individuals who may not be able to be repaired anymore. Capital punishment is a radical effort to abolish the people that cannot be repaired in the future and with the existence of the capital punishment obligation to keep such a multitude of them in prisons.9
The capital punishment matters raising several argumentations which contains with pro and contra but in the other hands it is important to maintain the public interest. Furthermore, the author need to elaborate the enforcement of capital punishment in Indonesia.
Related to the explanation of the background above mentioned, it is needs to examine more about Capital Punishment in Indonesian Legal System: Between
Legal Certainty and Legal Culture.
9Ibid. page. 30.27.
6
B. Problem Identification
Based on the background above, then the authordecided to identify the problems in this research as follows:
1. How is the capital punishment under Indonesian Legal System?
2. Why does capital punishment still exist in Indonesian Legal System?
C. Research Objectives
1. General Objective
Based on the problem that have been mentioned above, the general purpose of this research aim to analyze the policy in law enforcement and the imposition of sanctions for perpetrators of most extra ordinary crimes according to various legislation in Indonesia.
2. Specific Objective
This research has a special purpose namely, to examine the mechanism of the enforcement of capital punishment for the most extra ordinary crimes in
Indonesia.
D. Scope and Limitation
This research examines and analyzes the mechanism of the enforcement of capital punishment for the most extra ordinary crimes especially in Indonesia, emphasizing on the Bali Nine Case and Bali Bombing by have a review to several
7
legislations related to most extra ordinary crimes, capital punishment considering the human rights on legal culture perspective at its application.
E. Research Benefits
The theoritical benefits, the authors hope this research could provide the information and contribution of thought to give an additional knowledge of the science of crimes in general and about the most extra ordinary crime in particular.
So this research can enrich the treasuries and the collection of scientific papers to build knowledge of the law in later days related about capital punishment and most extra ordinary crimes in the review of legislations.
The practical benefits, the author hope this research can be useful for legal practitioners, law enforcement agencies and the readers in the implementation of the capital punishment for perpetrators of most extra ordinary crimes and the obstacles of the implementation of the capital punishment in Indonesia.
F. Framework
Theoretical foundation is an attempt to identify theories the concepts of the law, the principles of law, the rule of law, norms and others that will be used as the basis to discuss the issues of this research.10 In this research, the author deploy the principles of law, doctrine, concepts of law, legal basis and theories of law as a theoretical foundation.
10 The Faculty of Law of the University of Udayana University, Guidelines Education Law Faculty Udayana University, Denpasar, 2009, page. 64
8
There are several consideration of sentence on capital punishment, based on
Regulation No. 1 Year of 2002 about the eradication of criminal acts of terrorism and the Government Regulation in Lieu of Legislation of the Republic of
Indonesia No.2 year 2002 about the enactment of the Government Regulation in
Lieu of Legislation of the Republic of Indonesia No.1 year 2002 about the
Eradication of Criminal Acts of terrorism; Law no. 35 year 2009 concerning
Narcotics; Law no. 20 year 2001 concerning Eradication of Corruption; Law no.
26 year 2000 concerning Justice of Human Rights against Law no. 39 year 1999 concerning Human Rights, furthermore the Author formulate the principles that reflects the Legislation itself, such as:
Principle of Utility of Law in relation with Principle of Morality and legislation according to Cesare Beccaria and Jeremy Bentham’s Theory.
And also cleared screened theories based on Crime and Penalty Theory, applied in the implementation of the capital punishment, namely:
Theory of Purpose of Penal Sentences:
Absolute Theory (vergeldingstheorien)
Purpose Theory / Relative Theory (doeltheorien)
Combined Theory
Theory of Legal System (Lawrence M. Friedman)
Legal structure
Legal substance
Legal culture
9
G. Research Methodology
1. Type of Research
This research done by the normative legal research methodology, thus the research examine the problems to find out the solutions using the methods which obtaining the remaining way which could be controled and has the basis of any kind of supporting theories. It also directly related to the legal practice which concerning into two main aspects regarding the legal forming (legal development) and legal implementation.11
The first step, done normative legal research that use secondary data obtained from the various legislation related to terrorism, narcotics, corruption, and various literature related to problems in this research. The author aims to find the basis of the law is clear in placing this question in the perspective of the criminal law especially related to criminal policy in application of capital punishment enforcement for most extra ordinary crimes towards Indonesian legal system.
2. Type of Data
The Data used is the secondary data which obtained from the literature. The utility of secondary data is as an early data or information that will be used for the
11 Johnny Ibrahim, Teori dan Metodologi Penelitian Hukum Normatif, Malang: Bayumedia Publishing, 2007, page. 56
10
research, to get the theoretical basis or legal basis and also to get the definition for the terms.12
Secondary data can be categorized into 3 types:
The Primary legal materials are all documents governing regulations and determined by the authorities of the form of the Criminal Code, Act and other regulations related to this problem.13
Secondary legal materials are all the document is information or the results of this study about the crimes related to the most extra ordinary crimes and the sentence of death, as books, journal, newspapers, scientific paper about the crimes related to the most extra ordinary crimes and some of the sources from the internet sites that relate to the question above.14
Tertiary legal materials are all the documents that contain the concepts and information that supports Primary legal materials and Secondary legal materials such as the dictionary, encyclopedias, bibliography and others.15
3. Data Collection
To obtain a scientific truth in the writing of research, then the author uses data collection method by means of literature study (library research) namely
12 Burhan Ashshofa, Metode Penelitian Hukum, Jakarta: PT. Rineka Cipta, 1996, page 103. 13 Husein Umar, Metode Penelitian Untuk Skripsi dan Tesis, Jakarta: PT. Raja Grafindo Persada, 2005, page 42 14 Ibid. 15 Ibid.
11
learn and analyze systematically from the books, articles, newspapers internet, legislation and other materials related to the material discussed in this research.
4. Data Analysis
Secondary data that has been obtained and then analyzed in qualitative research is data obtained and then arranged in a systematic and then analyzed by qualitative research to achieve the clarity of the issues that will be discussed.
H. Approach
1. Statute Approach
This research will be done by using related laws, regulations, and legal
principles as the central of focus of the examination towards the research.16
2. Philosophical approach
The research is done by using the theories and princpiles that related to the
research problem to analyze the problem.
3. Comparative Approach
This research will be done by the Comparative approach with Malaysian
Law limited to certain regulations which concern to the Capital
Punishemnt concerning legal research or known as Comparative law.
According to Michael Bodgan, Comparative law encompasses to the
comparing of different legal systems with the purpose of ascertaining their
16 Ibid. page. 302
12
siiliarities and differences, for instance explaining their origin, evaluating
pf the solutions utilized in the different legal systems, grouping of legal
system into families of law, or searching for the common core of the legal
system; and the treatment of rhemethodolical problems which arise in
connection with these tasks, including methodological problems connected
to the study of foreign law.17
I. Systematic Writing
In the writing of this research will be divided into 5 (five) chapters:
CHAPTER I – Introduction
This chapter describes the introduction of things that are related with the background, Research Problem, Research Objectives divided into General
Objective and Special Objective, Scope and Limitation, Research Benefits,
Research Methodology, and Systematic Writing.
CHAPTER II - Capital Punishment in Indonesian Legal System
This chapter will discuss about the definition of capital punishment, how does capital punishment from Indonesian legal system perspectives, discuss about the theories and principles which has been used in capital punishment
17 Michael Bogdan, Comparative Law, Stockholm: Kluwer Nortsteds JuridikTano, Sweden, 1994, page. 18.
13
implementation which relate to international regulation and national regulation related to the enforcement of capital punishment.
CHAPTER III - The Enforcement of Capital Punishment in Indonesia
This chapter will discuss about the legal enforcement of the capital punishment, the types of extra ordinary crime, pro and contra of capital punishment, several related cases due to the implementation of capital punishment, and brief explanation about the Malaysian legal system.
CHAPTER IV - Enforcement of Capital Punishment under Indonesia Legal
System
This chapter stated about the analysis of the enforcement of capital punishment in Indonesia. The considerations related to the capital punishment as part of legal substance and the human right in Constitution and Pancasila as the representatives of Indonesian legal culture. The Author examine certain laws that related to the implementation of the positive law itself.
CHAPTER V - Conclusion and Recommendation
This chapter containing the conclusion of all the chapters that there is in the writing of this research as the answer of the problem and then made suggestions by put the recommendation that were donated by the author thought to issues that have been presented in this research.
CHAPTER II
CAPITAL PUNISHMENT IN INDONESIAN LEGAL
SYSTEM
A. Definition of Capital Punishment in Indonesian Legal System
1. Indonesian Penal Legal System
During the colonialization there are two kinds of penal legal systems that applied in Indonesia, it’s divided to be applied for European and Indonesian natives. In 1951 enforced The Law No. 1 Drt. Year 1951 (State Gazette No. 81) concerning Het HerzieneInslandschReglement (Staatsblad year 1941 No.44) as the unification of law by applying HIR in all of Indonesian Region.18
In its implementation there is arising problems within the instrument of law enforcement, between the police and prosecutor or prosecutor and judge. For example, based on the common position the police asked the right to conduct the preliminary investigations which is held by the prosecutors, but HIR stated it as the police authorities. In addition, police claimed themselves as the professional investigators who focus only in the investigation stages and the prosecutors only as a bridge from investigation stages to the trial section. Then prosecutor reasoning the Officier van Justitie function that held by them as itssubstitute on the colonialization era.
18 R. Abdussalam and DPM Sitompul, Sistem Peradilan Pidana, Jakarta: Restu Agung, 2007, page.27.
14
15
The problem solved as Law No. 13 Year 1961 concerning the General
Principle of the State Police of the Republic of Indonesia being enforced19, to guarantee the legal certainty of the police authority.
As Law No. 8 Year 1981 concerning on Indonesian Law of Criminal
Procedure being enacted, there isa significant changes both on conception and implementation on Indonesian criminal law itself. The mainly purpose of
Indonesian law of criminal procedure is to protect the human rights, and there are several differences between Indonesian law of criminal procedure and HIR namely: the rights of defendants, legal aid on any examination stages, legal basis for arrestment and limitation of detention period, compensation and rehabilitation, merger of the civil matters with criminal matters on compensation, remedy (legal remedy), connectivity, and supervision of execution on court decisions.20
The criminal law that enacted in Indonesia is a kind of codified law which almost of all regulations has been arranged in one code (wetboek), as known as
Indonesian penal code. There are several regulations which related to criminal conduct and it was set outside of the code, for example the traffic regulations
(Wegverkeersordonantie) and other regulations which stand to Indonesian penal code system, its proven by the statement on article 103 Indonesian penal code,
The provisions of the first to eight chapters of this Book shall also apply to facts
19 Ibid, page. 28. 20 Ibid, page. 30.
16
on which other statutory provisions impose punishment, unless determined otherwise by statute.21
2. Definition of Capital Punishment
Punishment or known as penalty in criminal matters, according to Prof.
Roeslan Saleh is,
Pidana adalah reaksi atas delik, dan ini berujud suatu nestapa yang
dengan sengaja ditimpakan negara pada pembuat delik itu.
Punishment is a reaction over delict (criminal conduct) and it’s tangible as an agony that is intentionally inflicted by the country to the offender of a crime.22
According to H.L.A Hart, punishment must:
1. Involve pain or other consequences normally considered unpleasant;
2. Be for an actual or supposed offender for his offence;
3. Be for an offence against legal rules;
4. Be intentionally administered by human beings other than the
offender;
5. Be imposed and administered by an authority constituted by a legal
system against with the offence is committed.23
21 Moeljanto, Asas – Asas Hukum Pidana, Jakarta: Rineka Cipta, 2000, page. 16. 22 Muladi and Barda Nawawi, Teori-teori dan Kebijakan Pidana, Jakarta: Alumni, 1992, page. 2.
17
As stated on Black’s Law Dictionary, punishment is any fine, penalty or confinement inflicted upon a person by authority of the law and the judgement and sentence of a court, for some crime or offence committed by him, or for his omission of a duty enjoined by law.24
From the explanation above, it show the characteristics of punishment, namely:
a. Punishment, in fact an imposition of suffering or sorrow or the effects
of other unpleasant;
b. Punishment was given deliberately by persons or entities who have the
power (by authorities);
c. Punishment was imposed on a person who has committed a crime
under the law.
Besides all these characteristics that has been stated above, Alf Ross give an additional statement about the punishment characteristics, explicitly, that punishment must be also a statement denouncing the perpetrators, in aiming to divide the essential meaning of punishment and treatment.
According to Alf Ross the concept of punishment in contrast to two conditions or purpose, namely:
(1) Punishment is aimed at inflicting suffering upon the person upon
whom it is imposed; and
23 Ibid, page. 3. 24 Ibid, page. 3 - 4.
18
(2) The punishment is an expression of disapproval of the action for which
it is imposed.25
The differentiation between punishment and treatment is on the denounce element, as Herbert L. Packer stated that benchmark of an atrocity, not a trait that distinguishes between the punishment and treatment, but from its purpose and how far the role of the perpetrator acts, against any punishment or treatment. 26
The main purpose of treatment itself is to give the advantage or to change the person concerned. The focus is not to their previous or future acts, but on the purpose to give them help. The justification of the treatment is on the view that the person concerned will or may be better. The main goal of treatment is to improve the well-being of the perpetrators.27
Whereas the punishment, the justification is based on one or two purposes, namely:
(1) The prevention of crime or undesired conduct or offending conduct;
(2) The deserved infliction of suffering on evildoers/retribution for
perceived wrong doing.28
Thus, in criminal matters, the focus is on a tortious or criminal act that has been committed by the offender as a condition that must be exist or play as a major role for determining whether or not a punishment would be sentenced, but in term of treatment, the relation within an intentionally criminal act is not necessary.
25 Ibid, page. 4. 26 Ibid, page. 5. 27 Ibid, page. 5 - 6. 28 Ibid, page. 6.
19
Substantively, the aim of a sentence is to prevent or avoid certain crimes and violations to be happened. The extraordinary crimes and the capital punishment itself in the criminal law history most likely are two components problem which is related one another. It is stated on Indonesian penal code which threatened all those most extraordinary crimes by implementing the capital punishment.29
There are various understanding about the definition of capital punishment.
According to KBBI 30 capital punishment is criminal charge of taking the life of the convict. Based on legal dictionary capital punishment is a punishment that consists of killing the offender. They have vary methods around the world and include, or have included, hanging, garrotting, use of the guillotine, shooting, gassing, lethal injection and electrocution.31
Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. It can only be used by a state, it is usually only used as a punishment for particularly serious types of crimes, but in some countries treason, types of fraud, adultery and rape are capital crimes. The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal' punishment, such as flogging, takes its name from the Latin word for the body.32
29 Syahruddin Husein, Pidana Mati Menurut Hukum Pidana Indonesia, North Sumatera: USU Library, 2003 page. 1. 30 KBBI abbreviation of Kamus Besar Bahasa Indonesia means Great Dictionary of Indonesian Language 31 http://legal-dictionary.thefreedictionary.com/capital+punishment 32 http://www.bbc.co.uk/ethics/capitalpunishment/intro.shtml
20
3. Capital Punishment on Indonesian Legal System Perspective
Indonesia adopts all forms of legislation in force in the Netherlands is based on the principle of concordance as stated in Article II transitional rules
1945.Indonesian Penal Code in force at the moment is still maintaining several articles and laws that some of it already replaced or even eliminated from the codified laws. In line with the punishment, according to positive law that applied in Indonesia (Indonesian penal code and related laws) the type of punishment according to Indonesian penal code article 10, divided into 2 (two):
a. Basic punishment:
1. Capital punishment;
2. Imprisonment;
3. Light imprisonment (Pidana kurungan);
4. Fine;
5. (Pidana Tutupan).33
Pidana Tutupan is one of the principal forms of punishment stipulated in
Article 10 of the Code of Penal (KUHP).34 According to Andi Hamzah in the book Principles of Criminal Law (p. 191), Pidana Tutupan is provided for the politicians who commit crimes due to the ideology espoused.
33 Muladi and Barda Nawawi, Op.cit., page. 44. 34 KUHP is abbreviation of Kitab Undang – undang Hukum Pidana means Indonesian penal code.
21
The addition of Pidana Tutupan into the Indonesian penal code provisions is based on the provisions of Article 1 of Law No. 20 Year 1946.
In Article 2 of Law 20/1946 states that in prosecute people who commit a crime which punishable by imprisonment, as driven by the intent of the venerable, the judge may impose punishment of Tutupan.
The rule in paragraph 1, shall not apply if the act constitutes a crime or how to do the act or result of that action is such that the judge argued, that a prison sentence is in place.35 b. Additional punishment:
1. Deprivation of certain rights;
2. Forfeiture of specific property;
3. Publication of judicial verdict.36
Prof. Soedarto stated that the meaning of "crime sentenced" is equivalent to the punishment that comes from the word "law" which means "apply the law" by asserting that the definition of "punishment" in criminal law is synonymous to verdordeling.37
Criminalization (decide a conviction) was justified along the goal to uphold the rule of law, it was decided within the limits required, within the framework of an effort to convincethe convicted, made through research without violating the essence of human rights.38
35 http://www.hukumonline.com/klinik/detail/lt50c2ee2cbcf46/mengenai-hukuman- tutupan 36 Muladi and Barda Nawawi, Op.cit., page. 44. 37 Verdordeling supposed to be written as veroordeling, means condemnation. 38 Waluyadi, Hukum Pidana Indonesia, Jakarta: Djambatan, 2003, page. 178.
22
In Indonesian penal code, capital punishment listed in the first place regarding the principal types of criminal, but in other hand the Laws in practice still provides an alternative to a life imprisonment or imprisonment for ever twenty years (see Article 340 of the Indonesian penal code). The execution of the capital punishment, sentenced by Courts in the area of General or military courts, done with shot to die, according to the provisions in Law No. 2 (Pnps) year 1964
(Article 11 Indonesian penal code). In the article 2 until article 16 of Law no. 2
Pnps year 1964, based on the outline which contain the procedures for the execution. Those main provisions mentioned before are:
1. Within thirty days, before the execution, shall be notified to the defendant on
the implementation of the capital punishment, by the parties who are given the
authority to (prosecutor);
2. For a defendant who is a woman and she is pregnant, then the execution
should be delayed until the birth of the baby;
3. Place of the execution of the capital punishment is determined by the Ministry
of Justice, which will usually be determined by the jurisdiction of the District
Court where the defendant was sentenced to death by judge;
4. The capital punishment is carried out by firing squad led by the commissioned
officer of police;
5. Chief of Police in the jurisdiction concerned, responsible for the
implementation of the capital punishment, after hearing the advice of the
prosecutors;
6. The capital punishment is not allowed in public;
23
7. After the completion of execution (by shot) then the body was handed over to
their family;
8. Before the execution (before the shot) within three days (three times twenty-
four hours) the competent authorities (prosecutors) must notify the defendant
to convey words or last message to someone who is considered as important
and necessary by the defendant;
9. After execution (by shot) then the prosecutor must make an official report on
the implementation of the capital punishment which had to be included in a
decree;
10. Chief of Police in the area concerned or appointed (the commissioned officer
of police) have to attend the execution, while for the defendant’s legal counsel
(defense) may attend the execution of the capital punishment if he wants or at
the request of the defendant.39
Capital punishment contained in the Indonesian penal code, inherited from the colonial government, and remained so when it was nationalized by Law No. 1 year 1946. Even after Indonesia's independence, several laws were issued later, it contained the threat of capital punishment therein. Thus, the reason that capital punishment was listed in W.v.S40 at the time imposed by the colonial government was based on, "the reason based on racial factors"41 may only apply in advance that will no longer present, because the government of the Republic of Indonesia also turned out to pass a law in addition to the Indonesian Indonesian penal code,
39 Ibid. Page. 179 - 181 40 WvS is abbreviation of Wetboek van Strafrecht, means Dutch Penal Code 41 J.E Sahetapy, Ancaman Pidana Mati Terhadap Pembunuhan Berencana, Bandung: Alumni, 1979, page. 29.
24
containing the threat of capital punishment. Therefore the threat of capital punishment in Indonesian legal system were divided into 2 (two), first is set in
Indonesian Indonesian penal code and the second is set in separated Laws other than the Indonesian Indonesian penal code.42
a) Capital Punishment in Indonesia Penal Code
Article 104 of the Indonesian penal code (treason against the president and
vice president);
Article 111 paragraph (2) Indonesian penal code (persuade foreign countries
to hostile or war if hostilities were carried out or finished war);
Article 124 paragraph (1) (aiding the enemy during the war);
Article 124 bis (causing or facilitate or encourage a riot);
Article 140 paragraph (3) (treason against the king or the head of other
countries which well-planned and resulted in death);
Article 340 of the Indonesian penal code (well-planned murder);
Article 365 paragraph (4) Indonesian penal code (theft with violence resulting
in serious injury or death);
Article 444 Indonesian penal code (piracy at sea, coast, and rivers that lead to
death).
42 Andi Hamzah dan A. Sumangelipu, Pidana mati di Indonesia, Jakarta: Ghalia Indonesia, 1983, page. 17.
25
In this regard, the Act No. 4 of 1976 Chapter XXIX Indonesian penal code(WvS) added a Chapter XXIX A about low crime and a crime against flight means consisting of Article 479 letter a up to 479 letter r.43
Containing the threat of capital punishment is in Article 479 k paragraph
(2) and in Article 479 o paragraph (2). In article 479 k paragraph (2) threatened with capital punishment or life imprisonment or as long as 20 years, anyone in the airplane with tort seize or retain appropriation will be controlling aircraft in flight
(Article 479 i) and with violence or threats of violence or threat in any other form, seize or retain deprivation or master control aircraft (article 479 j). If the act to cause the death of a person or the destruction of the aircraft.
In article 479 o paragraph (2) threatened with capital punishment or life imprisonment or as long as 20 years, whoever intentionally and unlawfully commit acts of violence against a person in the aircraft in flight (Article 479 i), damaging the aircraft in the service or causes damage to the aircraft (Article 479 m), placing or causing placed on board the aircraft in the service (article 479 n), if the act results in death of a person to or destruction of the aircraft.44 b) Capital Punishment in other Laws
Law No. 5 (Pnps) year 1959 concerning on the authority of Chief prosecutor/chief military prosecutor and aggravate the threat of punishment for criminal acts that endanger the implementation of food and clothing supplies. In article 2, threatened with capital punishment matters as the following:
43 Ibid. Page. 18 44 Ibid. Page. 18 – 19.
26
Whoever commits an offense set forth in the Emergency Law No. 7 of
1955 (Statute Book of 1955 No. 27), the offenses referred to in Rule Corruption
(Central War Ruler Regulation No. Prt / decree / 013/1958) and criminal offenses contained in title I and title II, Book Two Book criminal Law Act, by knowing or should have to suspect that the offense would hinder the implementation of government programs, namely:
1. Equipping the food and clothing of the people in the shortest possible time,
2. Organizing the security of the people and country,
3. Continuing the struggle against the economic and political imperialism (West
Irian).45
Would be punished by imprisonment for at least one year and a maximum of twenty years, or life imprisonment or capital punishment.
Law No. 21 (Prp) 1959 on threats to aggravate the punishment for economic crimes. Article 2 states about the threat of capital punishmnet as follows:
Jika tindak pidana yang dilakukan itu dapat menimbulkan kekacauan di bidang perekonomian dalam masyarakat, maka pelanggar dihukum dengan hukuman mati atau hukuman penjara sementara selama-lamanya dua puluh tahun dan hukuman denda yang besarnya 30 kali jumlah yang ditetapkan dalam undang-undang darurat tersebut dalam ayat (1).
45 Ibid. Page. 19.
27
(If the criminal act was done that could lead to chaos in the economy in society, offenders sentenced to death or life imprisonment while as long as twenty years and fines which amount to 30 times the amount set out in the emergency law mentioned in paragraph (1). )
In this case, the threat of sanctioned capital punishment for economic offenses committed with circumstances that aggravate punishment is emphasized in a situation that might lead to chaos in the economy in society.46
Law No. 31 of 1964 on Atomic Energy Basic Provisions, Article 23 contains the threat of capital punishment, which reads:
Barangsiapa dengan sengaja membuka rahasia yang dimaksud dalam pasal 22, dihukum dengan pidana mati atau pidana penjara seumur hidup atau pidana penjara sementara selama-lamanya.
(Whoever willfully divulge referred to in article 22, was sentenced to capital punishment or life imprisonment)
The meaning of Article 22 is to spreading secret information. In the explanation of Article 23 is said that because it is about the interests of the state, then the offense it was threatened with severe punishment.
46 Ibid. Page. 20.
28
Law number 11 (Pnps) of 1963 on the Eradication of Subversive Activity.
Article 13 contains the threat of capital punishment:
(1) Barangsiapa melakukan tindak pidana seperti yang dimaksudkan
dalam pasal 1 ayat (1) 1, 2, 3, 4, dan ayat (2) dipidana dengan
capital punishment, pidana penjara seumur hidup atau pidana
penjara selama-lamanya 20 (dua puluh) tahun;
(2) Barangsiapa melakukan tindak pidana subversi yang dimaksudkan
dalam pasal 1 ayat (1) angka 5 dipidana dengan capital
punishment, pidana penjara seumur hidup atau paling lama 20 (dua
puluh) tahun atau denda setinggi-tingginya 30 (tiga puluh juta)
rupiah.
(1) Whoever commits any of the offenses referred to in article 1,
paragraph (1) 1, 2, 3, 4, and paragraph (2) shall be punished with
capital punishment, life imprisonment or imprisonment forever 20
(twenty) year;
(2) Whoever commits the crime of subversion referred to in article 1,
paragraph (1) item 5 shall be subject to capital punishment, life
imprisonment or a maximum of 20 (twenty) years or a maximum
fine of 30 (thirty million) rupiah.47
47 Ibid. Page. 21.
29
Law no. 12 (DRT) 1951, on the Amendment Ordinanntie Tijdelijke
Bijzondere Strafbepalingen48 and earlier Republic of Indonesian laws, namely
Law No. 8 1948, in article 1 paragraph (1) containing the threat of capital punishment, concerning about the effort of without the right to enter, try to acquire, control of firearms, ammunition, and explosives.
Law no. 9 of 1976 on narcotics, article 36 paragraph (4) sub b threatened the capital punishment against the actions set out in article 23 paragraph (4) as follows: In against the right to take, send, transport, or distribute the narcotics.
While article 36, paragraph 5 sub b threatened with the capital punishment acts set out in article 23 paragraph (5) as follows: unlawfully importing, exporting, receiving, offering for sale, purchase, deliver, mediated in the sale or swap narcotics.49
B. Theories and Principles that Related to Capital Punishment
1. Theory of Purpose of Penal Sentences
Generally the theories of punishment (pemidanaan) could be divided into 2 groups, namely:
1. The absolute theory (retributive / vergeldings theorieen) ;
2. The relative theory (utilitarian / doeltheorieen).
48 The earlier law before Law no. 12 (drt) 1951 which regulates about firearms. 49 Ibid. Page. 21 – 22.
30
a) The Absolute Theory (Retributive / Vergeldings Theorieen)
According to the absolute theory, criminal act imposed on someone for a crime or a crime he has done (quia peccatum est). Punishment is an absolute result of a crime that must be exist as a retaliation against people who have committed crimes. In absolute theory, justification of crime lies in the existence or occurrence of the crime itself. According to Johannes Andenaes main goal (the primary) on offense in the absolute theory is to satisfy the claims of justice, while its effects are beneficial assessed as a secondary objective.50
The sights of absolute nature of the demands of justice that is seen clearly in the opinion of Immanuel Kant in his book as "Philosophy of Law" as follows:
….. Pidana tidak pernah dilaksanakan semata-mata sebagai sarana untuk mempromosikan tujuan / kebaikan lain, baik bagi si pelaku itu sendiri maupun bagi masyarakat, tetapi dalam semua hal harus dikenakan hanya karena orang yang bersangkutan telah melakukan kejahatan.
Bahkan walaupun seluruh anggota masyarakat sepakat untuk menghancurkan dirinya sendiri (membubarkan masyarakatnya) pembunuh terakhir yang masih berada di dalam penjara harus di pidana mati sebelum resolusi / keputusan pembubaran masyarakat itu dilaksanakan. Hal ini harus dilakukan karena setiap orang seharusnya menerima ganjaran dari
50 Muladi and Barda Nawawi, Op.cit., page. 10 - 11.
31
perbuatannya, dan perasaan balas dendam tidak boleh tetap ada pada anggota masyarakat, karena apabila tidak demikian mereka semua dapat dipandang sebagai orang yang ikut ambil bagian dalam pembunuhan itu yang merupakan pelanggaran terhadap keadilan umum.
Punishment never implemented solely as a means to promote the objectives
/ other consideration, both for the offender and for society itself, but in all cases to be imposed only because the person concerned has committed a crime.
Even though all members of society agree to destroy itself (dissolve society) last murderer remaining in prison should be in capital punishment before the resolution / decision to dissolve the society was implemented. This must be done for each person should receive a reward of his deeds, and the feeling of revenge should not remain with the members of the community, because if it were not so they can all be seen as people who took part in the murder in violation of the natural justice.
Therefore, Immanuel Kant concluded that crime is a decency demands.
Kant saw the criminal as Kategorische Imperatief, means a person to be convicted by the judge because he had committed a crime.51 According to Immanuel Kant standpoint, the criminal is not a means to achieve a goal, but rather reflect a justice (uitdrukking van de gerechtigheid).
Besides Kant, there is another well-known theorist who concern to examine the absolute theory, he is Hegel. He argued that the criminal is a logical necessity as a consequence of the crime. Because crime is a denial acts against the rule of
51 Muladi and Barda Nawawi, Op.cit., page. 11.
32
law state in realization of moral ideals, then the criminal is Negotiation der
Negation (peniadaan atau pengingkaran terhadap pengingkaran) (negation or denial to denial).
Hegel's theory known as quasi-mathematic, namely:
Wrong being (crime) is the negation of right; and
Punishment is the negation of that negation
According to Nigel Walker, the adherents of retributive theory can also be divided into several categories, namely:
1. Adherents purely retributive theory (the pure retributivist) is found, the
punishment must match or commensurate with the mistake by the offender.
2. Adherents of the theory of retributive impure (with modifications) which can
also be divided into:
a. Adherents of the theory of retributive Limited (the limiting retributivist)
argue: no punishment should fit / commensurate with the error; it's just not
exceed any commensurate with the guilt of the accused.
b. Adherents of the theory of retributive distributive (Retribution in
distribution), abbreviated as distributive theory, which argues about:
punishment should not be imposed on the innocent, but punishment does
not have to match / equivalent and restricted by mistake. The principle of
no punishment without fault in that respect, but it is possible the existence
of exceptions, for example in the case of strict liability.52
52 Muladi and Barda Nawawi, Op.cit., page. 12.
33
Explained farther by Nigel Walker that only the first group alone (the pure retributivist) that its reasons or justification for the imposition punishment.
Therefore, this class can be called punishers group (adherents or criminal prosecution theory). While limited retributive theorist and distributive theorists do not ask the reasons for the imposition of criminal, but propose principles for restriction-criminal.
In addition, according to Nigel Walker two parties closer to understanding non-retributive. Most of the Articles in Indonesian penal code drawn up in accordance with the adherents of the limiting retributivist namely by setting the maximum punishment as an upper limit, without requiring the court to impose the maximum limit.
In the book of John Kaplan, Retribution theory is distinguished into two (2) theory, namely:
a. The revenge theory; and
b. The expiation theory.53
According to John Kaplan both of these theories is actually no different, depending on the way people think at the time that if a criminal convict was dropped because we owed something to him or because he owed something to us.
Retaliation implies that the villain debt has been paid back (the criminal is paid back) while redemption implies that the criminals pay back its debts (the
53 Muladi and Barda Nawawi, Op.cit., page. 13.
34
criminal pays back). In the theory of retaliation for example say: if you have wounded X, then we will hurt you.54
In the theory of redemption, value-based paradigm. The value in question is the balance between the values taken by the perpetrators of a person, with a value that must be redeemed as return on infringement which has been committed by the offender.
Johannes Andenaes argues, that Retribution or atonement (redemption) is not the same as revenge. Revenge is a retaliation that seeks to satisfy the desire of revenge of the majority of the victims or others who are sympathetic to him; retribution or atonement while not trying to calm or eliminate the emotions of the victims but rather to satisfy the demands of justice.
According to J. Andenaes is true that historically or psychologically there is a close relationship between revenge with punishment. Meanwhile, in
Netherlands, Leo Polak discussed extensively on the issue of retaliation in the application of the penalty by stating that the similarity between all humans carry a result of that happiness and suffering should be shared between them equally.
Each crime is considered as an attempt to harm the suffering of this division will charge hypothesis (hypothetisch-leed) to each resident who respect the law, which is poured into the maximum threatened punishment against crime. On the other hand Polak stated, the advantages previously obtained a criminal to be objectified.
Thus it appears that the theory was called as Objectiverings Theorie.55
54 Ibid. 55 Ibid. Page. 14.
35
According to Prof. Sudarto, the existence of the classical retaliation theorists was no longer exist, in the sense that the punishment is a necessity for the sake of mere justice. There are some modern retaliation theorists such as: van
Bemmelen, Pompe, and Enschede.
In this case, the retaliation is not the main objective but rather as a limitation in maintaining the balance between action and punishment. As applied to the principle of non-Ultra Petita, judge who will sentence imposed to the perpetrator to establish the limits of punishment and without exceeding the limits of perpetrator’s wrongacts.
Van Bemmelen stated that prevention of vigilantism (vermijding van eigenrichting) is an important function in the application of the criminal law as the fulfillment of a desire for retaliation (tegemoetkoming aan de vergeldingsbehoefte).
However, the suffering caused by the imposition of punishment should be restricted within the limits of the most narrow and punishment should contribute to the process of readjustment condemned the lives of everyday people (special prevention) in addition to the severity of a sentence may not exceed the guilt of the accused even by reasons of any general prevention; in this case the retaliation has a negative nature.
According to Pompe, retaliation is in the sense of a positive and constructive, and not a thing in the sense that without the benefit of the viewpoint of the adherents of anti-retaliation.
CHR. J. Enschede considers retaliation as the upper limit (bovengrens) of the severity of a punishment. However, a retaliation is not necessarily always be
36
the demands and the severity of environmental action ruling in individual freedom is determined by the demands of expediency within the limits of retaliation.56
b) The Relative Theory (Utilitarian / Doeltheorieen).
According to the relative theory, punishment is not to satisfy the demands of absolute justice and retaliation itself does not contain a value, but only as a means to protect the interests of the community. Therefore, according to J.
Andenaes this theory can be called as the theory of social defense.
According to Nigel Walker, this theory is more appropriately called as the reductive point of view, because the justification of a sentence in accordance with this theory is to reduce the frequency of crime. Therefore, the adherents of this theory or can be referred to as a Reducers group (reductive theorists).
Punishment is not to just to take vengeance or redemption to the person who has committed a crime, but have certain goals that are beneficial. Therefore, this theory is called as Utilitarian theory, the justification of sentencing is on purpose. The imposed of sentence was not because people conduct a wrong-doing
(quia peccatum est), otherwise to prevent the people to not commit crime (ne peccetur). This is due to the significance of the speech of Seneca, a Roman philosopher as Nemo Prudens punit quia peccatum est, sed ne peccetur which means as: no reasonable man punishes because there has been a wrong doing, but in order that there should be no wrong-doing.57
56 Ibid. P. 15. 57 Ibid. P. 16.
37
Differences in characteristics between retributive theory and utilitarian theory put forward in detail by Karl O. Christiansen as follows:
1. On the retributive theory:
a. The purpose of punishment is solely for vengeance;
b. Vengeance is the main goal and it does not contain the means for other
purposes such as for public welfare or the other;
c. wrong-doing is the only condition for the existence of a criminal;
d. Punishment must be adapted to the fault of the offender;
e. Penalties in retroactive sight; this is a pure reproach and its purpose is
not to improve, educate, or rehabilitating the offender to return to
society.
2. On the utilitarian theory:
a. The purpose of punishment is prevention;
b. Prevention is not an end but only a means to achieve a higher goal which
is the welfare of the community;
c. Only violations of law that can be blamed on the perpetrator (e.g due to
deliberate or culpa) are eligible for the existence of a punishment;
d. Punishment should be set based on its purpose as a tool for crime
prevention;
e. Punishment is prospective and may contain elements of disapproval, but
both elements of disapproval or retaliation elements can not be accepted
38
if it does not help the prevention of crime for the benefit of people's
welfare.58
Regarding to the purpose of punishment for crime prevention, can be distinguished between the terms special prevention and general prevention or frequently also used on special terms deterrence and general deterrence.
With special deterrence, intended effect of the punishment against the convicted. Prevention of crime itself to be achieved by penalties, by affecting the behavior of the convicted to not commit criminal acts in the future. Therefore, the purpose of punishment is that the convicted turned into a better person and useful to society. Utilitarian theory, known as the Reformation or similar as
Rehabilitation theory.
With general deterrence, punishment intended to influence the society in general. This means that crime prevention was to be achieved by the punishment, by affecting the behavior of members of the public in general, to not commit such criminal acts.
According to Johannes Andenaes, there are three (3) forms of influence in terms of general deterrence, namely:
1. Effect of prevention;
2. Effect to strengthen prohibitions in accordance with morality;
3. Effect to encourage more law-abiding conduct.
J. Andenaes stated that the notion of general deterrence is not only covered the influence of preventivion (deterrent effect) but also includes the moral or
58 Ibid. P. 17.
39
social-pedagogical influence of punishment. The theory that emphasizes the intention of influence or prevent others from committing crimes, known as deterrence theory. With the narrow sense of deterrence, according to Andeneas statement before the understanding between the general prevention and general deterrence are not the same.59
In accordance with what was stated by J. Andenaes then, Van Veen found general prevention has 3 (three) functions, namely:
1. uphold the integrity (gezagshandhaving);
2. uphold the norms (normhandhaving);
3. Establish the norm (normvorming).
Van Bemmelen put the power to secure (de beveiligende werking) into group of the relative theory, in addition to the general prevention and special prevention understanding. In this case it is clarify the statement of the punishment of deprivation of freedom, which is more effective in safeguarding the public against crime, during these criminals are in prison.
c) Combined Theory (Verenigings Theorieen)
In addition to the traditional division of theories of sentencing as set forth above, namely absolute theory and relative theory, there is a theory that was born from the merger of both theories, called as the combined theory (verenigings theorieen).
59 Ibid. P. 18.
40
The first author who proposed the theory that is a combination of these earlier theories, is Pellegrino Rossi (1787-1848). Although he still considers to retaliation as the basis of a punishment and that punishment may not exceed an equitable retribution, but he insisted that the sentence has various influences including repair something broken (refer to someone who conduct a wrong-doing) in society and general prevention.
Several other writers who held that the sentence containing various combinations of interest include Binding, Merkel, Kohler, Richard Schmid, and
Beling. They also take into retaliation, general prevention, and improvement as the goal of a sentence.60
According to E. Utrecht related to general prevention and special prevention is that the general prevention aims to prevent people from doing violation. Special prevention is intended to avoid the convicted (dader) as not to violate in the future.
General prevention, emphasizing that criminal purpose is to maintain order in society from criminals disorders. By convict the offenders, it is expected to the other community members will not be committing a crime. In this case the punishment is meant to threaten the rest of society.61
Which can be classified in general prevention theory is the theory of von
Feurebach about psychologische dwang which reads:
60 Ibid. P. 19. 61 Djisman Samosir, S.H., M.H., Fungsi Pidana Penjara dalam Sistem Pemidanaan di Indonesia, Bandung: Binacipta, 1992, p. 12.
41
The threat of punishment that should be able to prevent people's intention to commit the crimes, in the sense that when people realize that having done some wrong-doing that they would be convicted, then they would have to leave their intention to not doing it.62
In relation to the purpose of sentences problem, here are some of the opinions expressed by scholars as follows:
1. According to Richard D. Schwartz and Jerome H. Skolnick believes that
criminal sanctions are intended to:
a. To prevent recidivism;
b. To deter from the performance of other similar acts;
c. To provide a channel for the expression of retaliatory motives.
2. According to John Kaplan
In addition to submitting their 4 (four) theory about the basics of the
justification of punishment (ie the theory of Retribution, Deterrence,
Incapacitation, and Rehabilitation), John Kaplan suggests the existence of
other policies on the justification of a sentence, such as:
a. Avoidance of blood feuds;
b. The educational effects;
c. The peace-keeping function.
3. According to Emile Durkheim
The function of pusihment is to create a possibility for the release of emotions
that are aroused by the crime.
62 Ibid. P. 13.
42
4. According to Fouconnet
…the conviction and the execution of the sentences is essentially a ceremonial
reaffirmation of the societal values that are violated and challenged by the
crime.63
5. According to Roger Hood
The objective of a punishment in addition to preventing the convict or other
potential parties to commit an offense, among others:
a. Reinforcing social values;
b. Allaying public fear of crime.
6. According to G. Peter Hoefnagels
The purpose of sentences are for:
a. Conflict resolution;
b. Influencing offenders and possibly other than offenders toward more or
less Law-conforming behavior.
7. According to R. Rijksen
Distinguish between the legal basis of the sentences and the purpose of
sentences. The legal basis of the sentences lies in retaliation for the error in the
retaliation is justification than the government's authority to punish
(strafbevoegdheid van de overheid).
In order to applied the authority, the authorities have the aim and goals as
explained by the opinion of R. Rijksen and other authors that van Veen,
63 Muladi and Barda Nawawi, Op.cit., page. 20.
43
Hulsman and Hoefnagels as the enforcement authority, enforcement of norms,
threatens, reconcile, affecting behavior and resolve conflict.64
8. According to Roeslan Saleh
In his book A reorientation in criminal law, Ruslan Saleh pointed out that in
fact there are two shafts that determine the lines of criminal law, namely:
a. In terms of prevention, criminal law is a law of sanction, an effort to be
able to defend the preservation of life, with the prevention of crime;
b. In terms of retaliation, criminal law is considered as well as the
determination of the law, is a correction and response to something that
is not legal.
Thus, essentially the punishment is always aiming to protect the public and
retaliation for an act that does not obey the law. Besides, punishment also
contain other things, that the expected punishment as something that will bring
harmony and punishment is an educational process to make the convict be
accepted back into society.65
9. According to Dr. Sahetapy
In his dissertation, entitled as Ancaman pidana mati terhadap pembunuhan
berencana (The Threats of Capital Punishment for Premeditated Murder), he
explained that the punishment aims to liberation. Punishment should be able to
let the perpetrator free from the wrong path he has taken. The significance of
liberation is not identical with the notion of rehabilitation and reform. The
sense of let the perpetrator free itself requires, the convicted person must not
64 Ibid. P. 21. 65 Ibid. P. 22.
44
only be freed from evil thoughts, but he should also be exempt from the social
reality in which he was shackled.
According to Dr. Sahetapy, it can not be denied in terms of punishment
knotted the element of suffering, but the aim of liberation by the suffer is not
merely be suffer that the convicted would be threaten or dying for a
vengeance, but the pain must be seen as a key of way out that liberates them
and gives the possibility to repent with full confidence.
The opinion of Dr. Sahetapy above in line with the opinion of Prof. Ter Heide
in his article titled as Vrijheid, over de zin van de starf. In these writings
argued that, no one does wrong-doing knowingly, which is understood about
the idea of Platonic determinism is not a pessimism one: humans could learn
and develop themselves.
If the suffer and punishment can encourage the development which is lead
them to the freedom, then the meaning of punishment is towards the human
freedom (de zin van de straf: de vrijheid van de mens).66
10. According to Bismar Siregar
In his paper entitled as, Tentang pemberian pidana (In Concern to the
Criminal Provision), at the National Criminal Law Reform Symposium in
Semarang in 1980, Bismar stated among other things:
….. yang pertama-tama patut diperhatikan dalam pemberian pidana, bagaimana
caranya agar hukuman badaniah mencapai sasaran, mengembalikan
keseimbangan yang telah terganggu akibat perbuatan si tertuduh, karena
66 Ibid. P. 23.
45
tujuan penghukuman tiada lain mewujudkan kedamaian dalam kehidupan
manusia.
(…..The first thing worth to be considered in the criminal administration is
how to keep the corporal punishment reached the goal, to restore the balance
that has been disrupted due to the actions of the accused, because the purpose
of punishment is nothing but achieve the concord in human life.)
d) Purpose of Penal Sentences
Consider to the importance of the purpose of a sentence as a guideline to imposed the punishment, as well in the Draft of Concept of Book I, Indonesian
Penal Code compiled by LPHN67 on 1972 defined in article 2 as follows:
(1) The purpose of sentences namely:
a. To prevent the perpetration of a criminal act for the sake of the aegis of
the state, society, and the population;
b. Order the convicted person to guide community members to repent and
become righteous good and useful;
c. To remove stains caused by a criminal act.
67 Abbreviation of Lembaga Pembinaan Hukum Nasional, institutions that help the Government to achieve a national legal order by taking various measures which include, among others, the preparation of legislation that is consistent with the state and the interests of the country and people by 1945, proposing legislation Dutch East Indies era that should be modified or revoked, translation and standardization of legal terms.
46
(2) Punishment is not intended to make suffer and are not allowed degrading the
human dignity.
In the Draft of Concept of Book I, Indonesian Penal Code year 1982/1983, the purposes of imposing sentences compiled as follows:
(1) Punishment aims to:
a. Prevent the perpetration of crime by enforcing the rule of law for the
sake of the community shelter;
b. Holding a correction against the convict and thus making it a better
person and useful, as well as being able to live in a society;
c. Resolve conflicts caused by a criminal act, restoring balance and bring a
sense of peace in society;
d. Liberating guilt on the convict.
(2) The punishment is not intended to impose for suffer and not allowed
degrading the human dignity.68
2. Schools of Criminal Law
The schools of the science of criminal law is not looking for a legal basis or justification of punishment, but trying to get a criminal justice system that is practical and useful. Based on the outline, these schools could be divided into two, namely the classical school and the modern school
68 Ibid. P. 24.
47
a) Classical school
This school is a reaction to the arbitrary ancient regime in the 18th
(eighteenth) century in France which cause a lot of legal uncertainty, insecurity in law and injustice.
This school is mainly composed of criminal law requires a systematic and focused to the rule of law. With the indeterministic view of freedom of the human will, this school emphasize the action and not to the person who commits an offense. The criminal law is criminal law desired action (daadstrafrecht).
The formulation of legislation (laws) and the unlawful conduct is a central point of concern in the criminal law. The conduct is defined in the abstract and it has been a mere juridical, regardless of the person who did it. The classical school is more inclined to be objectively against the criminal law of the personal characteristics of the offender.69
In terms of sentences and imposing sentence, the classical school at the beginning of its establishment, severely limiting the freedom of judges to establish the type of crime and punishment standards. Thus, in that day was common a system as the definite sentence which is very rigid, as seen in France Code 1791.
The role of the judges in determining the misconduct of the convicted was very limited. Punishment which specified by the law does not recognize the mitigation system or supererogation related to the age, the mental state of the
69 Ibid. P. 25.
48
perpetrator, the crimes in doing it earlier as well as the specific circumstances of the acts / crimes committed. France Code 1791 was not allow individualization in the implementation of punishment, in reaction to the judgment of unbridled discretion in the period before the French Revolution, then France Code 1791 attempt to resolve the issue through the application of punishment mechanically.
In a further development, this rigid system was abandoned because of the influence of the modern school and subsequently known as the Neo-Classic school. It emphasis on the demand of the misconduct of the perpetrators. This was seen in France Penal Code in 1810, which gave the power back to the judge in the judgment to allow the judges assign prison sentence between the minimum and maximum that has been specified in the law. This system is known as the indefinite sentance.70
Classical school rests on three (3) pillars, including:
1. Legality principle, which states that there is no punishment without
law, no criminal acts without law, and no prosecution without law;
2. Failure principle, which shows that people can only be convicted for
an offense he did intentionally or because of negligence;
3. Retaliation principle, (pengimbalan) this secular principle, which
contains a concrete way that the punishment is not imposed with a
view to achieving a result that is beneficial, but commensurate with
the severity of the acts committed.
70 Ibid. P. 26
49
2 (two) main scholars of classical school are Cesare Beccaria dan Jeremy
Bentham.
A. Cesare Beccaria
Born in Milan, Italy, March 15 1738. His writings are Dei delitti e delle pene, first published in Itay in 1764 (made under the age of 26 years) and was first published in England in 1767 under the title On Crimes and Punishment.
He died on 1794 just to produce one best paper. However, according to Sue
Titus Reid, the paper is a strong trigger of criminal law reform movement and the basis for changes in the practices of the criminal law. Furthermore proposed by
Reid: Cesare's biggest contribution is his conception that punsihment should fit the crime. This idea is the essential themes of the classical school.
Creation / paper of Beccaria is very important for the present; Eliott
Monochese states: no exaggeration to regard Beccaria's paper as very important in providing a way for the renewal of criminal law for a period of approximately the last two centuries. A short writings contain the renewal of modern criminal law, but the biggest influence on his paper, according to Stephen Schafer is the basics or foundation that is placed on changes related to criminal law.71
On behalf Beccaria wrote his paper, many philosophers and scholars who began to talk about the social contract. Scholars as Montesquieu, Voltaire and
Rousseau suggests substantial statements about human rights and the nature of society in general. Beccaria believed the concept of the social contract and
71 Ibid. P. 27
50
individual giving some freedom / independence to the country, so that people can live viable, therefore the law should only exist to protect / maintain the independence of the public, that possibly taken off by others.
The basic principles which must become the guideline for the legislation and as well as become the strength is the greatest happiness equally used or shared by the greatest number of people.The philosophy that influence him firmly is about the freedom of will. As it Expressed that human action is purposive and it's based on the understand hedonism, the principle of pleasure and distress, namely:
Human choose actions that will give pleasure and avoid actions that bring
trouble.
Therefore, punishment must be designed for each crime according to the level that would generate more trouble than pleasure to those who did the deed.
The point of view of the people in hedonistic acts is that the law must be formulated clearly and not give a chance to other interpretations by judges.72
Only the body of legislation that can specify a crime, which is written or formulated and does not giving any opportunity of interpretation by the judges.
The laws must be applied equally against all the people because there was no defense that allowed for any criminal acts. The state made the laws but does not give the power to determine who is violate the law. The third party is believed as the authorities in determining who is violate the laws, namely judges or groups of
72 Ibid. P. 28.
51
people whom in the same age like the accused. The judge merely a tool of the legislation, who determine one or whether or not a person conduct a wrong-doing and then specify the punishment.
Law becomes rigid and structured as well as impartial. As well as Beccaria philosophy is, let the pusnihment fit the crime to be applied, the scales of justice are not depended on personal prejudices which was not fair. Beccaria was not sure due to the severe and cruel punishment.
The main reason of the imposition of punishment is to ensure the survival of the community and to deter people from committing crimes. Prevention will come not from severe punsihment, but from the appropriate, prompt and inevitable punishment. According to Beccaria, capital punishment could not prevent the criminal acts and it was the brutality and violence. He also believe that capital punishment is an act of wasted human resources which is the main capital for countries.73 Then suggested that the capital punishment shake the moral sentiment in general. In fact convulsions was shown by the general hatred rather than implementing capital punishment and the results undermine public morality ought to be maintained or strengthened by law.
Furthermore Beccaria rejected capital punishment based on the teachings of social contract, he proposed that: no one has a natural right handed or block or sacrificing his own life, therefore, no one with the covenant can provide the right
73 Ibid. P. 29.
52
to life and death on himself on the king or ruler; therefore social contract could not justify capital punishment.
B. Jeremy Bentham
The British philosopher who is a highly trained in the field of law but never do the law in practice. Bentham classified as adherents of the Utilitarian hedonist.
Among his ideas, his most well-known advice namely the greatest good must go to the greatest number. And one of his theory that is very important is about felicific calculus, namely: that human beings are rational creatures who would consciously choose pleasure and avoid pain. Therefore a punishment must be specified on each crime in such a way that the tribulation will be more severe than the pleasure that caused by the crime.74
Clearly instances cited by Bentham in accordance with the idea of
Beccaria’s philosophy about let the punishment fit the crime.
Bentham is an armchair thinker who always look a wrong-doing in abstract.
In fact he completely failed to look the criminals as human beings, as a living thing, a complex things, with vary personalities.
But in accordance with Beccaria, he was against the status quo and struggling with a fierce for criminal law reform. He saw a new ethical principles regarding social control, which is a method of checking the actions of people according to a new ethical principles. The principle is called Utilitarianism, namely where an act is not judged by things that are absolute (justice, truth, etc)
74 Ibid. P. 30.
53
are irrational, but by a system that can be tested, which is the greatest happiness for the greatest number, or briefly the greatest happiness.
Bentham does not explain the basis of the theory of the principle that he has mention before and not also explain how this principle can be measured objectively and empirically. As Beccaria, Bentham also sure to the doctrine of the free will, although Bentham hinting toward the theory of the performances patterned (the theory of learned behavior) as the explanation of the criminal acts.
Bentham proposed that the purposes of punishment are:
1) To prevent all offenses;
2) To prevent the worst offenses;
3) To keep down mischief; and
4) To act the least expense.
Bentham make exceptions on severe punishment because its influence which is reforming effect, but he acknowledged that it must be accepted by the populist before being treated. The criminal law should not be used as a retaliation against the criminals, but only for the purpose of preventing crime.75
b) Modern School
Modern school or known as positive school established in the 19th century.
In determining the causes of crime using the method of the natural sciences and
75 Ibid. P. 31.
54
intends to immediately approached and positively affect criminals as far as he could still be improved.
According to modern school, someone's conduct can not be seen in the abstract from the point of view of the juridical solely regardless of who does it, but should be seen concretely that in reality the man's actions were influenced by the nature of his personal, biological factors, and environmental factors of society.
This understanding starts in view of determinism, because human beings are not have free will, but influenced by the nature and the environment, then it can not be blamed or accountable and punished. This school rejected the view of reprisals by mistake subjective.
Liability based on the person's fault, it should be replaced by the dangerous nature of the convicted (etat dangereux). Form of the responsibility to the convicted is more action for the protection of society. Punishment must remain oriented on the properties of the convicted, preferably also the individualization of punishment aimed at resocialization held by the convicted.76 Modern school was spearheaded by Lombroso, Lacassagne and Ferri. In the latest day in the well- known by their success to be chairing a committee who have to be responsible to draft the manuscript of Italian Criminal Code. This draft leaves all wrong-doing term and replacing it with the notion of dangerousness to society.
The modern view that Ferri want to embed in the draft in fact in Italy is not acceptable, but it is accepted and taken as a source for the preparation of the
76 Ibid. P. 32.
55
Criminal Code of Yugoslavia and the Fundamentals of Criminal Legislation of the
Soviet Union in 1958.
The journey of the pioneers of modern school, followed by Von Liszt
(German, 1851-1919), A. Prins. (Belgian, 1845-1919) and Van Hamel (Dutch
1842-1917) who in 1888 they jointly founded the Union – Internationale de Droit
Penal / Internationale Kriminalistische Vereinigung (IKV) or known as
International Association for Criminology.
Thoughts that influence the foundation of the Union activities are as follows:
1. The main function of criminal law is to fight crime as a symptom of
society.
2. Criminalistics and criminal law legislation must consider the results of
anthropological and sociological research.
3. Punishment is one of the most powerful tools owned by the state to fight
crime. But punishment is not the only tool, so that the punishment should
not be applied separately, but always in combination with other social
measures, particularly in combination with preventive action.77
After World War I, IKV was discontinued and instead established 3 (three) international association, namely:
1. de Association Internationale de Droit penal (1924)
With a starting point on comparative law, this association dealing
with issues of criminal law;
2. de Societe Internationale de Criminologie (1937)
77 Ibid. P. 33.
56
The association is mainly concerned with criminology problems,
especially problems Recidive and Recidivism;
3. de Societe Internationale de Defense Sociale (1949)
This association starts from the protection of society against
criminal individuals; handle all kinds of problems, both matters of
criminal law and criminology problems and in addition it is also
reviewing these issues from the point of protection of individuals
against state power.
The three organizations sometimes hold a congress, even before the IKV established. Since 1972 held international congresses on issues penitentiair. The congress conducted as a semi-formal meeting, as the initiative taken either by private persons as well as by various governments, as well as on behalf of their respective governments finance committee who run the organization at that congress items, namely de Commission Internationale Penitentiaire. In 1928 its name was changed to the Commission Internationale Penal et
Penitentiaire (C.I.P.P.).
After 1950 those tasks were taken over by the Social Defense of the United
Nations that hold a congress every 5 (five) years. In the years after World War II, modern school evolved into social defense movement. The famous figures from the social defense movement is Filippo Gramatica who founded the study-center of social defense in Genoa on 1945.78
78 Ibid. P. 34.
57
In the meantime also organized the first International Congress of Social defense in San Remo. Then in 1948 achieved international recognition to this movement as the formation of a section of the United Nations concerning the institution of the social defense section of the United Nation. The main purpose of this institution is the prevention of crime and the treatment of the offenders.
The second International Congress on social protection held in Liege in
1949 that attracted the attention widely and in result for the establishment of the international society of social defense by appointed Gramatica, as its chairman.
After the second congress on 1949, this social defense movement is divided into two concepts, namely:
1. Radical conception (extremist), and
2. Moderate conception (reformist).
1) Radical Conception (Extremist)
This conception pioneered and maintained by Filippo Gramatica, his personal views have been put forward before World War II in his article titled
Subjective Criminal Law. Since 1945 he expanded his theory in a series of articles, monographs and lectures, and some of them are important published in
1947 in the Rivista di difesa sociale.79 One of writings that attract a lot of attention and also raises doubts is La lotta contra la pena (the fight against punishment).80
79 Italian language for The Journal of social defense. 80 Ibid. P. 35.
58
According to Gramatica social protection law should replace the existing criminal law. The main objective of social protection law is to integrate these individuals into the social order and not a judgment on his actions. Social protection law required the abolition of punishment liability (fault) and was replaced by the notion of anti-social acts.
2) Moderate conception (Reformist)
This conception initiated by Marc Ancel calling this movement as a defense sociale nouvelle (new social defense). Movement is aimed at integrating ideas or conceptions of protection of society into a new conception of criminal law.
According to Marc Ancel every society requires its existing social order, including a set of regulations that not only complies with the requirements for the life of society, but also in accordance with the aspirations of society in general.81
Therefore, the role of the criminal law itself required to solve a criminal disputed in a legal system. Protection of individuals and society depends on the certain formulation of the criminal law and it is just as important as the life of society itself.
Therefore, the criminal justice system, crime, and the judge's assessment of the offender in relation to its legal nature, as well as related to crime, need to be considered in a well-maintained by the institutions. However, the use of the criminal justice system, this movement rejected the use of juridical fictions and
81 Ibid. P. 36.
59
juridical technique that regardless of social reality. This is a reaction to the excesses of legalism of classical and neo-classic school.
Marc Ancel rejected the view of classical and neo-classical school who treat the crime as a natural legal conception, and criminal sanctions is a necessary consequence of the offense under the law of the discipline; and also refused to take into consideration that the purpose of punishment or other sanctions are the abctract restoration of the legal order.
According to Marc Ancel, wrong-doing or evil conduct (called as crime in
KUHP) is a human and social problems that can not easily be forced to be putted into the formulation of a rule of law.82
In this case, it does not mean that the criminal judge did not decide based on the law and shall reject the application of the criminal. Be recognized that the application of punishment based on legislation is an essential part of the duties of a judge, but M. Ancel denied that humanitarian issues and social problems of a criminal offense that can be solved or resolved overall by the operation of a conception of distributive justice in the abstract. This movement does not reject the concept of accountability, even the wisdom of criminal precisely contrary to the conception of individual responsibility.
According to Marc Ancel, the responsibility of individual freedom is the main driving force of the process of social re-adaptation.
He admitted that the problem of determinism and indeterminism is a philosophical problem beyond the scope of criminal provsions and criminal law.
However emphasized that modern penal policy which mostly requires individual
82 Ibid. P. 37.
60
freedom or somehow can not ignore the reality of the feelings of individuals and the community about the individual responsibility.
The main goal of any treatment of social re-adaptation should be directed to the improvement of the self-possession. The reaction to the anti-social acts precisely centered on the conception of individual responsibility. The responsibility is meant by Marc Ancel in contrast to the classical view that interpret it as the purely moral responsibility and in the other hand positivist view interpret it as a legal responsibility or objective view responsibility.83 The emphasis of responsibility by Marc Ancel is the feeling of moral obligation of the individual. In addition, to stimulate the idea of social responsibility or liability to the members of other communities and also encouraged him to be aware of social morality.
That understanding is a consequence of this movement, by looking at the crime as a humanity phenomenon, the crime is a manifestation of the personality of the perpetrator.
83 Ibid. P. 38.
61
Sue Titus Reid, distinguish classical school and modern school based on the following characteristics:
Table 1. Differences of Classical school and Positive school
Classical School Positive School 1. Legal definition of crime 1. Rejected legal definition
2. Let the punishment fit the Garofalo84 substituted
crime “natural crime”
3. Doctrine of free will 2. Let the punishment fit the
4. Capital punishment for criminal
some offenses 3. Doctrine of determinism
5. Anecdotal method; no 4. Abolition of the capital
empirical research punishment
6. Definite sentence 5. Empirical research: use of
the inductive method
6. Indeterminate sentence
In a statement proposed by Garofalo, the behaviors that have been classified by the legislator can not be a limiting factor of the crime. To explain why a person committed a crime, he proposed the concept of natural crime.85
84 Garofalo is a figure of the modern school. He states in this regard that "the legal definition of crime" simply describes the classification of the type of behavior that is carried out by lawmakers.
62
In this case, natural interpreted as something unconventional, something that is in human life in society. Free of the circumstances and the urgency of a particular time or a particular view of the legislator. Natural crime, describing the actions that the civilized society is recognized as a crime, and punishment is a tool to suppress it.
Let the punishment fit the crime point of view, is recognized as a major contribution of Beccaria and the theme of the classical school. But for Enrico
Ferri (one of the pioneers of modern school) it is being called as blind worship of punishment, which is expressly denied by him, because if its only done by the punishment, the behavior of the criminal act would not be better and the factors that cause the crime can not be eliminated.
According to Lombroso along each offender has different needs, is a dullness to apply the same punishment to all those who commit certain crimes.86
In this case Ferri also states that the doctrine of free will can not explain the person's behavior. Not the criminal who wants a crime, but a situation that encourages a person to do so. The situation in this case includes the personal situation, physical and moral. While the above environment make the perpetrators of criminal acts as the chain of causation, external and internal which determine him as a criminal. Ferri call this as the law of criminal saturation.87
85 Ibid. P. 39. 86 Ibid. P. 40. 87 Ibid. P. 41.
63
Raffaele Garofalo proposes capital punishment for those who commit criminal acts as a result of permanent psychological damage that makes them not feasible to live in society.
In this case Stephen Schafer stated that the birth of positive school in the late 18th century, symbolizing the era of faith has past and the scientific age has begun and it's based on inventions of the social sciences and natural sciences, as a cornerstone of the philosophy of individualization as well as the foundation coaching scientifically prisoners.
To illustrate the definite sentence can be seen in the French Penal Code in
1971, which implies that it is not allowed at all, for Judicial Discretion and the punishment must be applied equally to all offenders. Furthermore, the indeterminate sentence in accordance with the views Lombroso stating that different criminal has different needs, so a decision on the punishment handed to the court.88
In this case, the Laws only define alternative and minimum and a maximum which is allowed. Furthermore, the characteristics of the Neo-classical school, would be put forward as characteristics that are prepared by Vernon Fox as follows:
1. Modification of the doctrine of free will that can be affected by the pathology,
disability, insanity, or other circumstances.
2. Acceptance of any mitigaging-circumstances imposed either physical, mental
or environmental.
88 Ibid. P. 42.
64
3. Modification of the doctrine of punishment responsibility, to set a mitigation
of punishment with several responsibility in specific matters, for example,
mental disorder, underage, and other circumstances that may affect a person's
knowledge and intention at the time of the crime.
4. Allowable inclusion of expert testimony to determine the degree of
responsibility.
Howard Abadinsky argue about all the three schools with emphasis on the things mentioned below, namely: The views of the Classical, Neo-Classical, and
Modern Schools are important because they transcend their own time and continue to be applicable to contemporary issues in the criminal justice system of the twentieth century.89
C. Theory of Legal System (Lawrence Friedman)
Lawrence M. Friedman expressed that the effectivity and the absence of a legal enforcement depends on the 3 (three) elements of the legal systems, namely structure of law, substance of law and legal culture. Structure of law is related to the law enforcers, the substance of law consist of the existing laws and the legal culture is a living law which adopted in society.
1. Legal Structure
Concerning to legal structure Friedman explained:
89 Ibid. P. 43.
65
“To begin with, the legal sytem has the structure that is constantly changing. This is the structure of the legal system, its skeleton or framework, the durable part, the part that gives a kind of shape and definition to the whole. The structure of a legal system consist of elements of this kind: the number and size of courts; their jurisdiction, and modes of appeal from one court to another. Structure also means how the legislature is organized, how many members sit as a legislators, what president can (legally) do or not, what procedures the police department follow, and so on. Structure, in a way, is a kind of crosss section of the legal system, a kind of still photograph, with freezes the action.”90
The structure of the legal system consists of the following elements, the number and size of the court, its jurisdiction (including the types of cases they are authorized to examine), and procedures for appeal from the court to the higher courts. The structure also means how the legislature laid out, the matters which can be done by the president, there are procedures followed by the police and so on. So structures (legal structure) consists of existing legal institutions meant to run the existing legal instruments.
The structure is a pattern that shows how the law is executed in accordance to the formal provisions. This structure shows how the courts, legislators and agencies as well as the legal process executes and executed.91
The structure of the Indonesian legal system, including the structure of law enforcement institutions such as the police officers, prosecutor and court.92
90 Lawrence M. Friedman, American Law: An Introduction, New York: W. W. Norton & Company, 1984, page. 5. 91 Ibid. page 5. 92 Achmad Ali, Keterpurukan Hukum di Indonesia, Jakarta : Chalia Indonesia, 2002, p. 8.
66
2. Legal Substance
According to Friedman, the legal substance is:
Another aspect of the legal system is its substance. By this is meant the actual rules, norm, and behavioral patterns of people inside the system…
Substance also kown as the working patterns of the living law. Substance also means as product, that people within the legal system manufacture, the decision that people turn out and the new rules that people contrive. The stress here is on living law, not just rules in law books.
Another aspect of the legal system is its substance. What is meant by the substance are rules, norms, and patterns of human behavior who involve in the system. So the legal substance concerns to the existing legislation which has binding force and serve as a guideline for the law enforcers.93
3. Legal Culture
Friedman consider the legal culture as:
“The third component of a legal system is a legal culture. By this we mean people’s attitudes toward law and legal system their beliefs, values, ideas, and expectations. In other words, it is the part of the general culture, specifically, those aspects of general culture that concern the legal system. These ideas and opinion are, in a sense, what sets the legal process going… The legal culture, in other words, is the climinate of social thought and social force wicch determines
93 Lawrence M. Friedman, Op.cit., page. 5.
67
how law is used, avoided, or abused. Without legal culture, the legal system is inert… Another way to visualize the 3 (three) elements of law is to imagine legal structure as a kind of machine, legal substance is what the machine manufactures or does and the legal culture is whatever pr whoever decides to turn the machine on and off and determines how it will be used.”94
Legal culture is a human behavior (including the legal culture of law enforcement officers) towards the law and the legal system. As well as any arrangement of legal structure to run the rule of law which has been established and as well as any quality of legal substances created without the support of the legal culture by the people involved in the system and society, then the law enforcement will not run effectively.
Law as a tool to improve the society or called as a social engineering is just an idea that suppose to be realized by the law. To ensure the achievement of the legal function as the social engineering towards a better direction, then not only required the existence of law in the sense of rules or regulations, but also the guarantee on the embodiment of the rule of law into the practice of law, or in other words, guarantees the proper execution of the rule of law (law enforcement).
So the execution of the law is not only a function of the legislation alone, but bureaucratic activity executor as well.95
94 Ibid, page. 5. 95 Munir Fuady, Doktrin-Doktrin Modern dalam Corporate Law dan Eksistensinya dalam Hukum Indonesia, Bandung: Citra Aditya Bakti, page. 40.
CHAPTER III
THE IMPLEMENTATION OF CAPITAL
PUNISHMENT IN INDONESIA
A. Extra Ordinary Crimes based on Indonesian Law
The concept of extraordinary crime was a common concept in Indonesia.
Adopts from the concept of the most serious crime in Rome Statute and adjusted with the Indonesian legal system. The concept of extraordinary crime is common and wider concept in Indonesian legal system, then it developed wider and introduced into terrorism, corruption, drug abuse offenses, and child sexual abuse in legislations and Constitutional Court verdicts. The Constitutional Court exploits this concept for drug abuse offenses through their verdicts No. 2/PUU-V/2007 and
No. 3/PUU-V/2007 dated October 30th, 2007.
Adopting from the concept of the most serious crimes of international law which is described as the most violent crimes in humanity, and have limited crime’s classification and consequences. The crimes consider as very extraordinary and become international communities concern due to its self which causing a deeply shock the conscience of humanity and grave breaches threatens the peace, security, and wellbeing of the world.96
96 Vidya Prahassacitta, THE CONCEPT OF EXTRAORDINARY CRIME IN INDONESIA LEGAL SYSTEM: IS THE CONCEPT AN EFFECTIVE CRIMINAL POLICY?, Jakarta: Faculty Humanity, Major Business Law-Bina Nusantara University, 2016, page. 513.
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When this concept is introduced in Indonesia, some principles are modified with Indonesian criminal policy. Name of this concept then recognizes as the extraordinary crime. Then, some crimes like a gross violation of human right, corruption, terrorism, drug abuse offenses, and child sexual abuse offenses are defined as extraordinary crimes. Subsequently, some consequences of the implementation of the concept of extraordinary crimes are introduced an extraordinary measure for the eradication of those crimes.97
As the additional explanation of categorization of the most serious of the crime, Mark A Drumble has given his definition of the concept of the most serious crime as the very core of the most serious crime is conduct – planned, systematized, and organized – that targets large numbers of individuals based on their actual or perceived membership in a particular group that has become selected as a target on discriminatory grounds. From the definition, the most serious of the crime shall see in two related aspects, crime, and victim. First, the crime shall be held with the plan, systematic, and organize. Second, the victim shall be huge for some selected groups. Both aspects shall be fulfilled to meet the threshold of the most serious crimes.
Muladi has defined the concept of extraordinary crime as the crime that in criminology and victimology perfectives potentially to harm the interests of various dimensions, from the security order, systematic or organized, threatening political stability, future development, and others.
97 Ibid, page. 514.
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In accordance with corruption Romli Atmasasmita in 22th Seminar
Attorney Association in North Sumatra University 6 June 2015 has defined the concept of extraordinary crime from legal impact perfective as the massive and systemic crime. From both definitions, the concept of the extraordinary crime shall fulfill two elements, crime and impact. The crime shall be held with systematically and the impact shall be massive.
Therefore, categorization of gross violation of human right as extraordinary crime does meet the threshold of the most serious of crime but with limited types of crime. However, the concept of extraordinary crime is introduced for terrorism, corruption, drug abuse offenses, and child sexual abuse offenses.98
B. Case Position Related to the Implementation of Capital
Punishment in Indonesia
1. Narcotic – Bali Nine
(Myuran Sukumaran and Andrew Chan) April 2005, the Indonesian police officer received information from the Australian Federal Police that there is narcotics smuggling. 17 April 2005 - Nine Australians were arrested at Ngurah Rai Nine Australian citizens were arrested at Ngurah Rai Airport, Bali, on charges of attempting to smuggle more than eight kilograms of heroin out of Indonesia. Martin Stephens, Renae Lawrence, Scott Rush and Michael Czuga arrested at the airport with packages of heroin bind to their bodies.
98 Ibid, page. 515.
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Meanwhile, the other three suspects, Si Yi Chen, Tan Duc Thanh Nguyen and Matthew Norman was arrested at Maslati Hotel, near Kuta Beach, by possess of 300 grams of heroin. Andrew Chan and Myuran Sukumaran was arrested at the Ngurah Rai airport because they are related to the seven people arrested before them.99 The Australian Federal Police (AFP) confirmed they provide the information to the Indonesian police to investigate the matter of heroin smuggling. October 2005, The trial begins October 11, 2005 was the trial for Michael Czuga and Myuran Sukumaran, it was held in Denpasar District Court. The next day on October 12, 2005 the trial was held for Matthew Norman, Si Yi Chen and Tan Duch Thanh Nguyen. On October 13, 2005 was the day of trial for Andrew Chan and Scott Rush. Then on October 14, 2005 the trial for Renae Lawrence was held. February 14, 2005 Andrew Chan and Myuran Sukumaran were found guilty with a sentence of capital punishment. They were considered to have provided money, airfare, and hotel to the smugglers. Meanwhile, Michael Czuga and Martin Stephens sentenced to life imprisonment. The next day on February 15, 2005 Matthew Norman, Si Yi Chen and Tan Duc Thanh Nguyen found guilty with a sentence of life imprisonment. February, 2006 - The suspects sentenced February 13, 2006 Renae Lawrence and Scott Rush was sentenced to life imprisonment. The judge said there was no evidence to support the statement that they had been forced to deliver the narcotics by the threat as their family members would be killed. Previously, the penalty for Lawrence was in prison for 20 years.100
99Erwin Natosmal Oemar dan Todung Mulya Lubis, Unfair-Trial: Memaknai Akrobat Putusan Hukuman Mati (Kasus Andrew Chan dan Myuran Sukumaran), Jakarta: IMPARSIAL., The Indonesian Human Rights Monitor, Chapter. X, page. 200. 100 Kompas, Op.Cit., retrieved on January 24, 2017.
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In the District Court of Denpasar, Chan and Sukumaran was charged by the article 82 paragraph (3) letter a of Law No. 22 Year 1997 on Narcotics related exporting narcotics group I in organized manner. In the Decision No.624/Pid.B/2005/PN.Dps and No. 626/PID.B/2005/PN.DPS, Denpasar District Court decided: (1) Declare Andrew Chan and Myuran Sukumaran legally proven and convincingly guilty of committing a crime without rights and illegally exporting the narcotics group I conducted in an organized manner and without right of possession of narcotics group I which categorized as not plant; (2) Declare the sentences against the defendant, named Andrew Chan and Myuran Sukumaran to be imposed by the capital punishment. 20 April 2006 In Decision No. 18/Pid.B/2006/PT.Dps and No.22/PID.B/2006/PT.DPS, the Denpasar High Court Decided to give the approval of the appeal request the defendant and revise the Denpasar District Court's decision regarding the qualification of criminal acts just to read as follows: (1) Declare Andrew Chan and Myuran Sukumaran legally proven and convincingly guilty of committing a crime without rights and illegally exporting the narcotics group I conducted in an organized manner and without right of possession of narcotics group I which categorized as not plant; (2) Affirm the previous decision of Denpasar District Courtfor the rest matters. August 16, 2006 By the decision of the Supreme Court No. 1690 K/PID/2006 and the decision No. 1693 K/PID/2006, the Supreme Court decided to reject the request of Cassation of Andrew Chan and Myuran Sukumaran. Tuesday, May 10, 2011 H.M Imron Anwari, as Chairman of the Council, H. Achmad Yamanie, SH, M.H. and H. Suwardi, supreme judges as panel members, in decision No. 37 PK/Pid.Sus/2011 and No. 38 PK/PID.SUS/2011 decided to reject the application for judicial review of the Judicial Review applicants / the Convicts. December 30, 2014
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Through the Presidential Decree No. 30/G/2014, President Jokowi decided to reject the clemency which filed by Myuran Sukumaran. 17 January 2015 Through Presidential Decree No. 9/G/2015, President Jokowi refused the clemency, filed by Andrew Chan. February 16, 2015 The attorney of Andrew and Myuran stated to the media that they had reported the panel of judges who examine the case to the Judicial Commission of alleged bribery, this report is based on the statements made by the former attorney of Andrew and Myuran that convey their demand for money, requested by the Panel of Judges who examine cases and the presence of intervening in the decision. 27 April 2015 The Judicial Commission has also issued an official statement related to reports of alleged bribery reported by the attorney Myuran Sukumaran and Andrew Chan by the register number 0099/L/KY/III/2015. 1 April 2015 Through the Decision no. 29/PLW/2015/PTUN.JKT., The Administrative Court rejected the appeal of resistance, filed by Andrew Chan and Myuran Sukumaran against the provisions of the Chairman of the Administrative Court concerning the rejection of the lawsuit which filed by the Plaintiff. Wednesday early morning, April 29, 2015 Andrew and Myuran with six others who sentenced with the capital punishment were executed in Nusa Kambangan, Cilacap, Central Java.
2. Terrorism – Bali Bombing 2002
On October 12, 2002 at 11:05 pm101
101 Bali is an Island in Indonesia, classified in Indonesia Central Time which 8 hours in advance of the Greenwich Mean Time (UTC+8) of GMT.
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In Paddy’s club and the Sari Club in Legian street, Kuta Bali where lot of foreigners whom visit the place. There was happened a suicide bomb attack carried by the offender to Paddy’s club, the manifold TNT bomb weighing 1 kg. Meanwhile, the bomb in front of the Sari club by RDX bomb manifold weighing 50-150 kg is located inside a car and listed 47 buildings were destroyed, 202 people died (including 88 Australians, 38 Indonesians, and people from more than 20 other nationalities)102 and more than 200 people suffer of wounds and injuries.103 10 minutes later, at 11:15 pm Occurred a similar incident by using a bomb manifold as TNT, weighing 0.5 kg, it detonated at Renon, near to the office of the US Consulate and there was no victims. They used a bomb which controlled remotely by Dulmatin from afar.104 October 16, 2002 The examination of witnesses for the case of terrorism was began. More than 50 people have been interogated in the Bali District Police. To assist the Police, the Australian Forensic Team deployed to identify the bodies. October 29, 2002 Megawati Soekarnoputri as the President continues to urge the police to resolve the case that disgrace the reputation of Indonesia. She gave the deadline, that the case should be completed in November 2002. October 30, 2002 Bali bomber began to emerge. Three sketches of suspects being published. November 4, 2002 Police have obtained the name and identity of the suspect. They claimed to have known hideout of place of the suspects. November 5, 2002
102 Bali death toll set at 202. BBC News., 19 February 2003. Retrieved January 28, 2017. http://news.bbc.co.uk/2/hi/asia-pacific/2778923.stm 103 Kronologi Bom Bali-Eksekusi Mati Amrozi Cs., 09 November 2008, Retrieved January 28, 2017. http://www.republika.co.id/berita/shortlink/12733 104 Ibid.
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One of the main suspects was arrested. Amrozi bin Nurhasyim was arrested at his home in a village known as Tenggulun, Lamongan, East Java. November 6, 2002 10 people allegedly related to the case were arrested in several separate places in Java. In the same day, Amrozi was flown to Bali and at 8:52 pm (UTC + 7) of GMT, Amrozy arrived at Ngurah Rai Airport. November 7, 2002 A sketch of the perpetrator's face was re-published. Meanwhile Abu Bakar Ba'asyir was known has a relationship with Amrozi, denied. Ba'asyir assess Amrozi recognition when examined in the East Java Police is a government engineering and Indonesian Police Headquarters under the pressure from the United States. 8 November 2002 Official determination against Amrozi status as a suspect in a criminal act of terrorism. 9 November 2002 The forensic team found the residues of materials that are identical to the elements of the detonator at the scene. While Gen. Dai Bachtiar, Chief of Police at the time said Omar al-Farouq testimony about the involvement of Ustad Abu Bakar Ba'asyir and Amrozi is valid. November 10, 2002 Amrozi revealed five people who become the main detonation team. Ali Imron, Ali Fauzi, Qomaruddin (executor in Paddy's Club and cider Club), while M Gufron and Mubarok has the role to help the preparation of the detonation. Police were hunting Mohammad Gufron (the old brother of Amrozi), Ali Imron (the young brother of Amrozi), Ari Fauzi (another brother of Amrozi's mother) and Tafsir (the old brother in law of Amrozi). Tafsir considered to know the intricacies of the car used in the conduct of detonation, namely Mitsubishi L-300 and lend his house to be used by Amrozi as a workshop. November 11, 2002
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Qomaruddin was arrested by the police joint team, he is a forestry officer whom a close friend of Amrozi in Tenggulun village, Solokuro, Lamongan. Qomaruddin allegedly helped him to assemble the detonator. November 17, 2002 Imam Samudra, Idris and Dulmatin were suspected as the detonator assemblers of Bali bombing I. Together with Ali Imron, Umar alias Wayan, and Umar alias Patek. November 26, 2002 Imam Samudra, arrested at Port of Merak on board of the bus named as Kurnia. December 1, 2002 Bali Bombing Investigation Team reveal the mastermind of the Bali bombing as many as four people, one of them was the members of Jemaah Islamiah. December 3, 2002 Ali Gufron alias Muklas (Amrozi's brother) was arrested in Klaten, Central Java. December 4, 2002 Some of the Bali bombing I suspects, arrested in Klaten, Solo, Central Java, among them were Ali Imron (Amrozi’s brother), Rahmat, and Hermiyanto. Some women alleged as the wife of the suspects were also arrested. December 16, 2002 Police arrested Atang, son of Ashuri, who is still a high school student in Lamongan. The team also managed to find 20 boxes containing chemicals materials of potassium chlorate weighing 1 (one) ton in the empty house belongs to Ashuri, in the village of Banjarwati, District Paciran, Lamongan. This chemical stuffs allegedly belongs to Amrozi. December 18, 2002 The Joint Investigation Team of Indonesia - Australia Police open up and reveal the Solo Documents, a document which is owned by Ali Gufron. In the document contains the ordinances to make weapons, poisons and bombs. It also contains the books that related to the Jemaah Islamiah and the topography
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of an area as well as a number of action plans that will be done in the near future. January 6, 2003 Amrozi case file handed to the High Prosecutor General Bali. January 16, 2003 Ali Imron 14 suspects arrested in Samarinda arriving in Bali. February 8, 2003 Reconstruction of the event of Bali bombing I. May 12, 2003 Amrozi’s first trial. June 2, 2003 Imam Samudra’s trial. June 30, 2003 Amrozi demanded by the capital punishment. July 7, 2003 Amrozi was sentenced by capital punishment. July 28, 2003 Imam Samudra demanded by the capital punishment. September 10, 2003 Imam Samudra was sentenced by capital punishment. August 28, 2003 Ali Gufron alias Muklas demanded by the capital punishment. October 2, 2003 Ali Gufron was sentenced by capital punishment. January 30, 2007 Amrozi’s first extraordinary appeal (PK)105 refused. January 30, 2008 Applied for the second extraordinary appeal but refused. May 1, 2008
105 PK is the abbreviation of Peninjauan Kembali means extraordinary appeal that can be done to a verdict which is have the legal binding force based on cassation decision.
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Applied for the third judicial review but got another refusal. October 21, 2008 Constitutional Court refused the Judicial Review towards Law No. 2/Pnps/1964 concerning the procedure of capital punishment execution, filed by Amrozi Cs. November 9, 2008 Amrozi Cs. were executed on Nusakambangan.
Table 2. Compilation of Bali Bombers Decision106
DECISION DECISION EXTRA DECISION OF OF OF NO NAME DEMAND DENPASAR DISTRICT DENPASAR SUPREME ORDINARY COURT HIGH COURT APPEAL COURT
Decision No. PK, Capital 167/PID.B/2003/PN.DPS Capital Capital Amrozi bin Capital 1 Punishment, Punishment, Punishment, Nurhasyim Capital punishment, Punishment, 30-6-2003 12-09- 2003 06-04- 2004 07-07-2003 6/12/2006
Decision No. PK, Capital Capital Capital Abdul Azis 203/PID.B/2003/PN.DPS Capital 2 alias Imam Punishment, Punishment, Punishment, Capital punishment Samudra Punishment, 28-7-2003 06-10-2003 23-3-2004 10-9-2003 6/12/2006
Decision No. PK, Ali Capital 224/PID.B/2003/PN.DPS Capital Capital Ghufron Capital 3 Punishment, Punishment, Punishment, alias Capital punishment Punishment, Muklas 28-8-2003 9-12-2003 24-09-2004 2-10-2003 6/12/2006
106 Direktori Putusan: Mahkamah Agung Republik Indonesia, Pengadilan Negeri Denpasar, http://putusan.mahkamahagung.go.id/pengadilan/pn-denpasar., Retrieved on December 8, 2016.
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C. Capital Punishment in Malaysian Law
Malaysia is one of only 58 countries remaining in the world that retain the capital punishment for ordinary crimes.107 Malaysia’s criminal law provides for death by hanging in several types of offenses, which will be explained herein. The number of those convicted under such laws, the number sitting on death row, and the number and details of who have been executed are not made public.108 Instead, such estimates come mainly from summary reports by the Malaysian government itself, and various NGOs.
In April 2011, Malaysia’s Home Minister stated that 441 people had (at that time) been executed since 1960 and that 696 prisoners were on death row.109 The majority (479 or 69%) of these death sentences were reportedly imposed under the
1952 Dangerous Drugs Act, which, as discussed below, leaves little to no room for discretion in its application. As of November 4, 2012, the number of people on death row was reported to be about 900.110
107Amnesty International, Abolitionist and Retentionist Countries, 2013, http://www.amnesty.org/en/deathpenalty/abolitionist-and-retentionist-countries. Retrieved on February 10, 2017. 108 Working Group on Universal Periodic Review, Universal Periodic Review of Malaysia, United Nations Human Rights Council, 27 October 2008, http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/MY/A_HRC_WG6_4_MYS_3_E.PDF. Retrieved on February 10, 2017. 109Amnesty International, The State of the World’s Human Rights: Malaysia, 2012, http://www.amnesty.org/en/region/malaysia/report-2012#section-26-8, Retrieved on February 10, 2017. 110 Charles Hector, Impose immediate moratorium on all executions, Free Malaysia Today, 4 November 2012, http://www.freemalaysiatoday.com/category/opinion/2012/11/04/imposed-immediate-moratorium- on-allexecutions/., Retrieved on February 10, 2017.
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It has been estimated that 108 people were sentenced to death in 2011 alone111, compared to at least 114 in 2010 and at least 68 in 2009. The number of executions pales in comparison. The last confirmed execution took place in 2010, and that was reportedly the only execution to take place during the entire year.112
1. Capital Punisment Implementation in Malaysia
Malaysia’s various criminal statutes provide for either mandatory or discretionary death sentences, depending on the type of offense. The types of crimes where the capital punishment is a mandatory punishment include: murder; drug trafficking; certain types of possession(s) and/or discharging(s) of firearms in a scheduled offence (i.e., assisted suicide); and certain kinds of treason. The capital punishment is discretionary for other types of treason; consorting with a person carrying or having possession of arms or explosives; and kidnapping.
Death sentences in Malaysia are carried out by hanging.113
111 Charles Hector, interview by Bill Bainbridge, Hundreds on Death Row in Malaysia, Radio Australia, 22 May 2013, http://www.radioaustralia.net.au/international/radio/program/connect-asia/hundreds-on-death-row- inmalaysia/948014., Retrieved on February 10, 2017. 112 Death Penalty Worldwide, Malaysia, 3 January 2013, http://www.deathpenaltyworldwide.org/country-searchpost.cfm?country=Malaysia., Retrieved on February 10, 2017. 113 The Advocates for Human Rights: an NGO with special consultative status; and Harm Reduction International: an NGO with special consultative status, 17th Session of the Working Group on the Universal Periodic Review United Nations Human Rights Council October 21, 2013 – November 1, 2013,
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a) Murder, Attempted Murder and Murder During Gang Robbery
Section 302 of the Malaysian Penal Code states that: Whoever commits murder shall be punished with death. For the discretionary imposition of the capital punishment for attempted murder, Section 307 of the Penal Code states that: Any person who causes hurt to any person by an act of attempted murder shall be imprisoned for up to 20 years.114 On November 1, 2012, a Malaysian
Court of Appeal upheld the conviction and death sentence of two men, Ong Tend
For and Chew Ah Lan @ Chew Kai Thong, charged in the 2004 killing of a businessman. On appeal, the Federal Court rejected two main arguments for reversal, one relating to the alleged failure of a High Court judge to recuse himself from presiding over the trial, and the second relating to the locus standi of a
Myanmar interpreter who was interpreting the testimony of an illegal immigrant from Myanmar.115
Murders resulting from gang robbery are also punished by a discretionary capital punishment. Under Section 396 of the Penal Code, where five or more people are: Conjointly committing gang-robbery, and any one of them commits murder, all those conjointly committing the robbery “shall by punished with death
http://www.theadvocatesforhumanrights.org/uploads/malaysia_hrc_death_penalty_october_2013.p df., Retrieved on February 10, 2017. 114 Malaysian Penal Code at Section 307(1). 115 Bernama, Death sentence on duo upheld for murder of businessman, Malaysia Insider, 1 November 2012, http://www.themalaysianinsider.com/malaysia/article/death-sentence-on-duo- upheld-for-murder-of-businessman., Retrieved on February 10, 2017.
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or imprisonment for a term which may extend to twenty years, and, where the punishment is not death, shall also be liable to whipping.116 b) Drug Trafficking
Malaysia’s criminal code, through the Act 234, Dangerous Drug Act of
1952 or known as Drug Act, imposes a mandatory capital punisment where someone is found guilty of drug trafficking. The definition of trafficking is depends on the amount of drugs found in the accused’s possession, and the amount of drugs that will trigger the trafficking label, in turn, varies by the type of drug. For amounts smaller than what constitutes trafficking, the Drug Act provides for both prison terms and physical punishment.
Under Section 37(da), if a given drug is found in a prohibitively large amount, that possession shall be presumed, until the contrary is proved, to be trafficking in the said drug.117 Once the possession rises to the level of trafficking,
Section 39 (B) (2) provides that the offender shall be punished on conviction with death.118 Notably, this punishment applies whether or not the accused is a citizen of Malaysia, and in fact many on capital punishment under the Drug Act are foreign nationals.
Under the Drug Act, simply finding prohibited drugs on someone’s person raises a presumption that they knowingly possessed the same. This contravenes the general legal principle, applied in most countries, of semper necessitas probandi incumbit ei qui agit, roughly meaning he who asserts must prove. It also
116 Malaysian Penal Code at Section 396. 117 Drug Act at Section 37. 118 Drug Act at Section 39(B)(2).
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contravenes Article 11 of the Universal Declaration of Human Rights, which enshrines the principle that anyone charged with a criminal offense must be presumed innocent until and unless proved guilty under the law. Section 37(d) states that: any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug.119
In whole, the majority of death sentences and executions in Malaysia have been carried out under the drug trafficking laws. The International Harm Reduction
Association reported that between 1994 and 199, 76% of all executions were for drug-related offenses.120
c) Drugs Trafficking Case in Malaysia (Reza Shah)
Amnesty International reported that on August 14, 2000, Reza Mohammed
Shah Bin Ahmad Shah (also known as Reza Shah) was arrested outside Kuala
Lumpur, allegedly carrying a plastic bag full of cannabis.121 The bag was found to contain nearly 800g of cannabis, well over the 200g required to define the offense
119 Malaysian Drug Act at Section 37(d). 120 Rick Lines, A ‘Most serious crime’? International Human Rights Law and the Capital punishment for Drug Offences, 18th International Conference on the Reduction of Drug-Related Harm, Warsaw, Poland, 15 May 2007, http://www.ihra.net/files/2010/06/21/Lines- amostseriouscrime-may07.pdf., Retrieved 0n February 10, 2017. 121Anti-Death Penalty Asia Network, When Justice Fails: Thousands executed in Asia after unfair trials, Amnesty International, December 2011, http://www.amnesty.org/en/library/asset/ASA01/023/2011/en/103678e4-fa6f-4b1c- 86a9- 7d94e42b9494/asa010232011en.pdf., Retrieved on February 10, 2017.
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as trafficking, punishable by death. The trial court found that Shah possessed
drugs in the alleged quantities and the law left the court with no discretion but to
convict him of drug trafficking and then to hand down the mandatory death
sentence. The Malaysian appellate court overturned Shah’s conviction in 2006,
finding that the prosecution had not proved that Reza Shah had knowledge of the
bag’s contents. In January 2009, however, the Federal Court (highest court in
Malaysia) agreed with the prosecution’s appeal, concluding that Reza Shah had
failed to prove that he was not guilty of drug trafficking and reinstated the death
sentence.122 Reza Shah has since joined hundreds who have appealed to the King
for clemency.
Table 3. Malaysian Drug Act Framework
Heroin Opium Cocaine Cannabis Punishment
2-5 g123 100-250 g124 5-15 g125 20-50 g126 2-5 years in prison and 3-9 whip strokes127 5-15 250-1000 g129 15-40 g130 50-200 g131 5 years to life in prison and 10+ whip g128 strokes132 15 g +133 1 kg +134 40 g +135 200 g +136 Mandatory death by hanging
122Ibid. 123 Malaysian Drug Act at Section 39A(1)(a) 124 Malaysian Drug Act at Section 39A(1)(i)-(k) 125 Malaysian Drug Act at Section 39A(1)(e) 126 Malaysian Drug Act at Section 39A(1)(f)-(h) 127 Malaysian Drug Act at Section 39(A)(1) 128 Malaysian Drug Act at Section 39(A)(2)(a) 129 Malaysian Drug Act at Section 39(A)(2)(i)-(k) 130 Malaysian Drug Act at Section 39(A)(2)(e) 131 Malaysian Drug Act at Section 39(A)(2)(f)-(h) 132 Malaysian Drug Act at Section 39(A)(2)
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D. Pro and Contra Views Towards the Enforcement of Capital
Punishment in Indonesia
Capital punishment is a legal process where the state sends a death row inmate to execution as a punishment for a grave offense committed. Although not all crimes are punishable by death, there are strong opinions shared by both pro- capital punishment (Retentionist) and anti-capital punishment (Abolitionist).
There are some sort of list from Retentionist views:
1. Retribution
This theory of justice which demands for Tooth for a Tooth and an Eye for an
Eye is the strongest argument of the capital punishment. When a criminal does
an act to fulfill a crime conduct which resulting into personal gains then the
equilibrium of justice in society is disturbed. To maintain this equilibrium the
criminal should be punished with the same intensity of punishment.
2. Capital punishment costs the government less as opposed to life imprisonment
without parole.
The expenses incurred by the government from imposing capital punishment it
is still cheaper compared to the costs of life imprisonment without parole.
Although there is no contention that the cost of the former is high, life
imprisonment is accumulatively higher given the expenses for food, health
133 Malaysian Drug Act at Section 37(da)(i) 134 Malaysian Drug Act at Sections 37(da)(iv)-(v) 135 Malaysian Drug Act at Section 37(da)(ix) 136 Malaysian Drug Act at Section 37(da)(vi)-(viii)
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care and other costs of sustaining the lives of incarcerated individuals serving
life.
3. Deterrence
The fear of capital punishment that is fear of losing life is the greatest fear for
any human. It also acts like a moral to the rest of the mankind. It is just like a
stick into the hands of law to make justice prevail in the society of civilized
people. Even life imprisonment is less feared because in that case, at least the
life is saved or to prevent a deviant treatment of its implementation. But in the
case of capital punishment snatching away of the human life is the most
terrifying consequence.137
4. Eliminate Negativity
Human beings live in civilized society and do not allow anyone to perform
any act which causes harm or any type of discomfort to any individual. Capital
Punishment has its aim to remove such diseased people from the society,
before they could spread their immoral believes to other people in order to
justify their act they should be removed from the society from the root level.
As it stated by Schranvendijk, Lombroso and Garofalo concerning to a radical
effort to eliminate people who can not be repaired or reform.138
137 Gautami Singh, 5 Pros and 5 Cons of Capital Punishment, 2016, http://listovative.com/5-pros- and-5-cons-of-capital-punishment/., Retrieved on February 10, 2017.
138 Andi hamzah and A. Sumangelipu, , Op.cit., page. 27.
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From Abolitionist views:
1. Human Right Violation
Human rights which are defined as the basic rights to be given to an individual
to lead a respectable life are considered to be the most important right to be
observed by any individual. Right to life is a non-derogable right of any
human being.
2. Innocent people are wrongly executed.
One of the arguments from the abolitionist is the inevitability of sending
innocent people who are wrongly accused to death row and eventually
executed.
3. Second change
Giving a second chance to the perpetrator to correct and improve himself as
way back to fit in the society. Justice is for everyone. Its primary aim is to
preserve life and remove crime in society not the criminal.139
139 Gautami Singh, Op.Cit.
CHAPTER IV
ENFORCEMENT OF CAPITAL PUNISHMENT
IN INDONESIAN LEGAL SYSTEM:
BETWEEN LEGAL CERTAINTY AND LEGAL
CULTURE
A. Capital Punishment Under Indonesian Legal System
1. Capital Punishment in Pancasila
Pancasila as Rechtsbeginsel140 is the highest thing in the hierarchy of law, which is concern as the basis or foundation of law in Indonesia. As an ideology, all the matters relating to the legal aspects should be resolved based on Pancasila, and one of the problems is that the certainty and the feasibility of a threat and the implementation of capital punishment in Indonesia.
In elaborate the problems with capital punishment, based on Pancasila, it should be examined in detail from one sila141 to another sila, because of the five
140 Principle of law (rechtsbeginsel) is the basis of the rules of law that qualifies (kwalificeren) some laws, so the legal rules that together constitute a legal institution. The principle of the law is the subject of a general nature of mind is the background of a concrete legal regulations (positive law) (Utrecht, 1957, 205).
141 Sila comes from Sanskrit means principle.
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principles of Pancasila is listed in representations of the values of culture that became the framework of the establishment of the Republic of Indonesia.
The first principle of Pancasila is Ketuhanan Yang Maha Esa which means
Belief in the Absoluteness of God. As the ideology, Pancasila put the belief in
God at the first principle because of its value which has been inveterated as the main idea of the society. In relation with law, the belief in God could be interpreted as how the law works is from a good faith to achieve the goal as the greatest number of people.
Therefore, the enforcement and the implementation of capital punishment should be guided by the Belief in the Absoluteness of God principle which is relate this matters to the religious view.
As instance, from Islam view about the absoluteness of God, it stated in
Quran (Surah Al Ikhlas 1-4):
Say (O Muhammad): He is Allah, the One and Only; Allah, the Eternal,
Absolute; He begetteth not, nor is He begotten; and there is none like unto
Him.
In Islamic law there is Qishash that the people in ancient time believe that it is not violate the Absoluteness of God which strengthen by Quran, Al Baqarah
(178). As it stated that certain crime could be punished by capital punishment if it is classified as an extraordinary crime, such as murder that has been stated before in Al Baqarah. Based on another stories from Muhammad’s relatives (Hadist) there is one case of a man who did stolen the things for 5 times and Muhammad ordered to assassinate him as the punishment.
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Based on the second principle of Pancasila namely, Kemanusiaan Yang
Adil dan Beradab (Just and Civilised Humanity). The capital punishment used as a tool to maintain the social stability from a crime conduct that could harm the humanity in a broad way and eradicate the extra ordinary crime which has exceed the limit of the public tolerance. Based on my consideration, while the judges decided a capital punishment to a convicted it was not because he has no sense of humanity or morality but he consider to uphold the justice and preserve the public interest as the greatest number, it is allowed to have a consideration by putting aside the individual interest or rights.
However, the abolitionist consider the humanity principle on Pancasila as the basis of argumentation to abolished the capital punishment from Indonesian penal law but refer to Bentham’s theory that the greatest good must go to the greatest number and also the public interest is above the individual interest, become the basis of the retentionist to uphold application of the capital punishment to maintain the sustainability of common justice. If the abolitionist said that capital punishment is cruel because it is violate the humanity, in my opinion capital punishment is not violate the humanity because the basis of just on imposing capital punishment is for the sake of justice and humanity, and the execution done by shoting gun precisely on the heart of the convicted rather than life imprisonment that give them no hopes which can cause mental damage and also burden the government to allocated cost for the prisoners.
The third principle of Pancasila is Persatuan Indonesia which is means The
Unity of Indonesia. Bhinneka Tunggal Ika as the official national motto of
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Republic of Indonesia has the meaning of unity in diversity. It illustrate the diversity in Indonesia which can be relate to the imposition of capital punishment, as a tool to maintain the state stability (the unity in diversity) from the belligerent.
The forth principle of Pancasila is Kerakyatan yang di Pimpin Oleh Hikmat
Kebijaksanaan dalam Permusyawaratan Perwakilan, means Democracy guided by the inner wisdom in the unanimity arising out of deliberations amongst representatives. In my opinion the capital punishment and democracy has no direct relation to capital punishment, from the book that I have read about, it was not stated clearly about the relation or alignment of capital punishment and democrarcy, but it suggested to apply capital punishment to eradicate the State apparatur who conduct dictatorial.
The fifth principle of Pancasila is Keadilan Sosial Bagi Seluruh Rakyat
Indonesia, means Social justice for all of the people of Indonesia. The concept of social justice in this principle is referring to an equal welfare condition in every sectors of live, such as economy, social, and culture welfare. There is no humiliation and suppression among others. Related to the capital punishment there is no contradiction with the social justice. Moreover, the implementation of social justice has been protected by capital punishment as stated in Government
Regulation in Lieu of Law No. 21 year of 1959 (state gazette 1959/130) article 1 paragraph (2).
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2. Capital Punishment under The 1945 Constitution
The capital pusnihment is part of the types of criminal applicable under
Indonesian criminal positive law. This is a form of criminal punishment executed by seizing the soul of a person who violates the provisions of the law. The aim of the implementation of the capital punishment is people notice that the government does not want any interruption to peace is greatly feared by the public.
The Article 28I (1) of the 1945 Constitution guarantees the right to life of each and every Indonesian citizen, in line with the ICCPR and law No. 12/2005.
Retaining the capital punsihment in Indonesia’s penal code (KUHP) is therefore a contradiction with the constitution by it statement on article 28 A to I of the 1945
Constitution that protect the right to life and not to be tortured.
In my opinion, article 28 A to I has preventive function for each individual to not doing crime that might be harm or violate the article and to protect them from the possibility that might be happen as it stated on related articles. It is not suitable if article 28 A to I being used to a person who violate the articles by doing crime, such as drug trafficking and terrorism. If the abolitionist said that capital punishment is unconstitutional and it could be substituted by the life imprisonment, based on my consideration the life imprisonment itself is violate the article of 28 I which stated about the freedom from torture. There is no specific explanation in Article 28 I (1) about what kind of torture it is but from what I have read from the book Pidana Mati di Indonesia: di Masa Lalu, Kini, dan di Masa Depan there was a convicted sentenced by death, named Doris Ann
Foster in Maryland, US, he stated that life imprisonment was tortured him both physically and mentally. He prefer to be free or to be die.
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Related to the unconstitutionality of the capital punishment, even though
Indonesia’s Constitution guarantees the right to life of each and every citizen, the same document in article 28 J that gives state the right to take life if — and only if
— such an action guarantees the recognition and respect of the rights and freedom of others. It has been obviated by a ruling recently issued by Indonesian’s
Constitutional Court Decision No. 2-3/PUU-V/2007. According to the ruling, no inconsistency exists with respect to this matter and Indonesia therefore requires capital punishment for crimes deemed serious under international law. Thus, I could conclude that the capital punishment is align with the constitution.
Based on the history of the capital punishment is not a form of punishment that is relatively new in Indonesia. Capital punishment has been known since the days of the kingdoms. For instance, in Aceh the execution can be carried out with the javelin, in Bali can be implemented in a manner drowned in the sea, while the tribe of Batak conducted with the alternative system where if the killer did not pay any of the execution can be carried out, and various types of executions other.
With regard habit (custom) and the customary laws of Aceh to Papua shows us the capital punishment was known by all the tribes in Indonesia, which can be concluded as Indonesian legal culture.
Indonesia is a sovereign, independent state that has the constitutional right to define the class of serious crimes and the proper punishment for such crimes, even though it ratified the ICCPR. The ICCPR article 6 paragraph 2 provided this option as exception for limited application of capital punishment for several most serious crime that has been classified by Indonesia itself.
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3. Capital Punishment under Related Laws
Criminal law referred capital punishment for several extra ordinary crimes.
For example in Indonesian Criminal Code (KUHP), Article 10 which set about the types of penal sanctions and outside of the Criminal Code (extra ordinary crime), including Law No. 35 year 2009 concerning Narcotics, Law No. 15 The year 2003 concerning the Eradication of Terrorism, Law No. 26 year 2000 concerning
Human Rights Court, and Law No. 5 year 1997 concerning Psychotropic Drugs.
The Law No. 35 year of 2009 concerning Narcotics which is known as Law
No. 22 year of 1997 before get amended into the current law. There are many agruments which said that the imposition of the capital punishment is unconstitutional. Based on my consideration capital punishment has actually been missed in the Constitutional Court decision on the Judicial Review Application concerning Law No. 22 year 1997 on Narcotics towards the 1945 Constitution filed by the four capital punishment convicted of narcotics case through their legal counsel regarding the unconstitutionality of capital punishment contained in the
Law No. 22 year 1997 on Narcotics. Based on the Constitutional Court decision, expressly stated that the capital punishment in Law No. 22 oyear of 1997 on
Narcotics is not contrary to the Constitution. In order to strengthen my opinion, I have consider the conclusion of the Constitutional Court's decision on the petition, which stated: The provisions of Article 80 paragraph (1) letter a, Paragraph (2)
(a), paragraph (3) letter a; Article 81 Paragraph (3) (a); Article 82 Paragraph (1) a,
Paragraph 2 (letters) a and paragraph (3) letter a in the Narcotics Act, as long as the capital punishment imposition, does not violate the Article 28A and Article
28I paragraph (1) of the 1945 Constitution.
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Law as the legal substance referring to the Lawrence M. Friedmann theory is the working pattern of living law which originally comes from the value of society and their customs (legal culture). The legal substance can not be stand alone to run the legal system, it must be accompanied by the legal structure and legal culture. Legal culture as the source of the idea of legal substance, then the product of the legal substance which is law (written law, codified law, constitution, ideology) would be implemented to society by the legal structure.
The legal structure in Indonesia based on Law no. 8 year 1981 (Indonesian
Criminal Procedural Law) contains of police, prosecution, courts and penal execution (prisons).
Therefore, the success of a legal system can not be judge only from one aspect of its system, it should be considered from a whole aspects which contains on it. From this thought I have consider that capital punishment as the product of legal substance can not be stand alone and can not be judged as it is needed to be abolished, but that might be better if legal structure and legal culture involved to be evaluated.
B. The Existance of Capital Punishment in Indonesian Legal
System
The capital punishment is a form of punishment which always causing pro and contra. Pro and contra is not only happen in Indonesia, but in nearly all countries that exist at the moment. Every legal expert, human rights activists and
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others always rely on the opinion of the pro and contra of capital punishment institutions with logical and rational reasons.
The tendency of experts who agree by the capital punishment is maintained exist generally based on the grounds conventional need, for the capital punishment is needed to eliminate those that are contraidered harmful to the public interest or the state and is contraidered irreversible, whereas those who contra of capital punishment usually makes the reason the capital punishment is contrary to human rights and is a form of crime that can not be corrected if after the execution was carried founded blame for verdict the judge. As some experts and leaders who support the existence of the capital punishment is Jonkers,
Lombroso, Garofalo, Hazewinkel Suringa, Barda Nawawi Arief, Oemar Senoadji, and TB Simatupang.
Furthermore, Lombroso and Garofalo believe that the capital punishment is an absolute tool to eliminate individuals that could not be repaired anymore.
Individuals that certainly are people who commit a remarkable serious crimes
(extraordinary crime).
One of the national criminal law reforms figures, Barda Nawawi Arief explicitly stated in a book that the capital punishment still need to be maintained in the context of the renewal of the National Criminal Code. I have concluded that although the capital punishment is maintained primarily as a safeguard of the public (focusing on the interests of the community), but in the implementation it is expected to be selective, careful and well-oriented on the protection of the individual interest (criminal).
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Indonesia has recognized narcotics as outstanding serious crimes against humanity (extraordinary) so it needs to enforce a special treatment, effectively and optimally. According to the Court, by applying severe penalties through the capital punishment for serious crimes such as narcotics, the author argued, that
Indonesia does not violate any international agreements, including the
International Convention on Civil and Political Rights (ICCPR), which advocated the abolition of the capital punishment. In fact, the Article 6 paragraph (2) of the
ICCPR itself still allow the capital punishment to the enactment of the participating countries, especially for the most serious crimes. In my opinion, the capital punishment has been in line with the 1960 UN Convention on Narcotic
Drugs and the 1988 UN Convention on the Eradication of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, Article 3 of the Universal
Declaration of Human Rights, and the Human Rights Act.
Considering to the abolitionist thoughts about capital punishment is a cruel conduct which derogate the human dignity, in my opinion the life imprisonment is much crueler to let the criminal life in sorrow and seized all their human rights for a lifetime but in the other hand I agree about the possibility of imposing capital punishment to the innocent, and once the convicted being executed there is no way to take them back except the rehabilitation of their reputation as what
Beccaria’s believe.
As stated in Chapter IV-A point 2, since the capital punishment has been officially interpreted as constitutional, it should still be used in Indonesia. As long as it needed to protect and maintain the stability of public interest, capital punishment would still be exist in Indonesian legal system.
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Everyone has the right to live, perpetrators and victims alike. The
Constitution guarantees that right and in my opinion, the state and the citizens must respect and uphold this basic human right.
CHAPTER V
CONCLUSION AND RECOMMENDATIONS
Conclusion
This research presented about the capital punishment in Indonesian legal system, concerning the regulation inside and outside the Indonesian Criminal
Code and Indonesian Criminal Procedural Code or known as KUHP and KUHAP.
It analyze the feasibility of capital punishment in Indonesia; furthermore, it discusses about the capital punishment alignment with Pancasila as Ideology, the
1945 Constitution, and other related laws. The theories and principles expressed by several experts (e.g. Lambroso and Garofalo) supporting the feasibility of capital punishment have been detailed.
Moreover, this research compares the capital punishment in Indonesian and
Malaysian legal system through the analysis of certain cases which are classified as extraordinary crimes and therefore eligible for the capital punishment imposition.
Accordingly, as what has been mentioned above that the existance of
Capital punishment in Indonesia is based on the needs of its country, as long as capital punishment does not violate Pancasila and the Constitution of 1945 as the ideology and constitution. Despite the abolisionist point of view, it is considered as valid to be applied in Indonesia. However, in order to prevent unfair trial due to the process of capital punishment implementation, it is better to consider the
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capital punishment as the alternative punishment, and this idea could be done by the renewal of Indonesian Penal Code.
Recommendations
The author recommends certain aspects that could be considered for improving the enforcement and imposition of capital punishment in Indonesia, such as:
1. The substitution of capital punishment as an alternative punishment
and no longer classified as the primary punishment to reduce its
imposition. This idea can be considered to be set up in the latest
draft of Indonesian Penal Law;
2. The capital punishment can be imposed by considering a
progressive probation for ten to fifteen years, if convicted shows a
creditable behavior then the capital punishment can be replaced by
life imprisonment or other punishments.
3. Improvement in law enforcement within the level of legal
structure, by eliminate the unfair conduct in due process of law. So
that, the legal substance will run effectively.
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