Monday, July 28, 2008

Capital Punishment: Yes or No?

In the past one week, debate over the implementation of capital punishment in Indonesia has become the headlines in several TV stations. Two opposite camps have been pitched against each other, debating the pro and con on the issue. The executions of five convicts who have been found guilty of drug trafficking and planned murder in July 2008 alone have triggered the debate: “Should capital punishment (death penalty) be retained or be abolished altogether in Indonesia?”

The abolitionist, the group who opposes capital punishment, argues that, first, the right to life cannot be abrogated at any cost by anyone and the state is held responsible in ensuring this situation. Thus a convict who has been proven guilty for serious crime cannot be punished with capital punishment instead he/she should be put in jail for the longest term possible.

Second, decision by the Indonesian government to ratify the ICCPR (International Covenant on Civil and Political Rights) into Law No. 12/2005 should make it mandatory for Indonesia to abolish capital punishment. Life imprisonment is the only alternative to punish any serious criminal offence, and not capital punishment if Indonesia wants to move forward in this globalized world.

Third, Article 28I (1) of 1945 Constitution guarantees the right to life of each and every Indonesian citizen. It is inline with the ICCPR and Law No. 12/2005. Retaining death penalty in Indonesian penal code (KUHP) is a contradiction and a proof of inconsistency in Indonesian constitutional law system.

Finally, on the question of justice for the victim, the group argues that by punishing the perpetrator with death penalty, it does not do justice to the suffering being inflicted by the crime that has been committed. Life imprisonment will, in their opinion, bring more justice to the victim since it will amount to multiple miseries, both mentally and physically, to the perpetrator.

On the contrary, the retentionists who support the implementation of capital punishment in Indonesia argue that Indonesia is a sovereign, independent state which, even though it ratified the ICCPR, but it has the constitutional right to define what serious crimes are and the type of punishment to these crimes. ICCPR gives this options and it has nothing to do with Indonesia’s future in this globalized world.

Besides, even though the Indonesian Constitution guarantees the right to life of each and every Indonesian citizen, but in the same Constitution, the right to life can still be taken by the state for certain reasons restricted by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others.

Moreover, argument of inconsistency in the Constitution has been ruled out by recent ruling issued by Indonesian Constitutional Court on Decision No. 2-3/PUU-V/2007. The ruling says that there is no inconsistency on this matter and at present, Indonesia still needs the application of capital punishment for serious crimes categorized under the international laws.

On the question of justice, capital punishment still holds justice to any serious crimes committed by a perpetrator. However, there is a necessity to look into the legal process in order to arrive at a justifiable final conclusion of applying capital punishment to such crimes. Competent judges and legal system in a country holds the most prominent position in this matter.

In our view, since it has been officially interpreted as constitutional, therefore capital punishment should still be applicable in Indonesia. Apart from being utilized as a deterrent for the perpetrators of serious crimes, ratification of ICCPR does not mean that Indonesia cannot decide what is applicable and what is not, especially in relation to capital punishment.

Even though majority of nations in the world has approved the abolition of capital punishment (129 of 196 countries), but being the minority in this matter shall not make Indonesia incapable of fitting into the new world. As a sovereign nation, Indonesia has all the rights to decide its own future.

The right to live is for everyone, both for the perpetrators and the victims alike. The Constitution guarantees that right and, in our opinion, it is both for the state and the citizens to respect and uphold this basic human right.

With democracy that allows transparency and by revamping and improving Indonesian legal system, the question of justice and the application of capital punishment should not be a problem in Indonesia. Instead, it will bring better future for Indonesia as a democratic society.

Note: Pan Mohammad Faiz, S.H., M.C.L. from Faculty of Law, University of Delhi, India who is currently working at Indonesian Constitutional Court, has added his views in this article.

1 comment:

dudleysharp said...

There is no unconditional right to life.

The argument is as follows: Life is a fundamental human right.  Therefore, taking it away is a fundamental violation of human rights.

Those who say that the death penalty is a human rights violation have no solid moral or philosophical foundation for making such a statement.  What opponents of capital punishment really are saying is that they just don't approve of executions.

Certainly, both freedom and life are fundamental human rights.  On this, there is virtually no disagreement.  However, again, virtually all agree, that freedom may be taken away when there is a violation of the social contract. Freedom, a fundamental human right, may be taken away from those who violate society's laws.  So to is the fundamental human right of life forfeit when the violation of the social contract is most grave.

No one disputes that taking freedom away is a different result than taking life away.  However, the issue is the incorrect claim that taking away fundamental human rights -- be that freedom or life -- is a human rights violation.  It is not.  It depends specifically on the circumstances. 

How do we know?  Because those very same governments and human rights stalwarts, rightly, tell us so.  Universally, both governments and human rights organizations approve and encourage taking away the fundamental human right of freedom, as a proper response to some criminal activity.

Why do governments and human rights organizations not condemn just incarceration of criminals as a fundamental human rights violation?  Because they think incarceration is just fine.

Why do some of those same groups condemn execution as a human rights violation? Only because they don't like it.  They have no moral or philosophical foundation for calling execution a human rights violation.

In the context of criminals violating the social contract, those criminals have voluntarily subjected themselves to the laws of the state.  And they have knowingly placed themselves in a position where their fundamental human rights of freedom and life are subject to being forfeit by their actions.

Opinion is only worth the value of its foundation.  Those who call execution a human rights violation have no credible foundation for that claim.  What they are really saying is "We just don't like it."

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.