Shot until dead

No end in sight for the death penalty in Indonesia

Dave McRae

The year 2008 has been a dismal one for opponents of the death penalty in Indonesia. Ten people have been executed, almost equaling the number of executions in Indonesia during the preceding decade. The Constitutional Court also rejected a challenge to the 1964 law governing the method of execution, after last year also rejecting a challenge to the constitutionality of the death penalty for narcotics crimes. With an election next year, around 100 people still on death row and few avenues left to challenge the legality of capital punishment, there could still be more executions to come.

The death penalty in Indonesia

Indonesia is one of 60 countries that retains the death penalty, according to Amnesty International figures (137 have abolished capital punishment in law or in practice). As Indonesia ratified the International Covenant on Civil and Political Rights in 2005, it may only impose the death penalty for ‘the most serious crimes’. In Indonesia's interpretation, terrorism, premeditated murder and grave human rights violations all fall within ‘the most serious crimes’. Somewhat unusually, narcotics offences and corruption do as well.

Executions in Indonesia are carried out by firing squad, and typically take place late at night in secret locations. Condemned prisoners are informed 72 hours before their execution is to take place. A police firing squad shoots the prisoner in the heart from a distance of between five and 10 metres, upon the signal of a swift downward sword stroke from the squad commander. If the prisoner is still alive, the deputy squad commander then presses the muzzle of his gun on the prisoner’s head and fires a ‘finishing shot’.

With almost twice as many people on death row as have been executed in the past 30 years, Indonesia will soon have to conduct a lot more executions, or it will have to commute many or all of the sentences

On the one hand, judicial executions in Indonesia may appear to be a relatively minor problem. Indonesia is generally estimated to have executed just over 50 people since the late 1970s; in the same period the United States has carried out more than 1000 executions. Even within Indonesia, a far greater number of people have perished in extra-judicial killings during the same time frame. For instance, death squads summarily executed several thousand suspected criminals and urban thugs during the Suharto regime's infamous Petrus – or mysterious killings – campaign in the early 1980s.

But Indonesia has reached a crossroads as far as capital punishment is concerned. With almost twice as many people on death row as have been executed in the past 30 years, either it will soon have to conduct a lot more executions, or it will have to commute many or all of these sentences.

Support for the death penalty

The death penalty appears to enjoy widespread support in Indonesia, both in government ranks and among the general public. No systematic data on public opinion is available, but media polls typically show around 75 per cent support for capital punishment. The results of some of these polls may surprise foreign readers. For instance, a 2006 poll in the national Media Indonesia daily found 78 per cent support for the death penalty for terrorists, 78 per cent for drug dealers, 68 per cent for people involved in large-scale corruption and 67 per cent for murderers. When asked to rank which out of these four categories of crime most deserved the death penalty, drug offences ranked narrowly behind corruption and terrorism, with murder a distant last.

The Indonesian government has also repeatedly stated its firm support for retention of the death penalty. In its submission to the Constitutional Court case on capital punishment for narcotics crime, for example, the Ministry of Law and Human Rights argued that the death penalty was an essential part of the government's law enforcement arsenal. The death penalty was used only in specific circumstances, for the most heinous crimes, and was applied selectively, only when guilt had been proved beyond reasonable doubt, the ministry said. Quoting the Attorney General, the government also submitted that the weak state of Indonesia's law enforcement bodies meant that abolishing the death penalty would worsen the law and order situation in Indonesia, and send the wrong message to drug dealers.

Ironically, opponents of the death penalty cite the same facts in arguing for abolition. To retain the death penalty when Indonesia's legal system is so weak, the applicants in the Constitutional Court case submitted, runs the risk that innocent people will be wrongly convicted and executed.

The abolition campaign

Some executions in Indonesia have attracted widespread protest. The execution of three Catholic men in 2006 in connection with the Poso conflict and the recent executions of three of the Bali bombers were each preceded by demonstrations and media controversy. For each of these executions, though, most opposition derived from the specific background of the case rather than being motivated by rejection of the death penalty per se. Many of those who protested over these cases would be unlikely to campaign for abolition of the death penalty in all cases.

A small but committed abolitionist movement is working to end capital punishment in Indonesia, however. The movement centres on human rights NGOs, religious figures and certain academics. ‘We had hoped that after the reform movement in 1998 it would be easy to get rid of the death penalty,’ said Rusdi Marpaung, managing director of Imparsial and a member of the Coalition for the Abolition of the Death Penalty, when I spoke to him recently. ‘But it didn't turn out to be the case. The Criminal Code left by the Dutch remained in place.’

A small but committed abolitionist movement is working to end capital punishment in Indonesia

But two setbacks in the Constitutional Court have left the abolitionist movement with few options. Last year, the Constitutional Court rejected a challenge to the death penalty in narcotics cases that was brought by three Australians sentenced to death for drug offences and two Indonesian applicants. The Court reasoned that the non-derogable right to life guaranteed in Article 28I(1) of the Indonesian constitution was subject to the restrictions on human rights in Article 28J(2). The latter article states that an individual's rights are subject to restriction to protect the rights of others. The Court also stated that particular narcotics crimes could rightly be considered to be ‘the most serious crimes’. There was no substantive difference between particularly serious narcotics crimes on the one hand, and genocide or crimes against humanity on the other, the court said, as each posed ‘a danger of incalculable gravity’ and could undermine the ‘economic, cultural and political foundations of society’.

Admittedly, the Court's decision in this case was not unanimous. Three of the nine justices filed dissenting opinions on the constitutionality of the death penalty. But only one of these judges is still on the court today.

In a second case this year, the Court unanimously upheld the constitutionality of execution by firing squad. Lawyers acting for the Bali bombers had charged that death by firing squad did not guarantee instant death, and so amounted to torture. In rejecting the challenge, the Court agreed with the government's argument that the pain caused by execution could not be considered to be torture, because generating this pain was merely an inevitable by-product of the lawful act of executing a prisoner.

Activists could also lobby for the death penalty to be abolished as part of ongoing revisions to the Criminal Code. Here, also, the prospects are poor. Two members of the drafting team for the new law testified in the Constitutional Court that they had decided to retain the death penalty for the same offences to which it currently applies. One key change that the drafters did say will be included in the new code is that judges will be able to set a 10-year probation period as part of a death sentence, after which the sentence would either be commuted or carried out based on the behaviour of the prisoner in the intervening period. Any such change must still be debated by the parliament, however. The substance of the draft law apart, the revision process has already dragged on for years, and it is far from clear when a new criminal code will finally be enacted.

The death penalty appears to enjoy widespread support in Indonesia, both in government ranks and among the general public

Meanwhile Indonesian courts continue to hand down death sentences at a swift rate, with at least 14 people added to death row this year.

Future prospects

Ten executions so far this year and an election next year both point to more executions in the short term. The government may even start to take more serious moves to execute everyone on death row. The Constitutional Court called for as much in handing down its judgment on the Narcotics Law, recommending imminent executions of all death row prisoners who had exhausted their avenues of appeal. But nothing in Indonesian law dictates a timetable for a death sentence to be carried out, and the wait for a death row prisoner could be anything from months to years. High profile cases may proceed to execution more quickly, but often it is not clear why a particular case reaches the front of the queue.

Comparison of three executions carried out in July this year illustrates the variation in timing. Yusuf Maulana, a sorcerer (dukun) convicted of murdering eight of his patients, was sentenced to death in March 2008. By contrast, Sumiarsih and Sugeng, executed just two hours after Yusuf, were convicted of murder in 1988. And in 2007, the national daily Kompas turned up the case of Matar - convicted of multiple murder, rape and robbery - still on death row after his first plea for clemency was rejected in 1972.

The death penalty in Indonesia appears to be here to stay. But the future for those on death row is less certain.     ii

Dave McRae (dgmcrae@gmail.com) is a researcher living in Indonesia.

Inside Indonesia 94: Oct-Dec 2008