 |
| Andrew Chan (left) and Myuran Sukumaran (right) |
Indonesian President Joko Widodo's decision to refuse clemency to death row prisoners in drug cases and the following execution of five foreigners and one Indonesian raises once again the nation's use of the death penalty.
Now Australians Myuran Sukumaran and Andrew Chan have had their clemency bids denied and they potentially await the same fate, subject to substantive judicial review proceedings, along with more than 60 other prisoners, including other foreigners.
Is it fair to execute prisoners long after they have been sentenced, especially those who show rehabilitation? Is this not cruel and unusual punishment?
The decision also raises questions of justice and Indonesia's best interests given the burden Indonesia has with its own citizens facing execution overseas.
The context is clear. The world trend is decisively in favour of the abolition of the death penalty. On December 18, 2007, the UN General Assembly passed a resolution calling for a moratorium on the death penalty. Interestingly, Indonesia abstained. Nearly all of Indonesia's neighbours are abolitionist with only Malaysia and Singapore having the death penalty.
Under international law the death penalty can only be imposed for " the most serious crime". This expression has come to be interpreted as "for serious, violent crime", not drug offences.
Indonesia retains the death penalty despite having the right to life as a guarantee in its constitution. In a case bought by Indonesian citizen Edith Yunita Sianturi, Bali 9 member Scott Rush and others in 2007, the Indonesian Constitutional Court upheld the constitutional validity of the death penalty by majority of 6 to 3.
The minority judges were almost scathing in their dissent and held that the death penalty was unconstitutional, violating the right to life. The majority in a joint judgement upheld the validity of the death penalty and, contrary to international law, held that the death penalty for drug offences fell within the category of "most serious crime".
However, the majority judgment made certain recommendations which are contrary to the justifications given for the President's recent decision.
Significantly, the majority judges accepted that the death penalty did not act as a deterrent, certainly no more a deterrent than life or other significant imprisonment term. They also made several important recommendations, including that the death penalty should not be a primary form of punishment, rather one that is "special and alternative". Further, that it should be able to be imposed with a prohibition period of 10 years, so that if "the prisoner shows good behaviour, it can be amended to a lifelong sentence or imprisonment for 20 years".
The sentences of the 6 recently executed prisoners were all imposed when the death penalty was considered "a primary form of punishment". This is also the case for Chan and Sukumaran.
The blanket statement from Jokowi that he will not grant clemency to condemned drug offenders is contrary to the recommendations of the Constitutional Court. It is also against the clemency applicants' legitimate expectations that he would consider the merits of each application, including good behaviour and rehabilitation.
The past 5 years have shown the great distress caused in Indonesia by the imposition of the death penalty upon its citizens overseas, usually poor migrant workers. In 2010, Indonesia had more than 220 citizens facing execution overseas, mainly in Saudi Arabia, the Middle East, Malaysia, China and Vietnam. Indonesia has more than 1.3 million of its poorest citizens working as migrant domestic workers.
A series of controversial beheadings of female migrant workers in Saudi Arabia caused widespread public anger among ordinary Indonesians. There was a perceptible change of mood in Indonesia about the death penalty and the importance of mercy.
It was in response to this mounting problem that Indonesia introduced its de facto moratorium on the death penalty to help secure clemency for its own citizens on death row overseas. Former president Susilo Bambang Yudhoyono granted clemency in some cases, including drug cases.
The combination of the moratorium, mercy and excellent diplomacy worked. Former foreign minister Marty Natalegawa was widely reported as saying that the moratorium had helped Indonesia secure clemency and the return of many citizens.
Yet Indonesia still has more than 90 citizens facing execution overseas. The country has a lot more at stake than Australia or any other nation in the region.
President Jokowi's clemency stance came very early in his term in response to opposition claims that prisons were overcrowded and death row prisoners were clogging up cells. The opposition sought to wedge the new President.
Indonesia does have a growing problem with drugs and drug crime, like all countries in the region. The problem requires a more sophisticated response than the executions of mules and expendable persons. But what is clear is that the President's decision is contrary to the Constitutional Court's recommendations, international law and the successful efforts that achieved clemency for Indonesian citizens overseas.
Then, there is the issue of justice. Is it fair to execute prisoners long after they have been sentenced, especially those who show rehabilitation? Is this not cruel and unusual punishment? What does it do to Indonesia's excellent diplomatic reputation? What effect does it have on police and intelligence co-operation at a time of increased need for international engagement? From Indonesia's own experience, the government must know executions raise fundamental issues and values.
Indonesia could deport long-serving foreigners on condition that they face justice in their home countries. After all, in the cases of the two condemned Australians, they were apprehended as a result of Australian Federal Police advice in respect of drugs intended for Australia not Indonesia.
The shared burden of citizens facing execution overseas throws up a range of issues. The careful political response of former president Yudhoyono, which helped reduce Indonesia's burden, is now jettisoned. Yes, the death penalty is always political. Perhaps that is why in the current political climate, Indonesian observers are questioning whether the new President's decision is in Indonesia's best interests.
Source: Brisbane Times, Colin McDonald, January 26, 2015. Mr. McDonald, QC, is a retired barrister who was the Australian senior counsel for Bali Nine members Renae Lawrence and Scott Rush; Brisbane Times.
