President Jokowi must reconsider the impending executions the country’s judicial system is still being far from fair and there is no data to support death penalties being any deterrent to drug use.
The third wave of executions is expected to be carried out after the Idul Fitri holidays, as Attorney General Muhammad Prasetyo has stated.
This is a move that will definitely mar Indonesia’s already-poor human rights record, considering that the right to life is non-derogable – a right that cannot be reduced or suspended under any circumstances.
This non-derogable right is stated in Article 28 of the Indonesian Constitution, along with freedom from torture, freedom of thought, conscience and religion, freedom from slavery or involuntary servitude, the right to recognition as a person before the law, and the right not to be convicted by virtue of retroactive criminal legislation.
Indonesia ratified the International Covenant on Civil and Political Rights over a decade ago, in 2005, one of the instruments that urges states to have a high regard and respect for life, as echoed in our 1999 Law on human rights.
Those laws demonstrate that, in theory, Indonesia should reject the death penalty. However it was adopted in 1918 and is incorporated within the Criminal Code, a Dutch colonial legacy that even the Dutch abandoned in 1870.
In addition, the death penalty in a faulty judicial system that has weak law enforcement is especially vulnerable. The fact that many judges and other officials are arrested for corruption shows just how much our judicial system is full of manipulation and is, therefore, far from fair. Once a life is taken, it is final.
When misconduct occurs and the life of an innocent person is wiped out, the blood on our hands is there to stay.
Take the case of Zulfiqar Ali. Ali is a 52-year-old Pakistani who was a textile worker in Pasar Baru, Jakarta. He was arrested at his home, accussed of possessing 300 grammes of heroin in 2004. In June 2005, he was sentenced to death.
From his arrest until today, he has experienced misconduct on the judiciary’s part. During his pre-trial detention, Ali was denied a lawyer. Ali was only allowed access to a lawyer one month after his arrest, thus there was little time or resources to prepare his defence.
Ali was also denied contact with the Pakistani Embassy, clearly a violation of the Vienna Convention on Consular Services, ratified by Indonesia in 1982.
In addition, during detention he was severely beaten, tortured and forced into signing a confession. Ali had to undergo stomach and kidney surgery and is still in hospital. Torture is prohibited in all international law and also in our Constitution.
Moreover, Ali was initially only arrested as a witness to Gurdip Singh, who then told the police that the heroin was not his but Ali’s.
Gurdip later confessed that he had been tortured and forced into making this confession, as well as being promised a reduced sentence for saying the drugs belonged to Ali. He was the key witness in Ali’s case.
When the promise turned out to be empty and Gurdip was sentenced to death in the same case, he admitted that the heroin was his and not Ali’s (and that he had been forced into saying it was Ali’s in the first place), but the court simply ignored this confession.
Unfair trials have become somewhat of a trend. The case of Zainal Abidin, an Indonesian national executed last year, is another example. Zainal sent a request for a review of the court decision (PK) to the Palembang District Court in 2005, but it went “missing” and was only submitted to the Supreme Court ten years later, in 2015.
The Supreme Court chief justice, Hatta Ali, condemned the incident and called it a mistake. The Supreme Court blamed the Palembang court. Zainal’s PK was finally decided in a matter of only a few days and rejected just two days before his execution.
He was transferred to isolation even before his PK was determined. Is this the kind of justice we use to take people’s lives?
Moreover, studies have found no empirical evidence that execution has any greater deterrent effect than long prison sentences.
According to Jeffrey A. Fagan, Columbia University director of the Center for Crime, Community and Law, the death penalty for drug crimes is proven to have no effect on drug markets, price or circulation.
He also found that people who commit a death-eligible crime have motivations that overwhelm the possibility of execution.
Furthermore, President Joko “Jokowi” Widodo’s overly used argument that 40-50 people die from drug abuse every day has been deemed inaccurate and outdated by a National Narcotics Agency (BNN) official.
The claim was based on “questionable methods and vague measures” according to Claudia Stoicescu, a doctoral researcher at the Centre for Evidence-Based Intervention at Oxford University.
Over 160 countries either have abolished the death penalty or are moving toward ending executions by introducing a moratorium in practice or in law.
Fewer than 40 countries still practice it, including Indonesia. However, attending the World Congress against the Death Penalty in Oslo last month gave me hope that universal abolition could actually be achieved within our lifetime. Abolition, or at least a moratorium, is long overdue here in Indonesia.
How much longer can we pretend to hold on to this illusion? With our judicial system evidently being far from fair and no data to support death penalties being any deterrent to drug use, it would not only be reasonable but also necessary for Jokowi to reconsider the impending executions.
Evitarossi S. Budiawan
(The writer is a researcher at Imparsial, The Indonesian Human Rights Monitor NGO.)
The Jakarta Post
20 July 2016