CAPITAL PUNISHMENT: A PERSPECTIVE FROM INDONESIAS LEGAL SYSTEM

AND HUMAN RIGHTS

A structured task for final examination of Human Rights dan Law subject

Compiled by:

Ryela Ria Prisandi

135010107111028

FACULTY OF LAW

BRAWIJAYA UNIVERSITY

2016
CAPITAL PUNISHMENT: A PERSPECTIVE FROM INDONESIAS LEGAL SYSTEM
AND HUMAN RIGHTS

Abstract

The capital punishment that applied in Indonesia is an issue that seems to have no end if
discussed. There are faction that oppose the capital punishment because the capital
punishment violates human rights, especially the right to life, and there is also a faction that
supports the imposement of capital punishment because the capital punishment is considered
to provide a deterrent effect and be able to control crimes. This paper aims to give an
opinion on the capital punishment of the author if it associated with the legal system of
Indonesia and human rights

Keywords: Capital Punishment, Human Rights, Indonesias Legal System

 A. BACKGROUND

Law enforcement is the process of doing an effort for the establishment or the functioning of
legal norms significantly as a code of conduct in public life and state. Judging from the subject in
the broad sense, law enforcement can be done by the broad subjects and can be interpreted as a
law enforcement efforts involving all subjects of law in any legal relationship. Anyone who runs
normative rules or do something or not do something by basing itself on the rule of law that
norms applied, means that he runs or enforce the rule of law. In a narrow sense, in terms of
subject, law enforcement interpreted as an officials attempt to ensure the enforcement of certain
laws and ensure the rule of law, if necessary, law enforcement officials can use the power of
force.

Definition of law enforcement can also be viewed from the subject, namely in terms of the
law. In this case, understanding also includes the broad and narrow meaning. In a broad sense, it
includes law enforcement on the values contained in the formal rules, and values that grow in the
community. In a narrow sense, the law enforcement concerns only formal enforcement and
written norms alone. There are various kinds of forced power used by law enforcement to
enforce the existing rules, one of which is the threat of criminal punishment.

Article 10 of the Criminal Code allows the formulation of a variety of criminal penalties, the
principal and additional criminal punishment. Included in criminal penalties are; the death
penalty, imprisonment, imprisonment, and fines. While included in the additional penalties are;
revocation of certain rights, deprivation of certain goods, and the announcement of the verdict.
Which will be further discussed here is about the capital punishment.

What is Capital punishment? Capital punishment is a death penalty. It is used today and was
used in ancient times to punish a variety of offenses. Even the bible advocates death for murder
and other crimes, like kidnapping and witchcraft. When the word capital punishment is used, it
makes yelling and screaming from both sides of extremist. One side may say deterrence, while
the other side may say, but you may execute an innocent man.

The capital punishment is one of the most controversial way of law enforcement in the
world. From the ancient Babylonians until now, the capital punishment is still used as a sanction
for those who are accused/convicted of a crime, but there is no record of exactly since when the
capital punishment was implemented. The capital punishment may be regarded as the most cruel
way, because there is no hope for the convict to repair the evil he has done. Executions
throughout history have done in various ways. When the man is still in the level of thinking that
is not as advanced as now, the execution done by a very cruel inhumane.

Indonesia itself is a democratic state of law and uphold Pancasila as the philosophy of the
nation. In the Constitution of the Republic of Indonesia, there are formulations concerning
human rights. It can be found in the Preamble and the content. The formulation contained in the
content is a fundamental statement that Indonesia recognized the principle of the protection of
human rights. The principle of the protection of human rights contained in the Constitution of the
Republic of Indonesia solely because Indonesia is a country that maintains its dignity and status
in the international world. One of the recognition of human rights contained in the Indonesian
constitution is the right to life enshrined in Article 28A and Article 28I (1) UUNRI that often
contradict the imposition of death sentences have been sentences which is believed that it is one
of many way of eradication of the right to life, where enforcement is still considered worthy to
be maintained.

Within the scope of the international community, the capital punishment has got almost no
place anymore in a democratic and civilized society. UN Commission itself to respond as
follows:

"Although the capital punishment has not been banned based on international law, the
trend towards the prohibition is clear. The adoption of the Optional Second International
Covenant on Civil and Political Rights of 1989 which aims to abolish the capital
punishment is a very clear recognition by the international community to the need to
eliminate the use of the capital punishment completely and whole. "

There are a few things behind the imposition of the capital punishment sentence, among others;

1. Because it considers the capital punishment have a higher effectiveness rate than other
penalty, because it has a chilling effect.
 2. Because it considers that theoretically, the capital punishment would lead to a very high
deterrent effect that can cause a person to undo his intention to commit a criminal
offense.So that the capital punishment can also be used as a good tool of prevention and
general and specialized remedy of criminal law.

One of the major premise and probably the oldest that supports the death penalty is
retaliation theory. Based on the theory of retaliation, death penalty is imposed as an attempt to
maintain and uphold decency and justice. Criminal punishment dropped not because it promotes
a purpose or merit but solely is to avenge the crime committed by someone so that decency and
justice in the form of an absolute balance still achieved. In its development, the theory of
retaliation is undergoing a transformation and incorporate other objectives such ideal elements of
the preventive and deterrent effect and eliminate the source of the threat.1

On the other hand, the rejection of the death penalty is because the death penalty is contrary
to the basic values of humanity. State and any power does not have the authority to revoke a
person's right to live. This view also explains that the deterrent and preventive efforts proved
unsuccessful, and also not correct an error. This thinking is based on the spirit of humanism that
developed in Western Europe after the experience of war and destruction of war since the war in
Europe during the 19th century and 20th century, which ended with World War I and II. The
rejection of the death penalty to be a lot due to the fact that many death sentences carried out
against those who have different political views with the authorities without any compelling
reason whatsoever to support the implementation of the death was necessary and just a refusal or
removal of the right to life of the person. In addition, many forms of death sentences carried out
by the method of punishment is cruel and sadistic and tend to cause suffering and excruciating
pain.2

United Nations Commission on Human Rights has always passed a resolution calling on
countries that have not abolished the capital punishment in order to do memoratorium
execution. Based on data from Amnesty International and Hands Off Cain in September 2007,
there were 142 countries in the world have abolished the capital punishment in its
1
http://ayub.staff.hukum.uns.ac.id/artikel-artikel/hukuman-mati-menurut-perspektif-ham-internasional/ accesed
on 1st June 2016

2
Elmar I. Lubis, 2012, Perkembangan Hukuman Mati di Indonesia, Opinio Juris Vol. 4 Januari-April 2012
legislation. The entire European Union member states have abolished the capital punishment
except for Belarus, so the toughest criminal penalty for the offenses included in the category of
serious crimes is life imprisonment.

Until now, there are 58 countries which apply the capital punishment as the toughest
punishment. In 2004 only 25 countries that effectively apply them, and in 2005 was reduced to
22. Some countries that still impose the capital punishment effective include Indonesia, China,
Pakistan, and Sudan.

In the positive law in Indonesia, the use of the capital punishment is still considered to be
effective to combat and prevent crimes that might qualify as a serious crime. It can be seen as
Article 10 of the Criminal Code still puts the capital punishment as principal punishment and it is
still considered relevant. In addition, the criminal penalties outside the Criminal Code also puts
the capital punishment as a sanction the violation of the act set forth therein.
B. ANALYSIS

The capital punishment can not be separated from the debate of the various countries
concerning its legitimacy from the point of view of human rights. Indonesia's own
Constitution recognizes the right to life is a human right that is non-derogable, namely the
inherent right of every individual that should not be revoked or confiscated under any
circumstances, even in a state of war.

Currently, there are two main groups of thought which states the pros and cons of the
capital punishment, which is the abolitionist and retentionist group. Abolitionists wants the
abolition of the capital punishment as a whole because it is contrary to the human rights
whereas retentionists want the capital punishment continues to be applied based on positive
legal provisions.

The application of the capital punishment in Indonesia serves as an act of retaliation,

general prevention/special education, scare, creating a deterrent effect, even destroy the
perpetrators of certain crimes. In both Code of Penal and outside of it, some criminal act
punishable by the capital punishment is classified as a criminal offense that is heavy, such as
murder, theft accompanied by violence, causing death of the victim, or rape accompanied
with murder.

In cases of serious crimes such as the above, the capital punishment would have been
appropriate if applied for representing the justice demanded by the public. In addition to the
element of deterrent and preventive effect, basically element of retaliation is a strong
argument that is hard to deny as it is a manifestation of the sense of justice in
society. Indonesia as a democratic country should be able to represent the sense of justice in
society.

A criminal on death row and has a chance to prepare his death, make a will, make his last
statements, while some victims can never do it. There are many other crimes where people
are injured by stabbing, rape, theft, etc. To some degree at least, the victims right to freedom
and the pursuit of happiness is violated. When the assailant is apprehended and charged, he
has the power of the judicial process who protects his constitutional rights. What about the
victim? The assailant may have compassion from Investigating officers, families and
 friends. Furthermore, the criminal may have organized campaigns of propaganda to build
sympathy for him as if he is the one who has been sinned against. Reviews These false
claims are publicized, for no reason, hence, protecting the criminal. In arguments of the
capital punishment, there are two lives to think about. Too much emphasis is placed on the
convicted murderer, the one being executed, and the victim is all forgotten. When someone
commits a felony, it is a matter of free will, no one is compelled to commit murder, robbery,
or rape. The average citizens does not have a mind or intentions to become a murderer or
being falsely accused of murder.What he is worried it is about being a victim. In this case,
the penalty is Appropriate to the felony.

Another argument that supports the capital punishment is that most people have a natural
fear of death so people have to think twice about what will happen if they commit a
felony. In case every murderer who killed someone died instantly, the homicide rate would
be very low Because no one likes to die. If the legal system can make it more swift and
severe then the laws would make-capital punishment faster and make-appeals a shorter
process. The capital punishment is important Because it could save the lives of potential
victims who are at stake.3

Some people argue that legalizing the capital punishment means legalizing murder
Because it is like "an eye for an eye". It is an invalid argument, the difference between
punishment and the crime is that the one is legalized while the other one is not. People are
not brutalized by punishment, they are brutalized by the failure to seriously punish the brutal
acts. Also, it is commonly believed the punishment of the crime should equal the crime
itself. For capital murder, rape who subsequently accompanied by murder or even genocide
or the crime of apartheid, what penalties were deemed inappropriate and reflects the
perspective of justice in addition to the capital punishment?

Although scientific studies have failed to show consistent results against the deterrent
effect of capital punishment against perpetrators, it is not the valid point here. What needs to
be emphasized here is that the capital punishment is a just punishment against serious crimes
that have been committed by the perpetrators. Indeed, the Indonesian constitution recognizes
3
http://www.prodeathpenalty.com/ornellaspaper.htm accesed on 1st June 2016
and protects the right to life as a fundamental human right and it is expressly provided in the
Constitution, as well as everyone deserves the right to life. However, these rights are also
restricted by law and the rights of others. If someone deliberately kill, rape and kill, or
commit the crime of genocide or apartheid, whose rights have been violated in first?
the victim or the culprit? Justification for the rejection of the capital punishment in terms of
human rights of the perpetrator was a "missing the point" because the actual perpetrator
himself had violated the rights of victims. Is it considered fair if a perpetrator of genocide or
other grave crimes against humanity only sentenced to prison, while in prison, the perpetrator
himself can still eat, drink, laugh, and perform other activities that the victims can no longer
do?

Often the rejection of the capital punishment is based only on the humans right side of
the perpetrators without seeing the human rights side of the victims themselves, family,
relatives or people who depend on the victim. On the other hand, when the victim's family
had forgiven the perpetrator certainly verdict can be changed with a clear prerequisite.

As a democratic country, the applicable law should reflect and represent the sense of
justice in society. Therefore, the capital punishment is still considered to be maintained as a
form of punishment in Indonesia because the capital punishment considered able to represent
the sense of justice in society. This is not in line with the biased opinion that assumes that the
capital punishment continues to be applied only for interest of the authorities because
basically the initial assumption is a death sentence imposed for the interest of the public.

Indeed, the capital punishment is not solely and automatically eradicate all crimes that
occurred in Indonesia such as sexual offenses, for example, and automatically enabled as the
executor of justice in society. In this case the government needs to work real hard to clean up
the roots of the problem and provide preventive measures so that all forms and types of
crimes can be addressed and minimized. Therefore the capital punishment is imposed as a
last resort to other forms of criminal offenses categorized as serious crimes and is seen
endanger the safety and interests of the State and society at large

The imposition of capital punishment itself should also be in accordance with the norms
contained in the Code of Criminal Law Book of the Criminal Procedure Code and also must
observe the rights of death row inmates. Death row inmate may file an exceptional and
extraordinary efforts to the court and ask for a presidential pardon for relief against the
sentence and the court along with the president shall give consideration and the answer to the
petition filed by death row inmates. Executions also should be prepared as best as possible by
the attorney as a prosecutor and the police as an executor. Also, the capital punishment
should be carried out as humanely as possible and does not cause much pain for death row
inmates.
C. CONCLUSION

The capital punishment is still appropriate to go ahead because it is considered to reflect

the sense of justice in society, especially on the part of the victim because there are elements
of retaliation contained in it, other than that in capital punishment there are also elements of
preventive and deterrent effect, and the capital punishment is not is a tool of the government
to legitimize its rule. Nevertheless the capital punishment does not automatically eradicate
crime in the community, still needed preventive efforts and other efforts to eradicate the roots
of the crimes that occur in the community. Imposition of the capital punishment also must be
in accordance with existing laws and applicable normative. The rights of death row inmates
should also not be ignored and executions should be prepared as possible and as humanely as
possible.
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