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Indonesia: The draft Criminal Code: A window of opportunity

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Welcome to Bali
Indonesia has been in the process of amending its Criminal Code (KUHP) over the past 53 years. To this day, the House of Representatives is still vigorously debating its various provisions.

The current Criminal Code is a vestige of Dutch colonialism. It has been in force since 1918 with only minor changes made over the century. The Indonesian government wants a new penal code that will be relevant to a modern society.

One recent interesting development in this decades-old process is the amended provisions in the Criminal Code on the death penalty. Under the existing Criminal Code, the death penalty is one of the principal punishments for certain crimes, such as crimes against state security, murder, theft resulting in deaths and crimes relating to navigation and aviation.

Right now, the House is considering amending the provisions relating to the death penalty in the Criminal Code so that it becomes a "special form of punishment" that may only be imposed alternatively as a "last resort."

This means, therefore, that if the present amendments are adopted, judges will be constrained to impose "less severe" sentences for the above mentioned crimes, such as life imprisonment, instead of the death penalty. It is only when a judge deems these "less severe" sentences to be insufficient for achieving the objectives of the penal system (i.e. protecting society, rehabilitating the convict, etc.) that the judge would potentially be allowed to resort to a sentence involving the death penalty, whether on a "conditional" or unconditional basis.

First, the judge could impose a "conditional" death penalty. This means that the convicted person would not be executed for 10 years, a period starting from the denial of clemency by the President. For the judge to impose a "conditional" death penalty, he would decide whether the accused fulfills certain conditions, which are quite subjective. For instance, the judge would need to ascertain how the public regards the accused, whether the accused has shown remorse or whether there is a chance for him to be reformed.

If within this 10-year "waiting period" the inmate displays good behavior or proves himself to have been "reformed," the law and human rights minister would have discretion to commute his sentence to life imprisonment or 20-year maximum imprisonment. Otherwise, the attorney general may order his execution.

2nd, the judge could impose outright the death penalty on an unconditional basis. In this case, if the inmate has not been executed within a period of 10 years, then the President may commute his sentence to life imprisonment. It is unclear, however, when the 10-year period starts, whether after the final judgment or upon denial of an appeal for clemency.

There are some who view these amendments positively, claiming that this may be a way for Indonesia to move toward the abolition of the death penalty. However, considering the length of time it took for Indonesia to consider amendments to the existing Criminal Code, if the revised Criminal Code still retains the death penalty, it may take several more decades to remove it.

Indonesia should really use the current process of amending the Criminal Code to get rid of the death penalty. It is widely acknowledged that abolition of the death penalty contributes to respect for human dignity and progressive development of human rights, which is why the world is abandoning this practice. More than 2/3 of countries around the world have abolished the death penalty, either in law or practice.

Until very recently, Indonesia was on the cusp of moving away from the death penalty. From 2007 to 2010, it had always voted against the resolution to impose a moratorium on the use of the death penalty at the UN General Assembly.

In the year 2012, however, for the 1st time, Indonesia moved from opposition to abstention and has consistently remained so in the following resolutions on the issue. This attests to a progressive shift in Indonesia's attitude toward the death penalty.

Unfortunately, in 2015, Indonesia regressed when it executed 14 persons in a single year. This was followed by executions of 4 more persons in 2016.

As the International Commission of Jurists (ICJ) has said before, the death penalty constitutes a denial of the right to life and freedom from cruel, inhuman, or degrading treatment. In 2012, during the 2nd cycle of Indonesia's Universal Periodic Review at the UN Human Rights Council in Geneva, several countries recommended that Indonesia consider abolishing the death penalty.

Even the alleged deterrent effect of the death penalty has been repeatedly called into question. Overwhelming studies from around the world conclude that the death penalty is not effective at deterring crime at a greater rate than alternative forms of punishment.

In Indonesia, data released by the National Narcotics Agency revealed an increase of drug-related offences following the executions in 2015, further debunking the deterrent myth.

After almost 100 years since 1918, a real opportunity finally presents itself for the country to amend its criminal laws in accordance with international human rights law and standards. This is the perfect window of opportunity for Indonesia to abolish the death penalty once and for all.

As the former United Nations Secretary General Ban Ki-moon said, "the death penalty has no place in the 21st century." Indeed, the death penalty has no place in modern Indonesia. If Indonesia wants a modern Criminal Code for a modern society, then it should do away with such a barbaric practice.

Source: The Jakarta Post, Paulina Tandiono, March 6, 2017. Paulina Tandiono is a Legal intern at the office of the International Commission of Jurists (ICJ).

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