Muhammad Bahrul Ulum

Written by: Muhammad Bahrul Ulum *

Controversy of death penalty, nowadays, is still going on in Indonesia. Pros and cons of this issue have stood based upon the different backgrounds and perspectives. In some parts, the proponents emphasize on the legal justice, for whether victims or all criminal effects caused by perpetrator. On the other hand, the opponents stand on the defense and protection of the human rights aspect.

In respect of controversy, then, the death penalty has undergone a starting point. It has begun while people in many countries agreed the Universal Declaration of Human Rights (UDHR) in 1948 which states in Article 3 that everyone has the right to life, liberty and security of person. Furthermore, this kind of rights has been also stipulated in International Covenant on Civil and Political Rights (ICCPR) which the right to life is categorized as non-derogable rights. It means the right to life cannot be diminished and alleviated by anyone, anytime and anywhere. In other word, stipulating the right to life is a reaffirmation that sentencing death is the violation of human rights.

Human Rights in Indonesian Legal Policy
According to Indonesian Law, regulation of human rights can be found in the 1945 Constitution of the Republic of Indonesia (hereinafter called the 1945 Constitution) and Law Number 39 Year 1999 on Human Rights (hereinafter called Human Rights Act).

The 1945 Constitution, Chapter XA on Human Rights in Article 28A paragraph (1), determines that everyone has the right to life and the right to defend their life and humanity. According to this article, we can understand that the right to life is one of the fundamental human rights which are recognized by the country and it implicitly affirms there is the constitutional refusal of law towards death penalty. Conversely, disobedience or violation of this article is the responsibility of government, due to protection, advancement, enforcement, and fulfilment of human rights are on the government hand (vide Article 28I paragraph (4) the 1945 Constitution).

Article 28A (1) the 1945 Constitution has been strengthened by Article 28I paragraph (1) the 1945 Constitution which determines the right to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances. Then, article above has been reaffirmed in Article 4 Human Rights Act. It indicates that the right to life based on our legal policy is non-derogable rights.

Derogation of Human Rights
Although human rights are the inherent rights for every person guaranteed in the 1945 Constitution, it does not mean their implementation is done at large without any restrictions. In certain condition, on behalf of protection of citizens’ human rights, human rights can be derogated or repealed.

In respect of derogation of human rights, the question is that can government deduct all human rights stipulated in the 1945 Constitution, including non-derogable rights?  Prior to answering the question above, we can refer to Article 28J the 1945 Constitution. In paragraph (2), Article a quo determines in exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.

Based on the article above, we can interpret that human rights in exercise can be deducted by government, as long as the deductions are acted in the law. Article above does not determine particular rights which can be deducted, so that all human rights including non-derogable rights can be deducted in respect of certifying recognition and esteem towards human rights of others due to consideration of justice based on moral and religious values, security and public order.

Extraordinary Crimes, Corruption and Derogation of Rights
Extraordinary crimes can be defined as ‘the most serious crimes concern to the community’ relating to the violence to humanity and genocide. We can extend that crimes relating to the violence to humanity are gross violations of human rights such as narcotic, terrorism and corruption.

To eradicate extraordinary crimes, Indonesian Law divides the law between the regulation of ordinary crimes and regulation of extraordinary crimes. Extraordinary crimes have not been based upon Penal Code (KUHP), but they have been regulated in peculiar law (such as Terrorism Act, Corruption Act, and Narcotic Act), because Penal Code is only applied to the ordinary crimes.

In respect of criminal punishment, the sentence of extraordinary crime has been diverse. Corruption, for example, it has been determined in Article 2 Law Number 31 Year 1999 on Eradication of Corruption (Corruption Act) as follow:

1. Everyone disobediently doing the action to enrich to himself/herself or others or certain corporation which harms finances of country or economic matters of country/state, convicted the punishment with life imprisonment or prison at least 4 years to 20 years and fine at least IDR 200.000.000,00 to IDR 1.000.000.000,00.
2. In respect of corruption as paragraph (1) done in certain condition, the death penalty can be imposed.

Term “certain condition” in paragraph (1) above can be traced in explanatory section of Corruption Act. Certain condition is defined while country undergoes a natural disaster based upon prevail law, national disaster, repeating corruption, or economic and monetary crises. Then, the explanation of this article was amended in Law Number 20 Year 2001 on Amendment of Law Number 31 Year 1999 on Eradication of Corruption which states “certain condition” was explained while the criminal action is undertaken towards funds allocated to tackle the dangerous condition, natural disaster, effect of vast expanse of social turmoil, economic and monetary crises and repeating corruption.

According to all norms and explanations above, Corruption Act in Indonesia has not seemed brave and bearing to eradicate corruption. It can be examined through the low criminal threat and the vague norm in regard to apply the death penalty. Ideally, death penalty ought to be imposed to corruptor because corruption is a serious crime. Besides, in accordance with substances or criteria in Article 28J paragraph (2) the 1945 Constitution, regulating and imposing death penalty to corruptor cannot be considered as the violation of human rights. It means death penalty threaten and imposed to corruptor is intended to guarantee the recognition and respect of human rights of others and in demand of justice, security and public order.

Imposing death penalty to corruptor does not mean as disobedience of non-derogable rights. In view of certain conditions to end up justice, security and public order, the 1945 Constitution designates non derogable be possible to be derogated. Moreover, although ICCPR states no derogation to the right to life, it makes possible to every country conceives adjustment that death penalty can be applied for serious crimes accorded to Article 6 paragraph (2) stating, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law…”.

According to analysis above, we can conclude that it is the appropriate time to re-evaluate the sentence to be imposed to corruptor in order to protect human rights of others and materialize public order. It also needs civil society to force government and representative house to amend the Corruption Act by strengthening the death penalty and its specific regulation in accordance with criminal threshold (minimum and maximum) into the Act. By the death penalty, it will give fair promise of decreasing corruption in Indonesia.

* Muhammad Bahrul Ulum, S.H., LL.M. Candidate at Osmania University, India. This paper was conveyed in public discussion held by Indonesian Student Association in Hyderabad, India on 14 September 2013.

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