Can Death Penalty against Drug Criminals be justified?
Oleh: Roby Arya Brata*)
Drug-related crimes in Indonesia have entered an emergency phase, threatening Indonesia’s resilience as a nation and a country. According President Joko Widodo in this country, every day such crimes have caused death and taken away the right to life around 40-50 Indonesias citizens and youth, as well as leaving grief and agony for the families of the victim. Can, therefore, capital punishment be imposed against drug offenders?
The death penalty controversy has been long and will always be a classical debate among legal philosophers and jurists. Each side, whether those who oppose (the abolitionist) or support it (the retentionist), has their own strong arguments.
The arguments of the abolitionists are essentially based on three reasonings. First, it is against human rights, a form of inhuman punishment. Based on this argument, therefore many countries remove capital punishment from their criminal justice systems. Until recently some 97 countries have revoked it. Moreover, according to Article 2 Charter of Fundamental Rights of the European Union year 2000 European Union states are forbidden to impose death penalty.
United Nations General Assembly in the years 2007, 2008 and 2010 had adopted non-binding resolutions demanding a global moratorium against death penalty. Optional Protocol II of the International Covenant on Civil and Political Rights/ICCPR at last prohibits the use of capital punishment by its state parties.
The abolitionists further argue on the constitutionality of capital punishment. The abolitionists in the United States, for instance, oppose it as such a harsh punishment contradicts with Amendment VIII of the America Constitution.
The constitutional argument has also been used by the abolitionists in Indonesia. In 2007, two Indonesian drug-related convicts Edith Sianturi and Rani Andriani, and three Australians well known as members of Bali Nine? Myuran Sukumaran, Andrew Chan, and Scott Rush?applied for a constitutional review to the Constitutional Court on death penalty article in Act No.22/1997 on Narcotics.
The lawyer for the appellants argued that such an article was contradictory with Article 28A Amendment II of the 1945 Constitution. However, such an appeal was rejected by the Judges of the Constitutional Court, arguing that death penalty for serious crimes were a form of human rights restriction.
The abolitionists also reject the arguments of the retentionists who believe that death penalty will deter the potential offenders and, therefore, will reduce the rate of (drug-related) crimes. There is, they argue, no conclusive, scientific evidence confirming positive correlations between the rate of crimes and the imposition of death penalty.
On the other side, the retentionists also strongly argue for supporting the death penalty. The main argument is that death penalty has a deterrent effect preventing potential offender to commit (drug) offenses. Having realized such a severe punishment, he or she will think a thousand times to commit such crimes.
The fact has proven, compared to the countries which do not enforce capital punishment, Saudi Arabia that imposes it based on Islamic law has a low rate of crime. For example, in 2012 the data from United Nations Office on Drugs and Crime showed that the rate of murder in this country was only 1.0 per 100.000 people. Compare this with the same crime in Finland (2.2), Belgium (1.7), and Russia (10.2).
The retentionists further reject the claim of the abolitionist that death penalty is inhuman. On the contrary, they assert that drug-related offenses are a form of extraordinary crime which disregards humanity. This kind of crime has not only taken the right to life (fundamental human rights) of one person but many people, as the Indonesia case has shown.
But, the abolitionists then ask a critical question: if (the producer of) narcotic drugs has caused death, can therefore (the producer of) cigarettes, which has also caused many casualties, be senteced to death? The retentionists argue that the impact of the cigarette consumption to human life and society is much different with that of narcotic drugs. The abuse and misuse of narcotic drugs have in fact trigerred many various (organized) crimes (it is the mother of other crimes), corrupted the law enforcers with all its destructive effect to the state and society (like in Mexico and other latin american countries), spread contagious diseases particularly HIV/AIDS, and therefore weakened the state and society in the long term. If drug-related crimes (and systemic corruption in the law enforcement agencies and the government) are not effectively combated, the state itself can turn into an organized crime state.
Moreover, in the case of Indonesia the retentionists, referring to the Indonesian Constitutional Court, argue that the death penalty does not contradict with the 1945 Constitution. In the United States, such a punishment is also constitutional. In the case of Gregg vs. Georgia, the American Supreme Court declared that, “the punishment of death does not violate the Constitution.”
Drug-related crimes are extraordinary crimes, a common enemy that cripples the joints of most basic humanity and human rights, not only in Indonesia but in many countries.
Therefore, we impose a harsh punishment of death penalty for anyone, either Indonesian citizens or foreigners who involved in drug-related offenses.
However, we must realize that imposing the capital punishment alone will not be able to effectively fight drug-related crimes. Enforcing the narcotic drug abuse laws with integrity or combating corruption in the law enforcement agencies, reducing the demand for narcotic drugs, and rehabilitating the drug addicts are the main effective solutions.
We must also be very careful in imposing death penalty. In a corrupt criminal justice system, an innocent person can become a victim of miscarriage of justice. Even in the United States with a relatively good criminal justice system, 23 convicts in the period 19001987 were wrongly executed due to the miscarriage of justice. Therefore, the convicts must have any fair chance to appeal such a harsh punishment.
In the future, if drug-related crimes in this country are not in the state of emergency death penalty may not be imposed. The Government of Indonesia may need to study a policy option to give clemency to foreign drug criminals by imposing the most severe punishment according to his or her criminal penal system, i.e. death penalty or life sentence.
We realize that the imposition of the death penalty has caused many controversies. However, we, just like other democratic countries that impose it, still believe that this punishment at least will give a strong signal to anyone that we do not compromise with those criminals. As this kind of extraordinary crime has killed and taken the right to life of many people, such a harsh punishment should be justified to provide justice especially for those victims and their families.
Many Indonesia citizens have also been threatened by death penalty in other countries. As a state we will certainly do any effort to help and protect them. However, as affirmed in the United Nations Charter and international law, we respect and will not intervene in the sovereignty (law) of those countries.
We hope that the imposition of death penalty by Indonesia against drug criminals should not sacrifice the good relations and bilateral cooperations between Indonesia and other countries which have long been built. If that happens, it is surely a lost for the people of both countries. Instead, we must be hand in hand and united in the fight against such a serious crime.
*) The writer is an international legal and political analyst and senior lecturer at the University of Indonesia; the author of a book, Why Did Anticorruption Policies Fail? A Study of Anticorruption Policy Implementation Failure in Indonesia, Information Age Publishing, North Carolina, 2014. (This article is the original version of the one published in Jakarta Post, 6 March 2015).
