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Resurfacing the death penalty debate

Thursday, May 3, 2007

Constitutional Court is now adjudicating the petitions to abolish death penalty submitted by narcotics convicts. Let's see on how they will decide this matter. I wrote an op-ed piece with Faiz on today's JP on the issue. Here's a quote:

The ICCPR does not prohibit the death penalty but its protocols do. As Indonesia is not party to any ICCPR protocol, the practice of the death penalty will not violate any international obligation to the ICCPR as long as the treatment of the inmates on death row and the execution of convicts is conducted in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article 28I (1) of the Constitution guarantees that the right to life cannot be limited under any circumstances, but Article 28J (2) states that "In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law... based upon the consideration of morality, religious values, security and public order in democratic society". The debate goes on as to whether the application of Article 28I (1) -- due to the phrase "cannot be limited under any circumstances" -- is non-derogable, including by Article 28J (2).

The convict's attorneys think that the rights under Article 28I (1) belongs to the cluster of rights which are non-derogable, including Article 28J (2). The government on the other hand, is of the opinion that Article 28J (2) may derogate Article 28I (1). Toward this polemic, there are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of the death penalty is stated nowhere in the Constitution. The wordings of "cannot be limited under any circumstances" under Article 28 I (1) cannot therefore be interpreted so as to mean prohibiting the death penalty. A comparison with Germany and Vietnam's constitutions would reveal that the prohibition of the death penalty is supported with a written, literal expression of the articles of the Constitution. As Indonesia's Constitution has no such provision, the death penalty is so far in line with the Constitution.

Second, by using the teleological approach, it can be seen from the preamble that the purpose of the Constitution is to first "protect the whole people of Indonesia and the entire homeland of Indonesia". Indonesia reportedly has 3.2 million drug users with the number of deaths around 15,000 users per year or an average of 41 deaths per day due to overdose or drug-related AIDS infections. The state has a constitutional obligation to prevent these deaths and to prevent the occurrence of a lost generation. Thus, the protection of the people by the state is paramount and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear that Article 28 J is placed under the same chapter as Article 28 I, which is the amended human rights chapter. It is then conclusive that Article 28 J was made "in relation and with due regard to" Article 28 I. We do not consider it appropriate to interpret that the restriction towards the implementation of human rights under Article 28 J refers to clusters of rights other than Article 28 I. The restriction under Article 28 J appears to cover the whole set of the Constitution.

Moreover, under the social contract construction, perpetrators are deemed to have waived their right to life, which is protected under the law, by acting in a manner that results in the loss of life. Thus, by "knowingly" killing others and being aware that their action entails capital punishment, they have given "implied consent" to be punished with the death penalty.