Deadly Old Arguments

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Independen, Jakarta - Death penalty in Indonesia is still a matter of debate, even among judges.  Not a few have ruled the death penalty under the pretext of its deterrent effects and that it is in accordance with the Constitution.  But there are also those who respect the right of the accused of the opportunity to correct themselves while being sentenced to prison.

Such debates are somewhat outdated because, in the Netherlands, the country of which Indonesia's regulation is based on has abolished the death penalty since 1870. At that time, the death penalty for civilian convicts was removed with the exception of military convicts and war criminals.  However, in 1983, the windmill country finally abolished all articles of death sentence in its legislation.

Not only the Netherlands but hundreds of countries have also abolished the death penalty since the enactment of the International Covenant on Civil and Political Rights by the UN General Assembly in 1976. Although Indonesia has ratified this convention, it still maintains the death penalty.  In the International Covenant, the death penalty is tightly regulated. One of which is the sentencing of the death penalty must fulfill the fair trial principle.

Independen.id looked at the data of court verdicts for the 1997-2008 period. As much as 112 rulings were reviewed out of a total of 258 with capital punishment sentences at the district court level.

Copies of these court rulings were collected by the Institute for Criminal Justice Reform (ICJR) from the district court level up to the Supreme Court.

 

Of the total 112 rulings, there were 134 defendants who received the death penalty.
The total number of judges in trials with the death penalty rulings were 340, of which 38 were female and 292 were male.

 

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Of the 112 cases, drug offenses that received capital punishment ranked the highest with 63 cases, followed by homicide 46 cases and terrorism 3 cases.

Arguing for the Death Penalty

Judges who handed out capital punishment in drug offenses mentioned a number of similar reasons. In all of the 63 cases, judges declared in their incriminating ruling that drug offense is an extraordinary crime.

Another reason was that drug abuse may fatally damage someone’s mental as well as physical health, especially in younger generations. They can also be a motivation for other crimes, disrupting the country’s security and therefore stability. Generally, the defendants who were sentenced to death were in possession of large quantities of the illegal substance or more than one kilogram.

Other incriminating factors include perpetrators were part of an international illegal drug network, denied their acts, were previously convicted as someone who runs the trade and even managed to control them from behind prison bars. Judges often stated that there was nothing from the defendant’s behavior that can alleviate their punishment.

The legal basis on which the capital punishment for drug offenses was laid out was the Constitutional Court ruling No. 2/PUU-V/2007 and No. 3/PUU-V/2007. These rulings stated that the death penalty in 2009 Law no. 35 on Narcotics was not against the 1945 Constitution.

Furthermore, judges often used expert opinions that enforced the death penalty. For example, the Banda Aceh district court ruling on a 78-kilogram amphetamine case with the defendant Abdullah in 2015. The judges cited a number of opinions made by law experts that were cited in books about the death penalty.

Presiding Judge H. Sulthoni together with other members of the judges’ panel, Makaroda Hafat and Eddy, cited an opinion from Lambroso and Garofalo in a book by Andi Hamzah & A. Sumangelipu, “Death Penalty in Indonesia, Past, Present and Future (Pidana Mati di Indonesia di Masa Lalu, Kini dan di Masa Depan), Ghalia Indonesia, Jakarta, 1985”.

“The death penalty is an absolute instrument that must exist within a society in order to remove individuals who cannot be corrected. Naturally, such individuals are those who have committed extraordinary crimes,” H. Sulthoni said in his deliberation.

In addition to that, H. Sulthoni also supported their death sentence with a survey conducted by the National Narcotics Agency (BNN) in 2014, which stated that there were 3.8 to 4.1 million drug abusers in the country.

“Drug abuse has a huge social impact, it’s a motive for criminal acts, and increases social vulnerability,” he said.

Judges’ Deliberation on Death Penalty Rulings
Absolving factors: None
Homicide: 
Sadistic act
Endangering the community
Tortuous and traumatic for the victim’s family
The defendant did not regret his/her action
Convoluted testimony
The defendant was a recidivist
Terrorism:
Enemy of humanity
The defendant did not regret his/her action
Caused a lot of casualties
Ruin the country’s image
Involved in a terrorist network
Drug offenses:
Extraordinary crime
Destroys the mental and physical wellbeing of the younger generation
The motivation for other crimes
Part of an international ring
Defendant denied or convoluted testimony
Repeat offender
A disturbance to the society
Narcotics found in large quantities
Disturbs State stability
The business was controlled from behind prison bars
Source: ICJR, developed by independen.id

In another case, a 58.7-kilogram of marijuana with the defendant Mgs. Zainal Abidin received a death sentence after the case was appealed to the South Sumatra High Court in 2001. The judges even cited Koranic verses in their deliberation.

Harifin A. Tumpa as the presiding judge cited Al Baqarah verse 178 which says, “O Believers, it is prescribed for you to perform qishash [legal retribution] for those murdered.”

“The panel of judges could not imagine how many people have been victims of the defendant’s actions, maybe hundreds, thousands, tens of thousands, maybe even hundreds of thousands,” said the 2009-2012 Chief Justice in a ruling number 184/PID/2001/PT. PLG.

The differing deliberations between drug offenses and premeditated murder are that judges viewed the defendants of the latter have committed sadistic acts (especially in mutilation cases), endangered the community, and have caused suffering and trauma to the victim’s family.

Furthermore, the panel of judges also deemed that nothing could alleviate their sentence. That is, the defendant did not regret his/her action, gave convoluted statements, and some of them were re-offenders.

For former Chief Justice Gayus Lumbun, capital punishment was a positive law and does not contradict the Constitution.

Observing the 1945 Constitution Article 28 letter J, which explains that in exercising rights and freedom, everyone is obliged to submit to restrictions as stipulated by the Law. This means that someone’s rights and freedom can be restricted according to the law, including their right to life.

“Well, [letter] J stipulated that human rights must be protected. However, it must be regulated by the law. Now, some of the law in our positive law still carries the maximum death penalty,” he told independen.id, Monday (5/27).

While presiding as a Supreme Court judge, Gayus had sentenced dozens of convicts of premeditated murder cases to death. One of them was Wawan with the victim Sisca Yovie. In the beginning, Wawan was sentenced to life, but when the case reached Gayus and his colleagues, the sentence was appealed to death.

“If you are afraid of the death sentence, you better not violate the articles that contain the death penalty. [This is] in order to build our Nation’s culture to not easily violate laws that are punishable by death,” Gayus said.

In addition, he continued, the death sentence is not really a deterrent effect.

“Even with the death penalty, there are still many who commit [crime]. Imagine if there is no capital punishment. It’s not vice versa,” he said.

However, on the other hand, Gayus agreed if the death penalty is converted to other forms of punishment, such as life imprisonment after an appeal was made, cassation, or reconsideration. Under specific terms and conditions. The defendant or convict, he said, is obliged to become a justice collaborator in order to uncover criminal syndicates such as terrorism or drug rings.

“For example, if one is a drug dealer, one must be able to unravel [drug] cells, the gangs, and stop them from offending again. If one, for example, a terrorist, one must be able to persuade one’s cell to not do it again or stop,” Gayus said.


Judges Against Death Row

Not all judges in support of the death penalty. Of the 46 cases of premeditated murder with capital punishment, there was one with a dissenting opinion in the judges’ panel.

In a 2008 murder case that happened in Depok, West Java, presiding Judge Budi Prasetyo did not agree with the death ruling. At that time, Budi had hoped that the three teenagers who were convicted of premeditated murder, were sentenced to life instead.

One of the arguments that he mentioned was that the life and death of a man should solely be in God’s hands.

“That the amendment of Article 28 letter i of the 1945 Constitution stipulated that a person’s right to life must not be restricted,” Budi said.

However, the two other members of the judge's panel Asep Saefudin and Agung Sulistyo differed. They concurred with the death sentence citing protecting the public from a heinous crime as the reason.

“After the panel deliberated, a consensus was made based on a majority vote (In this case Judge Member I and Judge Member II), that the defendant is sentenced to death,” the ruling read.

The debate over capital punishment also occurred between judges of the Banten High Court and the Supreme Court.

In a drug offense case with Nigerian defendant Simon Ikechukwu Ezeaputa, the defendant was sentenced to death by the Tangerang District Court in 2015. It was overturned to life by the Banten High Court under a number of considerations.

Presiding judge Abdul Hamid Pattiraja at Banten High Court said that the death penalty violated human rights principles.

“The death penalty almost has no place in a democratic and cultured society,” he said.

In addition to that, the Banten High Court’s panel of judges also considered the death penalty as the cruelest punishment because it gave no hope for the convict to pay for their crimes.

“The imposition of death penalty tends to emphasize the aspect of revenge,” the ruling continued.

However, when the life sentence was appealed at the Supreme Court, the panel of judges, presided by Judge Surya Jaya, sentenced Simon to death. The panel considered Banten High Court’s ruling only considered one side, those who were against the death penalty.

“The High Court only considered the interest of the defendant, and did not consider the consequences of the actions of the defendant that have victimized the Indonesian people,” Surya said in a ruling number 2629 K/Pid.Sus/2015.

Another incriminating factor was that Simon actually controlled his drug business from behind prison bars. “The defendant was still responsible for the imports of illegal drugs into the country and gave out orders and controlled [the business] from his cell,” Surya continued.

In other cases, rejection towards the death penalty was made known by other District Court judges. In a homicide case with defendant Sumardi alias Podreng at Sungai Liat District Court in 2015, the panel of judges agreed to rule against the prosecutor’s demand for the death penalty.

Presiding judge Andreas P. of Sungai Liat District Court with other members of the judges’ panel Yoedi Anugrah Pratama and Erven Langgeng Kasih sentenced the defendant to life.

“The value of justice is not only aimed at satisfying the wishes of the state, the community, and the victim, by chastising and blaming the perpetrators –an eye for an eye, tooth for a tooth. But, justice for the perpetrators to be rehabilitated and returned to the community,” Andreas said in a ruling number 151/Pid.B/2015/PN Sgl.

In 2015, the panel of judges at Medan District Court denied the death sentence for drug offender Robinson Tambunan and Yusri Iskandar. The evidence gathered, in this case, was quite large, 154 kilograms of marijuana.

The presiding judge at Medan District Court Jhony J. H. Simandjuntak along with two other judges of the panel Aksir and Wismonoto considered a Supreme Court jurisprudence which once ruled against the death penalty.

In addition, they also considered the function of criminal justice that has corrective, preventive, and educational purposes. The judges’ panel argued that capital punishment does not provide an opportunity for defendants to correct their behavior.

The Medan District court judges’ panel sentenced the defendant to life imprisonment.

“It has not been proven yet if capital punishment can cause a deterrent effect for other offenders,” said Jhony in their ruling.

There are a number of other cases in which judges ruled against capital punishment even when the nature of the crime was heavily incriminating: a large number of narcotics or sadistic premeditated murder.

Examples of such cases, many of them were under the public spotlight, is Babe with his four mutilated underage victims, drug offense cases with defendants Edo Rinaldi, Hermanto Kusuma, Iwan Setiawan, Jhon Sebastian, and others. The defendants of these cases were not sentenced to death but instead were sent to prison for life or 20 years.


Faulty Investigation Process

Based on ICJR's report, juridical, philosophical, and social considerations should not be the only benchmark for a death sentence.  In a lot of cases, defendants who received the death sentence generally had a middle-to-lower economic background.  Even during the police investigation process, many were not accompanied by a legal counsel. This has aroused suspicion of a flawed litigation process starting from the police investigation.  The defendant was forced and tortured in order to get a confession that is in line with the Police's investigation report (BAP).

One of such cases that received the public's attention was the case of Yusman Telaumbanua.  Yusman finally got his freedom in 2018 after being granted remission on August 17.

The Nias young man was sentenced to death in 2013 by GunungSitoli District Court in a sadistic murder case.  When convicted Yusman was only 16 years old. He only said he was 19 after being coerced by investigators, in this case, police officers and prosecutors.

They accused Yusman of taking part in removing the bodies of the victims.  Even though according to his legal assistant, Arif Nurfikri, there had been no witnesses to corroborate his involvement.

"There are 4 other [suspects] that are still on the run, who are allegedly the main perpetrators.  So, there was no witness, " he said on Wednesday (12/06).

Arif also added that Rusula Hia, the only witness in the case, denied Yusman's involvement.  Rusula is Yusman's older brother who was also named a suspect.

Brief Timeline
April 2012. Three homicide victims: Kolimarinus Zega, Jimmi Trio Girsang, and Rugun Br. Halolo were asking around for geckos and willing to pay a high price. Jimmi, who was Yusman’s boss, asked where he could purchase one. Yusman said his brother, Rusula Hia, has geckos for sale.

The three victims went to Nias to see Rusula.

At 10 pm, Rusula asked his neighbor, an ojek (motorcycle taxi) driver to pick up his three guests at the city square.

When the three victims failed to arrive, Yusman and Rusula went after them. They claimed that they saw four suspects including their neighbor wielding a machete and was about to kill the three men. One of the suspects asked Yusman and Rusula to leave the area.

Out of curiosity, Yusman and Rusula followed them into a plantation, where the four suspects butchered all three victims.

Yusman and Rusula ran away. But police assumed they were involved. Yusman did not report the incident to the Police for fear of retaliation from the suspects.

Yusman Telaumbanua: Unfair Trial
((searah jarum jam dari kiri atas)) 
Child prisoner:
Yusman was underage (16) when he was sentenced to death by Gunung Sitoli District Court
Role:
There were no witnesses that saw Yusman’s involvement since the 4 main suspects were still at large
Power relation:
Yusman was being threatened by one of the suspects
Investigation process:
During the investigation process, Yusman was forced to state that he was 19.
Charges:
Yusman’s own legal advisers when he was tried at Gunung Sitoli District Court suggested the death penalty to the judges.
Court proceedings:
2013: sentenced to death at Gunung Sitoli District Court
2016: submitted for a review at the Supreme Court level
2017: his guilty ruling was upheld by the Supreme Court; however, his sentence was reduced to 5 years.
2018: Yusman got his remission. He is free.
Source: Commission for Missing Persons and Victims of Violence (Kontras)

Another controversial case is the premeditated murder involving Dita Desmala Sari. Dita was sentenced to death in 2015 by Siak Sri Indrapura District Court.

According to ICJR, Dita was coerced by her husband, M. Delfi, to kill three people by strangling. When the murder occurred, Dita was 17 years old and should have been tried in a Juvenile Court. During the court proceeding, Dita’s legal counsel was ineffective. There was no defense statement nor witnesses that were presented during the trial.

Brief Timeline
August 2013. M. Delfi, Dita’s husband asked her to come with him. He said he wanted to take a stroll and forced Dita to get on the motorcycle with him.

They rode into a forest and found a boy who was already unconscious. Dita did not recognize him. Delfi forced Dita to take the boy’s pants off. 

He kept on pushing her until finally, he did it himself. Delfi then told Dita to tie the boy’s neck around with the pants. He then took out a utility knife.

Delfi kept ordering Dita to tighten the pants until the victim finally died.

Within a week, Delfi had forced Dita to kill three boys.

On February 12, 2015, the panel of judges at Siak Sri Indrapura District Court had found Dita guilty of her involvement in premeditated murder and sentenced Dita to death.

Dita Desmala Sari: Unfair Trial
Child Prisoner:
Dita was 17 years old when the incident occurred
Legal counsel:
Did not receive effective legal counsel. No defense statements
Power relation:
Dita was involved for fear of her husband
Investigation process:
When she signed the police investigation report, she was not accompanied by a legal counsel, until she was finally detained
Ruling:
The ruling should be null and void because she was tried outside the Juvenile Court
Court proceedings:
The trial was carried out without a defense statement from Dita, nor witnesses.
Source: ICJR

Reflecting on the two cases, Arif Nurfikri of Kontras viewed that arguing on the death penalty is fruitless when the country’s judicial system itself is still flawed.

“The main problem is whether our investigation process, our judicial process is already in accordance with the law or not,” he said.

Furthermore, Kontras hoped that law enforcement such as the police and prosecutors would jointly oversee a case. So that when it finally reached a court ruling, it is not premature.

“Well, the mechanism of supervision carried out by the prosecutor’s office is often ignored [by] police investigators. Don’t be surprised that [often] there are documents going back and forth [between the two institutions],” Arif explained.


Death Penalty Trend in Post-Reformation Age

The death penalty may continue to be a subject of debate among judges. However, ICJR reported that there’s an increasing trend for capital punishment over time.

Between 1997 and 2018, ICJR recorded at least 258 death sentences, which peaked during Joko “Jokowi” Widodo’s term of presidency.

Supreme Court spokesman Andi Samsan Nganro admitted that death penalty sentences have surged during Jokowi’s era. According to Andi, the President had declared war against drug networks during his first term. Death to major drug dealers was one of them.

Courts also still hand down death penalties for convicts of sadistic premeditated murder or those with more than one homicide victim.

“In recent time courts at the district level, high court, and even Supreme Court all have handed down capital punishment, especially in drug offense cases, and also premeditated murders that were carried out by sadistic means or with several victims,” Andi said in a text message to independen.id on Friday (6/14).

Meanwhile, ICJR researcher Iftitah Sari viewed that Jokowi’s declaration on the war on drugs that he issued during the International Anti-Narcotics Day, June 26 in 2015 and 2016 greatly affected the perception of the country’s judges.

“Well, in 2015, it can be seen from the ruling and the charges [for the death penalty]. After [Jokowi’s war on drugs declaration], the president immediately executed many foreigners [drug convicts],” Iftitah said.

This, she continued, can be considered as a showcase for President Jokowi to prove his strength as head of state. Iftitah viewed that there was a political element in the executions to garner more public sympathy.


“Drugs is a sexy issue. It is a very strategic move to gain more sympathizers. To attract more sympathizers and therefore popularity,” she added.

Death Penalty Trend:
Number of death penalty rulings
Homicide: 46
Terrorism: 3
Drug Offense: 63
Source: ICJR

Death penalty trend 1997-2018 period
Type of cases
((blue)) Drug Offenses
((Yellow)) Premeditated Murder
((green)) Terrorism

Number of cases
Source: ICJR

Iftitah viewed that by giving out a death sentence, there is a certain pride for the judge. She gave an example when a bouquet of flowers was sent to Palembang District Court in South Sumatera for sentencing nine drug offenders to death in February 2019.

“Because some people appreciate [these kinds of things], [the judges] were revered for their death sentence. Which is strange. How can one be proud for sending someone to death?” Iftitah said.

ICJR insisted that death penalty ruling violates human rights. Although there are other rights that can be limited, it should not include the right to life.

In addition, the waiting period before the execution takes place is torture in itself for death row inmates. According to ICJR, the wait time for death row inmates is unclear, some had to wait 10 to 29 years.

“In the Criminal Code Bill, we are encouraging the abolishment of [death penalty]. At the very least, make it harder to execute, make the standard higher. In the Bill there is an automatic replacement of [death] sentence. If a convict [had to wait] for 10 years then execution is not necessary,” Iftitah added.

Author: Irham Duillah

 

 

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