Thursday, 1 September 2016

Executions: Indonesia disregards its own laws

Source: The Jakarta Post (20 August 2016)

Recently, the Attorney General’s Office (AGO) held another round of executions and, similar to last year’s executions, all those executed were drug offenders.

Hours after the executions, Attorney General M. Prasetyo reiterated that other countries should respect the sovereignty of Indonesian law, denying any appeals from countries concerned about the imposition of the death penalty in Indonesia.

The fact that the death penalty exists in our law is not in question, but this does not necessarily mean that the death penalty has always been implemented flawlessly.

In fact, given that the criminal justice system is human-made, it is inherently prone to human error.
In the days leading up to the execution, serious unfair trials and miscarriages of justice experienced by those to be executed were raised by lawyers, family members and human rights groups.

And now we have something more: an unlawful execution.

Outcries over the latest executions came from rights watchdogs, which identified two main errors.
First, at least two out of four of the executed — Seck Osmane and Humphrey Ejike — had pending clemency decisions.

According to the Article 13 of the Clemency Law, an execution of a prisoner who has filed a clemency petition cannot be carried out before the President has issued a presidential decree on the clemency decision.

Article 7 paragraph (2) of the same law previously regulated that one could lodge a clemency petition one year after one’s court decision was declared final and binding.

However, only last June the Constitutional Court declared that such a limitation was not in accordance with the 1945 Constitution and therefore revoked the article.

At that stage, neither of the two prisoners had filed clemency petitions until a few days before the executions. It seems obvious that legally speaking, both Seck and Humphrey still had a right to clemency and could not be executed before the President had made a decision over their petitions.

Second, the AGO violated the law on execution procedures, which regulates that executions cannot be carried out until 72 hours after a prosecutor notifies the condemned prisoners. All 14 death-row prisoners received their notification on July 26 around 3 p.m.

This meant that the executions could only be conducted, at the earliest, on the afternoon of July 29. In reality, the executions took place in the early hours of that day.

Given these two violations, it seems clear this latest round of executions was unlawful.

International communities have taken up these violations and condemned them. The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, for example, called on Indonesia to put a moratorium in place, defining Indonesia as the “most prolific executioner in Southeast Asia”. Is this the international image that Indonesia wants to project?

European and Australian governments have also raised concerns over allegations of unfair trials, despite no European or Australian nationals being listed for execution.

This demonstrates that their appeal to Indonesia to halt the execution is not a matter of defending their own nationals, but rather a matter of universal principle.

A distinguished Islamic philosopher from Oxford University, Professor Tariq Ramadan, has also sent an open letter to President Joko “Jokowi” Widodo. He enlightened the President on how sharia sees the death penalty. He argues that “rahmah [compassion] is an absolute necessity, an essential principle, an imperative duty, even if there is no doubt and all the conditions are gathered”.

Despite the serious flaws and international criticisms, the AGO appeared adamant about its position on executions. Prasetyo has repeatedly said that other countries must respect the sovereignty of Indonesia’s law.

Talking about such sovereignty, the attorney general himself has violated Indonesian law with those infringements. How can we expect foreign countries to respect our sovereignty of law if the law enforcers themselves blatantly disregard it?

That seems to be a paradoxical position and a hypocritical standing. This legal calamity can go on no longer. President Jokowi must stop any further executions.

Thorough evaluation of death penalty cases by an independent team established by the President is imperative.In the meantime, while the team is reviewing all death penalty cases, Indonesia must implement a moratorium with a view to abolishing the death penalty for all crimes.

This third round of executions has shown us that even where an execution is “legal”, it does not mean that it is not intrinsically problematic.

Further, it potentially kills an innocent person. How many innocent lives must we end until we stop this senseless killing?
The writer is a legal fellow at Reprieve UK, based in Jakarta. Reprieve UK advocates for worldwide abolition of the death penalty

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