Thursday, February 24, 2011

THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT FOR NARCOTICS CASES IN INDONESIA

By Luthfi Widago Eddyono

The Constitutional Court of the Republic of Indonesia on October 23, 2007 declared a decision in the case of petition for judicial review of Law Number 22 Year 1997 regarding Narcotics against the 1945 Constitution of the State of the Republic of Indonesia (the 1945 Constitution).

The petitioners filed a petition for judicial review of Article 80 Paragraph (1) Sub-Paragraph a, Paragraph (2) Sub-Paragraph a, and Paragraph (3) Sub-Paragraph a, Article 81 Paragraph (3) Sub-Paragraph a, and Article 82 Paragraph (1) Sub-Paragraph a, Paragraph (2) Sub-Paragraph a, and Paragraph (3) Sub-Paragraph a of Law Number 22 Year 1997 regarding Narcotics against 1945 Constitution of the State of the Republic of Indonesia. All of the aforementioned Articles of the Narcotics Law contain provisions regarding capital punishment, which according to the Petitioners are contrary to Article 28A and Article 28I Paragraph (1) of the 1945 Constitution that guarantee the right to life which cannot be reduced under any circumstances whatsoever (non-derogable right).

The Court opinion:
1. From the perspective of the original intent of the 1945 constitution makers, the application of all human rights set forth in Chapter XA of the 1945 Constitution can be limited. The original intent of the 1945 constitution makers that human rights can be limited is also affirmed by the placement of Article 28J as the closing Article of all provisions regulating human rights in Chapter XA of the 1945 Constitution. Thus, in a systematic interpretation (sistematische interpretatie), human rights regulated in Article 28A up to Article 28I of 1945 Constitution shall comply with the limitations regulated in Article 28J of the 1945 Constitution. The systematic regulation concerning human rights in the 1945 Constitution is in accordance with the systematic regulation in the Universal Declaration of Human Rights which also put an Article concerning the limitations of human rights as a closing Article, that is, Article 29 Paragraph (2), which reads as follows: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
2. Seen from the history of the development of Indonesia’s constitutionalism, as reflected in the constitutions which have been applied, namely the 1945 Constitution prior to the Amendment, the 1949 Constitution of the Republic of the United States of Indonesia, the 1950 Provisional Constitution, and the 1945 Constitution after the Amendment, apparently there has been a tendency not to make human rights become absolute in the sense that under certain circumstances, pursuant to the order of Constitution, human rights can be limited by a law.
3. In line with the view of Indonesia’s Constitutionalism concerning human rights, when Stipulation of the People’s Consultative Assembly Number XVII/MPR/1998 concerning Human Rights was issued as subsequently explained in the Human Rights Law, both legal products seem to be the continuation as well as affirmation that the view of Indonesia’s Constitutionalism does not change because both of them cover the limitations of human rights.
4. Indonesia as a country with the greatest Moslem population in the world and also as a member of the Islamic Conference Organization morally shall pay attention to the contents of the Cairo Declaration of Islamic Rights held by the Islamic Conference Organization whose Article 8 Sub-Article a states as follows “Life is God’s blessing and the right to life is guaranteed for every mankind. It is a duty of individual, society, and states to protect this right from any violation and not to take life except based on the Sharia law”. As a consequence, according to the view of the members of the Islamic Conference Organization, the deprivation of the right to life which is not based on the law derived from Islam law is prohibited.
5. The other evidence showing that the right to life is not absolute, both provisions allowing the application of capital punishment with certain limitations and provisions concerning legal deprivation life, can be found in a number of international legal instruments regulating human rights, such as the International Covenant on Civil and Political Rights (ICCPR), Protocol Additional I to the 1949 Conventions and Relating to the Protection of Victims of International Armed Conflict, Protocol Additional II to the 1949 Conventions and Relating to the Protection of Victims of Non-International Armed Conflict, Rome Statute of International Criminal Court, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), American Convention on Human Rights, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty.
6. Considering that ICCPR still allows state parties to apply capital punishment in their national laws, Indonesia does not violate an international obligation under any covenant. However the issue is then what happen if it is seen from the perspective that the permission to apply capital punishment is limited to “the most serious crimes in accordance with the law in force at the time of the commission of the crime..”. Whether Indonesia has violated an international obligation by applying capital punishment on certain criminal acts in Narcotics Law totally depends on the answer to the question of whether the crimes petitioned for judicial review in the a quo petition belong to the category of “the most serious crimes in accordance with the law in force at the time of the commission of the crime” in Article 6 Paragraph (2) of ICCPR.
7. In other words, the issue is whether the criminal acts in Narcotics Law subject to capital punishment namely:
a. the criminal acts of any person who “without any right and illegally produces, processes, extracts, converts, prepares or provides Narcotics Category I …” [Article 80 Paragraph (1) Sub-Paragraph a];
b. the criminal acts of any person who “without any right and illegally produces, processes, extracts, converts, prepares or provides Narcotics Category I preceded by conspiracy..” [Article 80 Paragraph (2) Sub-Paragraph b];
c. the criminal acts of any person who “without any right and illegally produces, processes, extracts, converts, prepares or provides Narcotics Category I as an organized crime..” [Article 80 Paragraph (3) Sub-Paragraph a];
d. the criminal acts of any person who “without right and illegally brings, sends, transports or transits narcotics drugs Type I …” [Article 81 Paragraph (3) Sub-Paragraph a];
e. the criminal acts of a person who “without any right or illegally: imports, exports, offers for sale, distributes, sells, buys, delivers, acts as broker or exchanges narcotics Category I…” [Article 82 Paragraph (1) Sub-Paragraph a];
f. the criminal acts of a person who “without any right or illegally: imports, imports, exports, offers for sale, distributes, sells, buys, delivers, acts as broker or exchanges narcotics Category I preceded by conspiracy” [Article 82 Paragraph (2) Sub-Paragraph a];
g. the criminal acts of “without any right or illegally: imports, imports, exports, offers for sale, distributes, sells, buys, delivers, acts as broker or exchanges narcotics Category I committed as an organized crime” [Article 82 Paragraph (3) Sub-Paragraph a];
shall be crimes under the category of “the most serious crimes in accordance with the law in force at the time of the commission of the crime”.
8. The consequences of Indonesia’s participation in the Narcotic Drugs and Psychotropic Substances Convention in order to take more strict national measures in legally eradicating Narcotics crimes shall have a higher degree of binding force in the light of international law sources, as regulated in Article 38 Paragraph (1) of the Statute of International Court of Justice than the opinion of the Human Rights Commission of the United Nations to the effect that crimes related to the drugs abuse do not belong to the category of the most serious crimes.
9. In accordance with the provisions of Article 3 of the Universal Declaration of Human Rights juncto Article 6 of the ICCPR juncto the Human Rights Law and the 1945 Constitution as well as various International Conventions related to Narcotics, especially the 1960 UN Convention on Narcotics and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in 1988 the sanction of capital punishment covered in the Narcotics Law has been formulated carefully and accurately and does not apply to all Narcotics-related criminal acts covered in the aforementioned Law, but is only imposed on:
a. producers and dealers (producers shall include planters) who commit such illicit acts, not to abusers or violators of Narcotics/ Psychotropic substances Law committed through licit channels such as medicine factories/pharmacy, pharmaceutical wholesalers, hospitals, community health centers, and drugstores;
b. perpetrators specified in the foregoing item (a) who commit their crimes which are related to Narcotics Category I (for example Cannabis and Heroin);
10. The sanction of capital punishment set forth in criminal articles of the Narcotics Law also gives the sanction of special minimum criminal punishment. It means that, in imposing punishment to violators of the Narcotics Category 1 Articles, the judge, based on the available evidence and his/her belief, may punish the convict with the maximum sanction, namely capital punishment. On the contrary, if the judge believes that, according to the available evidence, voluntary and involuntary elements, the perpetrators are underage, pregnant women, and so on, so that there is no reason to impose maximum sanction, then the perpetrators (although related to Narcotics Category I) may not be sentenced with capital punishment. Accordingly, it is clear that imposing of capital punishment in Narcotics cases shall not be done as the judge wishes and this is in accordance with the provisions set forth in the ICCPR;
11. Also considering whereas by taking into account the irrevocable nature of capital punishment, regardless of the Court’s opinion on the non-contradiction of capital punishment to the 1945 Constitution for specific crimes in the Narcotics Law petitioned for review in the a quo petition, the Court is of the opinion that in the future, in the context of the reform of the national criminal law and harmonization of laws related to capital punishment, the formulation, application and implementation of capital punishment in Indonesian judicial system should carefully consider the following matters:
a. capital punishment shall no longer be a principal punishment, but rather a special and alternative punishment;
b. capital punishment shall be imposed with a probation period of ten years that if the convicts indicate good behaviors may be changed into a life imprisonment or 20 years;
c. capital punishment shall not be imposed on underage children;
d. The execution of capital punishment on pregnant women and mentally-ill persons shall be postponed until the pregnant women deliver their babies and the mentally-ill convicts recover their sanity.
12. Considering whereas regardless of the aforementioned idea of legal reform, for fair legal certainty, the Court recommends that all decisions on capital punishment that have obtained permanent legal force (inkracht van gewijsde) shall be carried out in a proper manner.

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