Tuesday, August 16, 2016

After the latest round of executions, and with the death penalty seen as a justified response to drug-related crimes, is there any hope for human rights reform in Jokowi’s Indonesia?

Rights in the firing line

After the latest round of executions, and with the death penalty seen as a justified response to drug-related crimes, is there any hope for human rights reform in Jokowi’s Indonesia?

Indonesia’s most recent executions have brought the total number under the presidency of Joko Widodo (“Jokowi”) to 18.

Jokowi’s willingness to implement the death penalty is a break from the informal moratorium by his predecessor, Susilo Bambang Yudhoyono, and is also in clear contrast with Indonesia’s previous average of executions —  fewer than two each year over a 30-year period.

Supporters of the death penalty in Indonesia have justified the executions based on the challenges the country faces in combatting drugs and state sovereignty, as well as by claiming that capital punishment does not violate international law.

Supporters have pointed at Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), ratified by Indonesia, which states that “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.”

Indonesia’s use of this article to support capital punishment ignores that the ICCPR was adopted in 1966.  On top of this, the article was a compromise between abolitionist states – at that time in the minority – and states that retained the death penalty.

Since the adoption of the ICCPR, international standard-setting pertaining to the death penalty has evolved. Limitations have been placed on capital punishment. Over time, more states have taken steps to abolish the death penalty, a development reflected in the second Optional Protocol of the ICCPR on the abolishment of the death penalty, which entered into force in 1991 but which Indonesia is yet to ratify.

Indonesia does not follow this global trend – at least not for now. Even the deep flaws of Indonesia’s laws and legal process, especially in cases where the death penalty has been sought, have not held Jokowi back from going ahead with executions — another clear violation of international standard-setting.

But the bottom line is that Indonesia’s use of the death penalty denies individuals their most fundamental human right: the right to life, enshrined not only in international law but also in Indonesia’s Constitution.

Human rights organisations, both in Indonesia and abroad, have expressed their outrage over the executions, pointing at Indonesia’s human rights obligations. Amnesty International has, for instance, argued that the Jokowi presidency was supposed to be a new start for human rights in Indonesia.

Arguments such as these appear to refer to the nine-point priority agenda put forward by Jokowi and his deputy Jusuf Kalla during their campaign, which included law enforcement and human rights.

Closer reading of this point reveals that “human rights” are referred to in the context of finalising land conflicts, the “protection of children, women and other marginalised groups”, and settling past human rights abuses (a rocky process that is now even more doubtful following the appointment of retired General Wiranto as Coordinating Minister of Political, Legal and Security Affairs).

As such, the death penalty has been absent from the start as a human rights issue, and instead is considered crucial for the eradication of drugs in Indonesia – a point that is included in the Nawa Cita (nine priorities) discussed above as part of the law enforcement agenda.

From this perspective, the death penalty is considered a justified response to a serious crime, and thus as a matter of enforcement of criminal law rather than a human rights issue. This is in line with widespread popular support for the death penalty.

It is also worth remembering that this nine-point priority document was a campaign promise and therefore does not automatically translate to actual policy.

The absence of the death penalty in human rights policy is also evident when considering the National Action Plan on Human Rights (RANHAM), which sets out the strategies and key priorities in this area across all relevant government sectors for the 2015-2019 period.

While the RANHAM includes the right to life as one of the listed priorities, this has been interpreted within the categories of public health and the environment, particularly where they affect the disabled and other vulnerable groups.

Jokowi’s emphasis on social welfare is an example of this interpretation, and these issues certainly warrant immediate attention. However, from a human rights perspective this understanding is narrow, as it glosses over the civil and political issues associated with the right to life — not only the death penalty, but also extrajudicial killings which occur in conflict areas, and the prevalence of torture which may lead to a violation of the right to life.

The fact that the death penalty is not a part of current human rights policy,  reflects how capital punishment is overwhelmingly perceived in Indonesia both in society and among the political elite; that is, as a method to punish crime.

Considering the strong support for what has been labelled ‘penal populism’ it seems unlikely that a moratorium on the death penalty, let alone abolition, will be on the cards soon. In addition to these societal attitudes, a ‘coincidence of interests’ has also played a key factor: a state body that has always supported executions (BNN, the National Narcotics Agency), an attorney general looking to silence his critics, as well as a president in search for political gains.

But is it all doom and gloom?

While it looks like Jokowi will not change his mind on the death penalty, the resumption of executions has triggered renewed debates on the practice.

These have not only been spurred on by abolitionist NGOs and civil society groups, such as the Alliance of Human Rights Lecturers (SEPAHAM). Last year, the National Human Rights Commission Komnas HAM, spoke out against the death penalty whereas previously the organisation refrained from making such a statement. Members of the political elite are speaking out against the death penalty too, including former president BJ Habibie.

These developments show that while for the time being the politically dominant position is in support of the death penalty, this view is not necessarily shared by everyone and increasingly contested.

In the long run, this may contribute to a changes in human rights perceptions and policies where the right to life is comprehensively addressed and ultimately respected.

Dr Ken Setiawan is McKenzie Postdoctoral Fellow at the University of Melbourne’s Asia Institute.


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