When Socrates, Plato and Aristotle deemed that to some extent the death penalty was appropriate, their thoughts apply to the present situation in Indonesia. Capital punishment in this country is reserved only for serious crimes, such as narcotics and terrorism. Countries practicing the death penalty in the world, including those in Southeast Asia and the Middle East, share similar arrangements. Interestingly, most executions have been carried out for narcotics cases in those countries.
The death sentence is considered the last resort after a selective and prolonged legal process.Apart from its complicated process, the death penalty also has limitations. Chief among them is the right of clemency where a death-row convict may be pardoned. Qualifications, for example, children and pregnant women are exempt, serve as additional restrictions as prescribed in the ratified 1966 International Covenant on Civil and Political Rights.
Nevertheless, many human rights activists firmly contend that the death penalty violates basic human rights in all aspects. In Indonesia, this claim was dismissed in 2007 when the Constitutional Court decided that human rights do have limitations and as a consequence, in some cases, the death penalty is acceptable. In practice, there is relatively little issue about the death penalty for Indonesian convicts, yet when it comes to foreigners, matters are more sensitive and complicated. With bilateral relations at stake, the death penalty raises a problem of its own, particularly on the issue of clemency and consular notification.
As history has shown, diplomatic and political considerations have played a considerable role in the process of granting clemency. On many occasions, the president has to make tough and last-minute decisions. Non-legal reasons such as reciprocity, aid and bilateral support have to compete with rule-of-law elements such as protection of Indonesians abroad, the gravity of the crime and the supremacy of the law. Consular notification is also prone to complexities if not properly exercised.
The United States had to learn this the hard way. In the 2004 Avena and Other Mexican Nationals case, Mexico argued before the International Court of Justice (ICJ) that the US failed to inform 51 Mexican nationals of their right to consular access including those sentenced to death row in the US. The ICJ ruled in favor of Mexico and upheld Article 36 of the 1963 Vienna Convention on Consular Relations. Currently, an official publication of the US Department of State that is intended as instructions for federal, state and local enforcement and other officials mandates the right to consular access, particularly for death penalty-related crimes.
Another issue regarding consular notification is re-notification, whether a foreign mission is required to be re-notified when their nationals are sentenced to death or when their clemency requests are denied and the time of execution nears. The US encourages its officials to carry out re-notification and Singapore mandates 14 days of re-notification in the case of execution. Japan and Malaysia, on the other hand, do not practice re-notification. The complexity of the death penalty also comes from international pressure. With the abolition of the death penalty gaining more support, Indonesia has come in for criticism for maintaining capital punishment
.In the diplomatic arena, much of this complexity occupies the work of the Foreign Ministry. As the assigned window to the international world, the ministry functions not only as messenger but also defender of its nationals as mandated by law. Efforts are continuously carried out to seek relevant legal and political justification both at home and abroad. At home, diplomatic notes and visits from foreign missions requesting, relaying, confirming and, in some instances, negotiating clemency have become the Foreign Ministry’s day-to-day business. The arguments put forward in response to these diplomatic notes and visits may seem classic and clichéd, but they are nonetheless valid. One of the most common arguments conveyed is the notion of an independent judicial system that is beyond the ministry’s reach. It argues that the legal process is distinct from the political process and the death penalty is a product of the legal process. Even in the context of clemency where international politics may come into play the final decision is in the hands of the president who holds the prerogative to grant mercy.
As if the arguments are not clear and repeated enough, diplomatic notes and visits remain adamant. The persistency of foreign missions in exercising their consular duty is second to none. Ideas such as good bilateral relations, respect for human rights and extradition are thrown in, hoping for a possible loophole, if not a miracle.
Ironically, if the situation was reversed, Indonesian missions abroad would simply do the same in exercising their consular function to assist Indonesian nationals. In some extreme conditions, the Indonesian government has had to go the extra mile to save its nationals from execution, such as those in the Middle East and Malaysia. In conclusion, as of now the death penalty remains the law of the land in Indonesia and as such diplomacy works in support of enforcing the law. Albert Einstein put it succinctly in his famous statement that nothing is more destructive of respect for the government and the law of the land than passing laws that cannot be enforced.
The writer Sunan J. Rustam, works for the Foreign Ministry at the political, legal and security affairs desk.