1st Winner ALSA National Law Essay Competition 2013

THE RELEVANCE OF DEATH PENALTY IN THE EFFORT TO ERADICATE CRIMINAL ACTS OF CORRUPTION FROM PHILOSOPHICAL, SOCIOLOGICAL AND JURIDICAL APPROACH By: Sigit Wibowo CHAPTER I INTRODUCTION Background Indonesia is one of the countries that still retain and recognize the legality of death penalty as a way to punish perpetrators of crime, although the pros and cons on death penalty has been long experienced in this country. Moreover, the existence of death penalty in Indonesia will likely to continue in the future because in the Criminal Code Draft, death penalty remains one of the criminal sanctions being retained in punishing perpetrators of crime. The arrangement of death penalty in the Criminal Code Draft is set out in article 86 up to article 89.

The implementation of death penalty in Indonesia has become one of the most discussion and a long-drawn polemic for civilized countries. This is based on the application of death penalty is not consistent with the state’s philosophy which adopts the principles in Pancasila, that always upholds the value of just and civilized humanity. However, in reality, the practice of death penalty for whatever reason and logic is still being implemented in Indonesia from several criminal cases that exist.1 According to the former Executive Director of Institute for Democracy and Human Rights Studies, Asmara Nababan stated “It is time that the essence of these constitutional changes is being debated. Is it well worth for us to execute someone with death penalty if the 1945 Constitution of the Republic of Indonesia 1

M. Zen Abdullah, Pelaksanaan Pidana Mati Di Indonesia Telaah Dalam Kontek

Hak Asasi Manusia, Jurnal Ilmiah Universitas Jambi. 2009. hal.61

as the highest law of the country states that the right to live cannot be reduced under any circumstances. 2 The emerging controversy on death penalty is also being debated due to the second amendment or article 28A and article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia which explicitly stipulates that every person shall have the right to live and to defend their life and existence, thus all legal products that still include death penalty as criminal penalty must be modified or improved.

In criminal law it is recognized there are various criminal sanctions. One of the most severe sanctions is death penalty. Death penalty is given in order to punish perpetrators of crime who are considered unable to return to society for the crime being committed qualifies as a very serious crime. In addition to being the most severe punishment, it is also a punishment that is generally very frightening, especially for prisoners who is awaiting execution. Death penalty in the history of criminal law has long been debated. There are two views on death penalty that have arisen. The First view, approving and agreeing with the existence of death penalty because approving that the criminal sanction is proportionate with the crime that has been done by the perpetrator and could generate deterrent effect for the society, hence death penalty is still relevant to be implemented. There are several provisions in special criminal law which implements death penalty, amongst them: In Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption, particularly in article 2 paragraph (2) which stipulates: “In the event that the criminal act of corruption as referred to in paragraph (1) is committed under certain circumstances, the person concerned can be sentenced to life imprisonment”.

The elucidation of article 2 paragraph (2) explains that “certain circumstances” in this provision is meant as eradication towards perpetrators of that criminal act 2

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conducted when the country is under a state of emergency in according with the applicable law, during a time of national disaster, as a repetition of the criminal act of corruption, or during at the time the country is under economic and monetary crisis.

As for the common reasons given by the ones which approve death penalty, such as Kant, Hegel, Herbart, Stahl, Garafalo,Lambroso, H.G. Rambonnet, and H.B Vos are3 : a. Dangerous people must be eliminated in order not to disrupt and hinder the progress of the society. b. As a manifestation of reprisal. c. If a big criminal who enters prison is not being killed then when they are released from prison they will repeat the criminal act again. d. Those who will not be released will create difficulties and chaos in prison. e. Giving deterrent effect and intimidate the others in doing such criminal acts.

The Second view, disapproving the existence of death penalty because considers that criminal sanctions is very inhumane and is in contrary to the principle of just and civilized humanity. In Netherlands, a committee is formed as an act to oppose death penalty headed by P.J. Meertens who have proposed seven reasons as the basis of refusal towards death penalty, which are 4: a. If a judge in giving verdicts is wrong and death penalty has been executed then it cannot be rectified anymore. b. A crime where it is no longer possible for an explanation from the convict cannot be accepted. c. Impose further on death penalty which signifies backwardness in civilization. d. Death penalty in general causes the heir more suffering in compared to the convicts themselves.

3 4

Ibid Ibid

e. It is feared that after several nationalist-socialist people being imposed with death penalty many people will be happy towards the course of national-socialist spirit.

2. Formulation of the Problem Based on the background outlined above, the issues to be examined and assessed in this law review is Is it still relevant for the implementation of death penalty in eradicating the criminal act of corruption from philosophical, sociological and juridical approach?

CHAPTER II DISCUSSION Theoretical Approach of Death Penalty in Eradication of the Criminal Act of Corruption To see whether article 2 paragraph (2) Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no.

31 of 1999 on Eradication of the Criminal Act of Corruption is still proper to be implemented in Indonesia and is contradicting or not with Pancasila and 1945 Constitution of the Republic of Indonesia principally article 28A and article 28I then it can be studied through three approaches, namely Philosophical, Sociological, and Juridical approach.

1. Philosophical Approach Philosophically speaking, the imposition of death penalty to perpetrators of crime has been debated throughout the life history. This debate relates to what is to be achieved by criminal law through the implementation of criminal punishment.

The issue that arises is whether death penalty is in contrary with the concept of corrections because death penalty is based on the purpose of reprisal (retributive).

The idea of the abolishment of death penalty is developed from the understanding of abolitionist who considers death penalty is a form of punishment that is cruel and inhumane and is derived from the retributive theory that legitimates reprisal towards perpetrators of crime. Movements carried by abolitionist are intended not only to abolish death penalty, but rather aims to eliminate all forms of punishment. This movement was born from the idea of positive school by initiating treatment method.

Treatment method as a purpose of criminalization is raised by the positive school who believes that criminalization is to be very directed towards the perpetrator of the crime, not the criminal act itself. However, criminalization that is meant by the positive school is by giving treatment and rehabilitation towards perpetrator of crime as a substitute to punishment. The argument of the positive school is based on the reason that the perpetrators of crime are sick people thus they need treatment and rehabilitation. 5 Treatment method as a goal of criminalization on its way is not as smooth as expected because this understanding also receives a lot of criticism 6, such as: a) The first criticism is addressed at the fact that only several countries have the facility to implement rehabilitation program at the level and policies that emphasize the use of measures of treatment in the name of detention. b) Second criticism, there are serious allegations that the approach used by the understanding of rehabilitation is the approach that invites individual tyranny and the rejection of human rights. For instance in terms of the rehabilitation process, nobody can predict how long the treatment will last when the prisoners are given under the care of a doctor to be cured or treated before they will be decided to be released. It is also difficult to control the autonomous decision of the doctor in charge. According to Gerber Mc. Anany, most of the treatment method that are

5

C. Ray Jeffery (1977). Crime Prevention Through Environmental Design. Beverly Hills London: SAGE Publication, Inc. Hal. 18.

6 Rudolp J. Gerber and Patrick D. McAnany. Philosopy of Punishment, dalam The Sociology of Punishment & Correction. Leonard Savitz dan Marvin E. Wolfgang (Ed). New York : John Wiley & Sons, Inc, hal. 354

done with full benevolence and for the sake of humanity, eventually becomes out of control. c) Lastly, the rehabilitation program is faced with criticism that out of all of the scientific knowledge in this world, in fact, cannot rehabilitate someone with antisocial behavior.

Moreover, Herbert L. Packer suggested the importance of the understanding of retributive criminalization; Packer tends to more assessing back the classic theorywith the purpose of deterrence because it is more useful as a starting point to examine in crime and punishment given in a more rational and integral way.

Even if death penalty is considered to be sourced and philosophically as a form of reprisal, which is the retributive theory, then it must be kept in mind that the significance of reprisal in retributive theory is not to signify as a form of revenge.

This criminalization in according to the retributive theory is morally justified because the perpetrator of the crime deserves to receive it for the crime they have done. The important assumption towards the justification to punish as a respond towards a crime because the perpetrator of the crime has violated certain moral norms that underlie the legal rules which has been done intentionally and consciously and this is a form of moral responsibility and legal fault of the perpetrator. Thus death penalty is not based on the philosophy of revenge, but rather based on the proportionality between the action of the perpetrator with the punishment that is equitable.

2. Sociological approach Sociological approach brings us to the fact that nowadays the criminal act of corruption has taken into possession of all of the aspects of life of Indonesia’s society. The criminal act of corruption causes problems in the scope of national, regional, and international. Until now not even one country in this world has succeeded in eradicating corruption from the roots up.

In the past two years, the perception index of corruption in Indonesia in the version of Transparency International (TI) stands at 2.8 with ranking 110 out of 178 countries in the year of 2009 and 2.8 with ranking 110 out of 180 of the most

corrupt countries in 2010. While according to the version of Political and Economic Risk Consultancy Ltd (PERC), Indonesia holds the perception index of 8.32 in 2009 and 9.10 in 2010, also being placed as the most corrupt country in Asia below Vietnam and Philippines.

Corruption in Indonesia now has gotten to the point that cannot be tolerated. It has become a systematic issue and cultured. The state losses for the proliferation of the practices of corruption are uncountable. If in 1993 Soemitro Dojohadikusumo said that the leakage of development funds between 1989-1993 is approximately 30% and the result of the World Bank research that the leakage of development funds reached 45%, it now appears that the number has increased drastically. This led to the emergence of the term that corruption has become extraordinary crime. 7 Noting to the facts above, the crime of corruption is a crime that causes suffering due to injustice and poverty from the result of the criminal act of corruption.

Therefore, criminal law must be able to be one of the tools to minimize the criminal act of corruption, amongst them are by implementing death penalty for the perpetrators of corruption.

Furthermore, death penalty is much needed especially in Indonesia to give the deterrent effect, but also must be implemented specifically and selectively.

Specifically defines that death penalty must be implemented for serious crimes including corruption, narcotics, terrorism, serious violation of human rights, and premeditated murder. What is meant by selective is that the perpetrator of crime being imposed with death penalty must be truly convincingly proven in court (beyond reasonable doubt) that they were truly the perpetrator.

3. Juridical Approach A very crucial question arises, which is whether death penalty is contradicting with the 1945 Constitution of the Republic of Indonesia? This question commonly arises by the applicant of Judicial Review for their crime being sentenced with

7

Naskah Akademik Rancangan Undang-Undang Pengadilan Korupsi, Tim Gabungan Pemberantasan Tindak Pidana Korupsi Lembaga Kajian dan Advokasi untuk Independen Peradilan (LeiP), Masyarakat Transparansi Indonesia (MTI) Pusat Studi Hukum dan Kebijakan Indonesia (PSHK) , Jakarta Juli 2001.

death penalty. In article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia which contains: (1) The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.

Whereas the limitation as set forth in article 28J does not apply to article 28I which is “cannot be limited under any circumstances”. That the threat of death penalty in article 2 paragraph (2) Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption is the form of limitation or the deprivation of the rights to life as contained in article 28I must be declared unconstitutional.

The interpretation towards article 28I and article 28J of the 1945 Constitution of the Republic of Indonesia cannot be applied partially but must be holistic. Article 28J is a limitation of the provisions of article 28I. Article 28J reads: (1) Every person shall have the duty to respect the human rights of others in the orderly life of the community, nation and state.

(2) In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.

The perpetrator of the criminal act of corruption that have directly or indirectly done a violation of human rights, especially “the rights to live” as stipulated under article 28I paragraph (1). This is because the crime they have done the criminal act of corruption as meant in paragraph (1) is committed under certain circumstances, the person concerned can be sentenced to life imprisonment.

The elucidation or article 2 paragraph (2) states that what is meant by this provision is meant as eradication towards perpetrators of that criminal act conducted when the country is under a state of emergency in according with the applicable law, during a time of national disaster, as a repetition of the criminal act of corruption, or during at the time the country is under economic and monetary crisis. This crime has an extraordinary impact and affects every single layer of the society. The crime of corruption is a killing machine that is indiscriminative, both children to adults who become victims of national disasters or when their welfare is being neglected because of economical and monetary crisis caused by corruption.

Thus, the perpetrators of the criminal act of corruption being imposed with death penalty have neglected their obligation to respect the human rights of others in having orderly Life of the Nation and State(Article 28B paragraph (1) of 1945 Constitution of the Republic of Indonesia). Besides that, the perpetrator of the criminal act of corruption will not receive justification from the consideration of moral, religious values, security, and public order (article 28J paragraph (2) of 1945 Constitution of the Republic of Indonesia).

Based on the points above, the presence of several law that still formulates the saction of death penalty for the offenders, including Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption is intended to place equally, fairly and correctly between the human rights and the fundamental obligation of each person. Because of the limitation of the sanction of death penalty as stipulated under Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption is the most proper and appropriate formulation that has been constitutionally guaranteed through article 28J of the 1945 Constitution of the Republic of Indonesia.

Therefore, the provisions of death penalty in Law of the Republic of Indonesia no.

31 of 1999 on Eradication of the Criminal Act of Corruption in conjunction with Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption is not contravening with 1945 Constitution of the Republic of Indonesia.

CHAPTER III CLOSING Conclusion The will to abolish death penalty essentially further highlight the factor of the person (perpetrator) rather than the protection of the people who have become victims of the criminal act of corruption. And it seemed as though article 28A and article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia is absolute, while actually that provision is given limited enforceability based on the provision of article 28J of the 1945 Constitution of the Republic of Indonesia.

Therefore, in order to protect the much larger importance of the nation and the whole citizens of Indonesia, thus the provisions on death penalty should be retained and implemented accordingly in the national criminal justice system and it is also in accordance with our constitution.

LIST OF REFERENCES Laws and Legislations 1945 Constitution of the Republic of Indonesia Law of the Republic of Indonesia no. 31 of 1999 on Eradication of the Criminal Act of Corruption Law of the Republic of Indonesia no. 20 of 2001 on the Amendment to Law number no. 31 of 1999 on Eradication of the Criminal Act of Corruption BOOKS

C. Ray Jeffery (1977). Crime Prevention Through Environmental Design. Beverly Hills London: SAGE Publication, Inc Rudolp J. Gerber and Patrick D. McAnany. Philosopy of Punishment, dalam The Sociology of Punishment & Correction. Leonard Savitz dan Marvin E. Wolfgang (Ed). New York : John Wiley & Sons, Inc JOURNALS M. Zen Abdullah, Pelaksanaan Pidana Mati Di Indonesia Telaah Dalam Kontek Hak Asasi Manusia, Jurnal Ilmiah Universitas Jambi. 2009.

OTHER LITERATURES Naskah

Akademik Rancangan Undang-Undang Pengadilan Korupsi, Tim

Gabungan Pemberantasan Tindak Pidana Korupsi Lembaga Kajian dan Advokasi untuk Independen Peradilan (LeiP), Masyarakat Transparansi Indonesia (MTI) Pusat Studi Hukum dan Kebijakan Indonesia (PSHK) , Jakarta Juli 2001.

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: SIGIT WIBOWO

FACULTY OF LAW – GADJAH MADA UNIVERSITY, YOGYAKARTA * This essay is written for the 1st ALSA LC UNSRI Local & National Law Essay Competition. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the content of this report, in whole or in part, save as hereinafter provided. You may download or copy one copy of the report you have purchased only for your own personal use for academic study purposes only, however, you may not submit this document under your own name for academic assessment.