The movement towards the abolition of the death penalty is at a critical moment. While a relative majority of States took abolitionist positions (de jure or de facto), 58 States still consider the death penalty, with an intensification of the use of the death penalty in some of those countries, the number of executions having risen by about 70% in 2015. Most of those countries are located in Africa, Asia, the Caribbean and the Middle East, with a tendency for some of them to reinsert the death penalty when they had introduced a de facto moratorium (Pakistan, Jordan…) or to expand the scope of crimes subject to the death penalty (Uganda, Nigeria…).

Parliamentarians have a crucial role to play in the promotion and the advancement of abolition. Indeed, parliamentarians who have the prerogative of drafting legislation and deliberating on national policies, have a central role in the movement to restrict the use of the death penalty, and ultimately to abolish it. In addition, the involvement of parliamentarians in public debates can encourage, in the long run, a change in the public opinion regarding the ineffectiveness of, and the alternatives to, the death penalty.

Despite numerous initiatives undertaken by parliamentarians worldwide, and with the support of dedicated international and national human rights organizations, for many years there had been no international grouping or network of parliamentarians devoted to abolition of the death penalty. PGA has thus recently established a Campaign for the Abolition of the Death Penalty to support, enhance and maximize the impact of the individual initiatives of parliamentarians worldwide on the abolition of the death penalty, as well as to launch and coordinate targeted actions in selected countries, by raising the awareness of Parliamentarians, strengthening political will and providing technical assistance for parliamentary initiatives aiming to generate a national political appropriation, awareness and understanding of the implications of abolition-processes.

In the framework of this action, PGA organized a Field Visit to Indonesia on 24-25 February 2016, to hold Consultations on the abolition of the death penalty in Indonesia in order to generate political will on the issue and enable a peer-to-peer dialogue and sharing of experiences with Malaysian MPs. The PGA delegation held institutional meetings during those 2 days with parliamentarians and relevant stakeholders from the civil society, national institutions and the diplomatic community. The PGA delegation was invited by Hon. Aziz Syamsuddin, MP (Indonesia), Secretary of Golkar Party, Chair PGA Group in Indonesia, and consisted of Hon. Iskandar Shamsul, MP (Malaysia), PGA Member, Hon. Kasthuri Patto, MP (Malaysia), PGA Member, Dr. David Donat Cattin, Secretary-General of PGA and Ms. Maïa Trujillo, Campaign Manager of the PGA Parliamentary Platform for the abolition of the death penalty. The delegation met with parliamentarians and relevant stakeholders from the civil society, national institutions and the diplomatic community, who agreed on the importance of the respect of human rights and the Rule of Law and to engage in a debate on the abolition of the death penalty in Indonesia.

Background

The Republic of Indonesia is a retentionist country, the last executions took place in 2015.

Article 28(A) of the Constitution provides that “Every person shall have the right to live and to defend his/her life and existence”, but the Criminal code and other legislations provide for the death penalty for more than 30 offences.

In 2007, the Constitutional Court of Indonesia ruled that the death penalty was not against the Constitution, even if the right to life is protected[1] and stated that it was only to be used for the “most serious crimes”. However, the country provides for the death penalty for several crimes that are not violent, and not considered as being the “most serious crimes” according to the international standards[2], such as drug use/possession and/or trafficking. Half of the inmates in death row have been convicted for those crimes and more than half (53%) of the executions carried out in Indonesia between 2000 and 2015 were for drug-related offences[3].

In addition, in Indonesia there have been calls to extend the scope of application of the death penalty to non-violent crimes such as corruption. Indeed, since 2004, presidential candidates from the main political parties have declared their support to the imposition of capital punishment for corruption charges in order to create a purported deterrent effect.[4]The new criminal code under examination at the Parliament, in Commission III (Legal Affairs and Laws, Human Rights and Security), seems also to be expanding the number of crimes that carry the death penalty, although the death penalty appears as an alternative punishment to imprisonment and as last resort (see more below in part on Consultations).

The main arguments identified in Indonesia to maintain the death penalty are the war on drugs, the deterrent effect of the death penalty and public opinion. In addition, some obstacles have been identified regarding the abolition process such as political pressure, the lack of political will, the absence of solid partners and voices to speak up about abolition, the limited space left to civil society and the lack of unity among key institutions, such as ‘Bar’ associations and Judges’ associations.

Consultations

The Consultations held on 24-25 February 2015 aimed to address the arguments in favour of the death penalty while identifying the challenges and obstacles to its abolition and the strategies to overcome them, including through a step-by-step approach to abolition in Indonesia. It also sought to generate political will for the abolition of the death penalty with the view of identifying and/or boosting initiatives towards abolition or a de facto moratorium, while highlighting the role and contribution of Parliamentarians on these goals and enabling a peer-to-peer dialogue on this issue between Malaysian and Indonesian MPs, taking stock of the important outcomes of PGA’s action against the death penalty in Malaysia.

The PGA delegation met with its PGA Members Hon. Eva Sundari, MP, Hon. Nurayati Assegaf, MP and Hon. Aziz Syamsuddin, MP.

PGA also met with several Parliamentarians who set out the legal framework of the death penalty in Indonesia, in particular some members of Commission III (Legal Affairs and Laws, Human Rights and Security) who gave an overview of the current Criminal Code reform, explaining that the new draft code seeks to compile all the crimes punishable by death, which are currently to be found in 13 different laws. As a result the draft criminal codes contains 28 crimes carrying the death penalty, while the current code provides for only 15 crimes. A careful analysis is to be conducted to ensure that no new crimes have been added to the criminal code, as it appeared from some exchanges during the visit that the scope of death penalty offenses has been expanded, notably to further terrorism and drug-related charges. However, it stemmed from the discussions with Parliamentarians that the death penalty is considered as an alternative punishment measure under the new draft, as a last resort in order to purportedly « protect society ».  Executions would also be suspended for 10 years upon certain conditions, such as the reaction of the public, which should not be excessive against the convicted person(s), or the capacity of convicted person(s) to show regret and to be rehabilitated. The MPs who met with the PGA delegation explained that the discussions are still on-going on the draft code, and that the positions of the political parties on the death penalty will bear an important influence on the progress or not of the situation of the death penalty.

Most of them recognised that the death penalty has been rather used for retribution/revenge purposes and does not have a deterrent effect, in particular for crimes related to drugs or terrorism. The example of Malaysia was mentioned, were an increase of 32% in drug trafficking has been registered since the strict laws providing the death penalty for such offenses were adopted.

PGA reminded indeed that it is less about the severity of the punishment than the certainty and predictability in applying any proportionate penalty that renders a functioning criminal justice system a deterrent factor. It is thus critical to reinforce the judicial system under the current reform, which also includes the adoption of a new procedural criminal code, to ensure the strengthening of the safeguards limiting the use of the death penalty, including fair trials and a renewed trust in the judicial system.

As such, some parliamentarians expressed their will to see Indonesia moving away from the death penalty, recognising the importance of the right to life, and identified the criminal code reform as a good starting point to reduce its use. They encouraged broad support on the issue and the linkage of different institutions and partners to work in a collaborative manner on the abolition process. Some actors were particularly identified such as heads of political parties, lawyers/bar associations, the judiciary, religious authorities, civil society, narcotics authorities, penitentiary authorities, the media but also parliamentarians from the region to share experiences and best practices.

They reaffirmed their role as legislators to make the necessary reforms to strengthen the Rule of Law and as political leaders to advocate with their government while engaging with the public opinion on this important matter.

PGA met with other relevant actors such as civil society organisations, the National Commission of Human Rights (KomnasHAM), the Institute for Criminal Justice Reform, lawyers who have been in charge of death penalty cases, the Indonesian Center of Law and Policies and the diplomatic community in Indonesia.

They all encouraged parliamentary action on the abolition, and committed to continue their work of sensitization of the population and relevant actors, in particular the victims and their families, on this important issue. They highlighted the important context of the justice reform to start the abolition process but also to accompany it, in order to ensure reparations/compensation of the victims and to reinforce the judicial system so that justice is effectively delivered and impunity does not lead the population to request the use of the death penalty. They underlined the need to have access to more reliable and independent data on the situation related to drugs in order to promote alternative drug policies.

Strategy to move forward

To work within the PGA group on the abolition of the death penalty, using a step-by-step approach.

The following actions could be the Plan of Action of the PGA group:

• To reduce the number of crimes carrying the death penalty and to promote sentences of imprisonment as primary punishment and the death penalty as a last resort alternative punishment in the Draft bill of the new Penal Code only for the most serious crimes
• To support the introduction or strengthening of safeguards limiting the use of the death penalty in the context of the reform of the criminal code and criminal procedural code.
• To create a working group under the leadership of the PGA National Group during the next session of the PGA Group, in order to proactively engage with their fellow parliamentarians and other stakeholders to achieve national and multi-partisan consensus to remove the barriers towards abolition and ensure better standards for its use. The promotion of several studies could be considered, including toassess the effectiveness of the death penalty (and thus highlighting its non-deterrent effect), on the situation of drugs in Indonesia to gather reliable and independent data and a survey on public opinion. Engagement with the media and the media could be envisaged.
• To generate support and request the Government to instate an official moratorium on pending executions.

Conclusion

The mission to Indonesia was successful as most of the actors the PGA delegation met with gave their commitment to promote and support the abolition of the death penalty in Indonesia.

The consultations were held at a timely moment, in the context of the reform of the criminal justice system with the current examination in Parliament of the criminal code and soon of the criminal procedural code. All the stakeholders recognized that a change of attitude could allow Indonesia to start moving smoothly away from the death penalty through an important advocacy and educational work as well as comprehensive reforms of the judicial system to limit the scope of the crimes carrying the death penalty and to strengthen the safeguards limiting its use, including to ensure due process and effective delivering of and access to justice, as well as adequate assistance and support to the victims.

PGA will thus need to keep on working with all stakeholders to follow-up on those commitments and to build the ground for Indonesia to abolish promp