Death penalty in Indonesia: unsupported by the facts and the law

An opinion piece by Leong Tsu Quin, ICJ Associate International Legal Adviser.

From 4 to 5 June 2015, the ICJ held a workshop with Indonesian lawyers that we would much rather not have had at all: discussing how to handle death penalty cases in light of the country’s resumption of executions.

Until President Widodo Jokowi suddenly embraced the death penalty, its horrific practice seemed to be on its way out in Indonesia: between 1999 and 2014, only 27 executions took place in the country, and in 2012 Indonesia even dropped its formal opposition to a United Nations General Assembly resolution calling for a moratorium on the use of the death penalty (Indonesia had since 2007 been voting ‘no’; in 2012 it abstained).

All this has changed under President Jokowi, as he has allowed 14 persons to be executed by firing squad since he took power.

All those executed this year had been convicted of drug-related offenses.

Indeed, President Jokowi says that the death penalty is needed to address drug use, claiming in an Al Jazeera interview this year that 4.5 million Indonesians require rehabilitation, and 50 persons die each day from drugs.

Even if this shocking estimate of the scale of the drug problem were accurate, any argument that the death penalty is therefore lawful and justified would be categorically wrong, for reasons we explain later.

But it is becoming more and more urgently clear that President Jokowi’s numbers themselves are deeply flawed and simply unreliable.

A coalition of Indonesian academics and experts, writing in the world’s most prominent medical journal The Lancet earlier this month, had expressed “serious concerns about the validity of” the government’s estimates, and called on the government to “invest in the collection of better quality data on the scale and nature of drug use in Indonesia” through a transparent, peer-reviewed process.

The flimsiness of the numbers that President Jokowi has been using to justify a growing number of executions was really brought home to us by one of the participants in our workshop, Claudia Stoicescu, a PhD candidate at the University of Oxford.

She explained that the Jokowi administration’s claims were based on faulty research, reportedly a 2008 study by the National Narcotics Agency (BNN) and the University of Indonesia.

She told us that the study used poorly-defined classifications, inappropriate recruitment methods, and definitions of addiction that are inconsistent with accepted criteria for drug dependence.

The number of deaths per day, for instance, was determined by surveying 2,143 students, workers and general households who were asked questions such as: ‘how many friends use drugs’ and ‘how many died because of drugs’, rather than the more accurate method of extrapolating based on existing mortality data such as overdose or AIDS-related deaths.

The Lancet article also called on President Jokowi to establish a drug policy based on empirical evidence, rather than resorting to forced rehabilitation and punitive measures.

According to the group, existing studies assessing drug policies and reform proposals showed that a punitive law-enforcement approach is not effective in reducing the prevalence of drug use.

It is equally important, though, to underscore that not only do President Jokowi’s arguments for the death penalty lack any reliable evidence, they are simply irrelevant to and incompatible with Indonesia’s obligations under international law.

Governments, leading UN and other legal experts, and civil society organizations, from around the world, have concluded that the death penalty constitutes a denial of the right to life and is a form of cruel, inhuman or degrading punishment, and is therefore never justified.

Even those who disagree accept that the death penalty is prohibited for anything other than “the most serious crimes” (murder and the like), and then only after a trial meeting the highest international standards of fairness.

In this regard, in 2013 Indonesia was reviewed by the UN Human Rights Committee, which assesses states’ compliance with a key human rights treaty ratified by Indonesia, the International Covenant on Civil and Political Rights (ICCPR).

The Committee confirmed that Indonesia’s use of the death penalty for drug offences violated the treaty as such offences do not meet the “most serious” threshold.

The Committee called for a halt to all executions in Indonesia, but emphasized that at minimum the law should be changed to ensure that crimes involving narcotics were not amenable to the death penalty. It further urged Indonesia to consider commuting all death sentences imposed on persons convicted for drug crimes.

Participants in our workshop highlighted grave failings in trial processes in Indonesia, such as failing to provide translation to allow the accused to understand the proceedings, a fundamental requirement under the ICCPR.

Further examples of how executions in Indonesia violate human rights included authorities proceeding with execution despite their client having been diagnosed with mental illness; and, frightfully, that some individuals shot by firing squad experienced minutes of pain and suffering before finally passing away.

Indonesia is now one of the outliers in the global community for being one of the few countries in the world that continues to apply the death penalty to drug-related offences.

President Jokowi’s stance on drug traffickers is at odds with the facts, with the law, and with global trends – approximately 160 Member States of the United Nations that have either abolished the death penalty or introduced moratoriums.

Jokowi must immediately reverse this unlawful and ineffective approach by halting all scheduled executions and moving Indonesia back toward abolishing this dreadful practice.