In Indonesia, the fate of death row convicts lies largely in the hands of the country’s president, who can decide to spare their lives after examining their clemency requests.
Indonesian President Joko Widodo, popularly known as Jokowi, seemed to have made up his mind to kill more than 60 drug convicts as he pledged to reject their clemency requests even before they arrived. He argued it would be a “shock therapy” to solve a national drug “emergency”.
Last month, six drug convicts were shot dead as part of Jokowi’s anti-drug “therapy”. Another 11, including Bali Nine duo Andrew Chan and Myuran Sukumaran, face imminent executions.
Jokowi’s blanket rejection is a blatant violation of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a state party. It states that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence”.
As president of a country with an imperfect and corrupted judicial system, Jokowi should know that the human cost of the death penalty is too high to be used as a solution for crimes. Taking someone’s life is irreversible.
Brutal murderers and drug kingpins should receive the heavy penalty. However, such punishment should be carried out humanely to reflect the degree of our human civilisation. Examples of unfair trials irrefutably show that in deciding the fate of a death row convict, Jokowi should firmly uphold human rights principles.
Pervasive unfair trials
In Indonesia, police torture and unfair trials are pervasive. This happens in cases that are punishable by the death penalty.
In 2004, a Nigerian – Tony (not his real name) – was convicted for drug dealing. When the police came to Tony’s home, he was not there. The police told Tony that they wanted to search his place.
Tony came voluntarily. Were Tony really involved in drug dealing, he could have escaped. Instead, he chose to come back to his place.
Tony said the police tortured him to confess that the drugs found in his place were his. He never had adequate legal representation throughout his legal proceedings, during which he had to contend with a poor interpreter and dubious evidence.
The court’s conclusion that Tony committed drug dealing was racially biased:
… black people from Nigeria are often monitored by the police because they often deal drugs in Indonesia in a neat and secretive way.
The court sentenced Tony to death.
In 2005, two Indonesians, Ruben Pata Sambo and his son Markus, were sentenced to death for premeditated murders. The case against them was highly fabricated. They were both tortured by the police to confess to a crime they never committed.
In 2006, the real perpetrators provided written testimonies that Ruben and his son were never involved in the murders. The two men are still on death row.
In 2013, a European national was arrested for drug offences. During police investigations, he was assisted by at least three different lawyers, all of whom only had interest in his money. The lawyers extorted money from him.
From the investigations up to the court hearings, the defendant was not assisted with a proper legal defence. The court sentenced him to death without him having meaningful legal assistance.
These cases shows how the Indonesian legal apparatus ignores minimum procedural and evidential guarantees of fair trials. Supporters of the death penalty may argue that these are a minority of cases, which do not represent the overall picture of death penalty cases in Indonesia. But that these cases exist and human lives are at stake in the face of corruption and unfair trials means that a closer examination of all death penalty cases in Indonesia is a must.
Moratorium on death penalty
Even though Jokowi firmly believes in the death penalty as a crime deterrent – at least for now – he must revise his policy on blanket rejection of clemency appeals. He must seriously and meticulously review all death penalty cases.
The UN Safeguards guaranteeing the protection of the rights of those facing the death penalty state:
Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.
Jokowi must conform to this standard. If there is a single doubt that a death row convict was sentenced to death because of weak evidence, case fabrication, torture, judicial extortion/bribery, no adequate legal aid, or no proper translation, the sentence should be commuted.
While a review is undertaken, Indonesia must apply a halt to executions. Through this careful review, Jokowi’s eyes may be opened to the ugly side of Indonesia’s justice system: that our system is so broken and dysfunctional that human life should never be the price.
This piece was co-authored by Ricky Gunawan, Director of the Community Legal Aid Institute (LBH Masyarakat). He holds an MA in Theory and Practice of Human Rights from the University of Essex with a scholarship from the Open Society Foundations.