INDONESIA: Supreme Court should encourage judges not to impose death penalty 

An Open Letter from the Asian Human Rights Commission to the Honourable Hatta Ali, Chief Justice of the Indonesian Supreme Court

The Honourable Hatta Ali
Chief Justice of the Indonesian Supreme Court
Jl. Medan Merdeka Utara No. 9-13
Jakarta Pusat 10010

Tel: +62 21 384 3348, 345 7661
Fax: +62 21 381 0357

Your Honour,

To commemorate this year’s World Day against the Death Penalty which falls today, the Asian Human Rights Commission (the AHRC) is writing to you to express its appreciation to the recent judgment of the Supreme Court on the case regarding Mr. Hengky Gunawan, application number 39 K/Pid.Sus/2011. We have received the information that, in such judgment, three of your judges have established that death penalty is a violation to the right to life which is guaranteed not only in the 1945 Constitution but also in various international human rights instruments. We therefore wish to congratulate the institution you lead as well as the Honourable judges, Mr. HM Imron Anwari, Mr. Achmad Yamanie and Mr. HM Hakim Nyak Pa for the judgment as we believe it meets the international human rights standards on the protection of the right to life.

We are pleased that your institution perfectly understands that, as a state party to the International Covenant on Civil and Political Rights, Indonesia and its officials at all governmental branches shall interpret the right to life in accordance with the standards established by the UN Human Rights Committee. In its General Comment No. 6 on the Right to Life, the Committee expresses that the abolition of death penalty is strongly desirable and should be seen as progress in the enjoyment of the right to life. We note and appreciate the fact that your institution and the judges in Mr. Gunawan’s case are aware that provisions under Article 6 paragraph (2) to (5) of the ICCPR should not be understood as basis to preserve and justify death penalty but, instead, to minimise the arbitrariness in the imposition of such punishment thus diminish the unintended negative consequences of it.

The judgment on Mr. Gunawan’s case does not only reflect your institution as well as the judges’ profound understanding and strong commitment on human rights but also shows your sensible consideration on the current legal system in Indonesia which lacks safeguards to minimise the arbitrariness of the imposition of death penalty on convicted persons. As you are aware, the current Indonesian law on clemency, Law No. 5 Year 2010, fails to provide individuals sentenced to death their right to meaningful clemency by only giving them one chance to request for clemency within a very limited period of time, that is, one year since the final verdict imposed upon them.  There are also too many offences under Indonesian law which do not amount to ‘the most serious crimes’ as established under international law standards, such as narcotics crimes and aggravated theft, that might be subject to death penalty.

On this occasion we would like to express our subscription to the view delivered by the judges in Mr. Hengky Gunawan’s case that death penalty is not in accordance with the aims of punishment which are supposed to be ‘educative, corrective and preventive’. We wish to emphasise that death penalty has failed to give deterrent effect as it has always been claimed and the irrevocable character of the punishment has made it impossible to meet the corrective and preventive aims.

Given the above, we call you to disseminate the judgment on Mr. Gunawan’s case amongst the judges of District, High and Supreme Courts and encourage them to no longer hand down death penalty to the accused in cases they examine. We believe that as an institution that is committed to the enhancement of human rights, the Supreme Court will also call their judges to take into account human rights principles in their judgment in such a manner so as to avoid compromising their impartiality. We will be pleased to see a circular letter concerning these matters issued by your institution.

We look forward to your swift and positive response in this matter.

Thank you.

Yours sincerely,

WONG Kai Shing
Executive Director
Asian Human Rights Commission

Document Type : Open Letter
Document ID : AHRC-OLT-016-2012
Countries : Indonesia,
Issues : Death penalty,