Narcotics-related crimes are not categorized as in serious crimes category which must be sanctioned with death penalty because they only indirectly cause death to men.

Such was the statement given through a video conference by Professor Philip Alston from New York University School of Law, United States, who was presented as an Expert by the Petitioner in the case of judicial review of Law Number 22, 1997 concerning Narcotics (Narcotics Law) against the 1945 Constitution in the hearing on Wednesday, April 18, 2007 at 10:00 A.M. Western Indonesia Time at the Constitutional Court’s courtroom, scheduled for hearing the expert testimonies from the experts of the Petitioner, the Government and the National Narcotics Agency (BNN).

Alston also said that death penalty is still applied in many Asian countries. Latin American countries have started to abolish the penalty while European countries have permanently abolished it. “However, whether or not death penalty is necessary is ultimately left to the legal policy of the relevant countries with due observance of existing international legal provisions,” he explained.

Another testimony from the Petitioner’s Expert, Prof. Dr. J. E. Sahetapy, S.H., M.A. stated that in the Netherlands itself, death penalty has been abolished since 1870. For that reason, it is strange that the Wetboek van Strafrecht or WvS (Indonesian Criminal Code) is still maintained. “If death penalty is to be maintained, let’s just change the name of Lembaga Pemasyarakatan (Correctional Institution) which actually functions to allow inmates to be accepted in society,” explained Sahetapy.

Meanwhile, another Expert presented by the Petitioner, the Executive Director of Imparsial, Rachland Nashidik stated that there are actually many kinds of the so-called non derogable rights. The International Covenant on Civil and Political Rights (ICCPR) recognizes seven kinds of non derogable rights. There are only four rights provided in the European Convention on Human Rights which have been incorporated in the ICCPR. Meanwhile, in the United States, there are eleven kinds of rights recognized as non derogable rights.

Rachland continued to explain that there are actually core rights from such non derogable rights namely, among others, first, the right to life, the right to freedom from torture and any treatment which degrades human dignity; Second, the freedom from ill treatment; third, the right to freedom from slavery or servitude; fourth, the right not to be prosecuted under ex post facto laws or laws with retroactive application.

On the other hand, the Expert from BNN, KRH Henry Yosodiningrat, S.H. presented data indicating 40 deaths per day due to narcotics. In a day, the nominal value of narcotic transactions amounts to Rp. 800 Billion as 4 million addicts transact in the average value of at least Rp. 200,000.00 per day so that the total value of transactions can reach Rp. 292 trillion per year.

Henry added that almost all Correctional Institutions have 70 percents inmates from narcotics-related crimes, either perpetrators or users. “Now I dare say that no single district is free from narcotics. Is there any Narcotics-free Neighborhood Unit (RT) in Jakarta? Is there any Senior High School which is free from narcotics? I dare answer, no there is not!” expressed Henry.

For such reason, according to Henry, the application of Article 28I of the 1945 Constitution on non derogable rights can not be viewed separately but be subject to the limitation provided for by Article 28J the 1945 Constitution.

Whereas the Expert from BNN, Prof. Dr. Ahmad Ali, S.H. stated that with respect to serious violation of human rights, there is a transitional justice containing restorative justice allowing reconciliation while in respect of narcotics-related crimes no country enters into reconciliation with narcotics dealers.

In response to the above statement, Rachland Nashidik stated that the provisions on non derogable rights are different in each country. “In the next amendment to the constitution we may just recommend that the right to freedom from narcotics be incorporated so that the state will have the obligation to protect the rights of citizens to be free from such crimes,” he explained.

In order to reach an accurate decision, this pros and cons on death penalty is to be continued in the next hearing with the same agenda of hearing the testimony from other Experts presented by the parties. “Don’t Let this forum become a mere win-lose forum, not by product, but the process itself will be important for us to lead to an accurate decision, besides that this process itself serves educational, legal education and Human Rights Education functions for us all,” explained Chief Justice of the Constitutional Court, Prof. Dr. Jimly Asshiddiqie, S.H. before closing the hearing. (Wiwik Budi Wasito)