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The pros and cons on capital punishment among legal experts still continue. The abovementioned statement was put forward in a plenary hearing for the judicial review of Law Number 22 Year 1997 on Narcotics (Narcotics Law) particularly regarding the provision on capital punishment, against the 1945 Constitution on Wednesday (20 /06), in the court room of the Constitutional Court which was scheduled for the hearing of statement of experts from universities in Indonesia.

Dr. Didik Endro Purwo Laksono, S.H., MHum. from Airlangga University, Surabaya, explained that the general function of the penal law is among others, to protect the interest of the state, the public, and individuals. Narcotic-related crimes violate the legal interests of those parties.

Didik added that as a consequence of the granting of the petition filed by the Petitioner, all laws and regulations on capital punishment should be abolished, including the provisions on capital punishment for the perpetrators of terrorism and other violations of human rights. “How the components of this nation will account for it if the capital punishment is abolished? Terrorism will surely be more threatening,” Didik explained.

Similar to Didik’s opinion, Dr. M. Arief Amrullah, S.H., MHum. from Jember University explained that every person is allowed to defend themselves when their right to live is threatened. According to Arief, the imposition of capital punishment by the state is a violation of human rights if it is implemented arbitrarily or without valid foundation according to the applicable laws.

Meanwhile, Dr. Mahmud Mulyadi, S.H., M.Hum. from North Sumatera University explained that in relation to Pancasila which includes religious values, the right to live is also recognized as the right of every person. “Only God has the right to determine the life and death of a person. However, the way to live and to die is determined by themselves. It means that narcotic-related criminals choose to die by capital punishment,” Mahmud described.

Prof. Dr. Koento Wibisono from Gadjah Mada University explained that from the philosophical point of view, sometimes the legal certainty fails to provide justice. However, if we choose justice, whose justice will we choose? Koento explained that if we choose the public justice, they will be happy. “Those who reject the application of capital punishment only represent a small part of the population who have obtained billions rupiah in profits. While the goals of the founders of this nation are improving the intellectual life and the prosperity of the people, narcotics on the other hand degrade those goals,” Koento affirmed.

Repeating the explanation of the Indonesian Criminal Code Revision Team that was summoned in the previous hearing, Prof. Dr. Mardjono Reksodiputro, S.H., M.A. from University of Indonesia who was also one of the members of the Indonesian Criminal Code Revision Team explained that in the Draft Law of Indonesian Criminal Code, capital punishment is stipulated in special article while the political policy for its imposition is that capital punishment is a special main punishment and is always to be applied with alternatives, namely imprisonment for life or imprisonment for 20 years.

However, according to Mardjono if a person convicted with capital punishment with a probation period of 10 years has shown good attitude and behavior, the capital punishment can be changed into imprisonment for life or maximum imprisonment for 20 years under a Decree of the Minister of Law and Human Rights.

Meanwhile, Prof. Dr. Bambang Poernomo, S.H. from Gadjah Mada University emphasized more on the existence of an intensive anti narcotic and illegal drugs community programs throughout Indonesia rather than only closing narcotic cases by imposing capital punishment.

Furthermore, Dr. Arif Gosita from the University of Indonesia elaborated that when the Dutch government abolished the capital punishment, the Netherlands East Indies government applied it for the sake of upholding order among native people. “Capital punishment is a human to human victimization. Capital punishment is abolished to establish 4K, namely truth (kebenaran), justice (keadilan), harmony (kerukunan), and prosperity (kesejahteraan) among the people. If this 4K is not fulfilled, the law should be revised,” Gosita said.

Prof. Dr. Ronald Z. Titahelu from Pattimura University stated that there is no crime without criminal sanction however, sanction in the form of capital punishment is not necessary because if it is related to the right for freedom and creation of public prosperity as provided in the Preamble of the 1945 Constitution, capital punishment clearly violates the above concept. “Every person has the free right to live including not to be killed based on the provisions of laws and legal system,” Titahelu described.

Similar to the opinion conveyed by Titahelu, Prof. Dr. Arief Sidharta from Parahyangan University explained that penal law should be functioning as re-socialization effort to restore the obedience of a convict in the society. Sidharta added that capital punishment has also not proven to have deterrent effects compared to the application of life sentence without remission. “Other risks of implementing capital punishment among others is, if in the future, it is proven that there is a mistake in passing a verdict and the execution has been done, the government can only apologize without being able to bring the convict back to life,” Sidharta explained.

After hearing the statements from the government, the National Narcotics Agency, the National Commission for Human Rights, experts presented by the Petitioner, the government, and the Constitutional Court in this judicial review, the former members of Ad-Hoc Committee I of the Working Committee of the People’s Consultative Assembly and the statements from the Indonesian Criminal Code Revision Team, the Constitutional Court will hold the next hearing scheduled for hearing the conclusion of the parties prior to passing a decision on the petition. “We will give two more weeks for the Petitioner and the government, including the related parties, to convey their conclusions. After that, the hearing for the conclusion pronouncement will be scheduled,” said the Chief Justice of the Constitutional Court, Prof. Dr. Jimly Asshiddiqie, S.H. before adjourning the hearing. (Wiwik Budi Wasito)

 

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