DEATH PENALTY IN THE NARCOTICS LAW IS NOT CONTRADICTORY TO THE 1945 CONSTITUTION
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The provisions of Article 80 paragraph (1) sub-paragraph (a), paragraph (2) sub-paragraph (a), paragraph (3) sub-paragraph (a); Article 81 paragraph (3) sub-paragraph (a); Article 82 paragraph (1) sub-paragraph (a), paragraph (2) sub-paragraph (a), and paragraph (3) sub-paragraph (a) of the Narcotics Law, insofar as they are related to death penalty, are not contradictory to Article 28A and Article 28I paragraph (1) of the 1945 Constitution.

The Constitutional Court issued such verdict in a session held for the pronouncement of the Court’s decision on the petition for judicial review on Law No. 22 of 1997 on Narcotics (the Narcotics Law) filed by petitioners in case No. 2/PUU-V/2007 (Edith Yunita Sianturi, Rani Andriani, Myuran Sukumaran, Andrew Chan) and petitioner in case No. 3/PUU-V/2007 (Scott Anthony Rush), on Tuesday (30/10) in the Constitutional Court’s courtroom. The petitioners, mostly foreigners who have been sent to death row, believed that their constitutional rights have been violated by the death penalty provisions in the Narcotics Law.

In the conclusion part, especially with regard to the legal standing of the foreign petitioners, the Constitutional Court is of the opinion that those foreign petitioners do not have the required legal standing, so that the petition filed by Myuran Sukumaran, Andrew Chan dan Scott Anthony Rush is refused (niet ontvankelijk verklaard).

In response to the main argument given by the petitioners that death penalty violates the right to life, which according to the provisions of Article 28I paragraph (1) of the 1945 Constitution is one of the non-derogable rights, the Constitutional Court refers to the original intent of the makers of the 1945 Constitution saying that human rights can be subject to limitations. This is supported by the placement of Article 28J as the concluding article for the articles providing for human rights in Chapter XA of the 1945 Constitution. Therefore, based on systematic interpretation (sistematische interpretatie), human rights provided for in Article 28A through Article 28I of the 1945 Constitution are subject to the limitations of human rights set forth in Article 28J of the 1945 Constitution.

The limitation of the right to life, either in the form of provisions allowing the imposition of death penalty with certain limitations or provisions on judicial killing, can also be found in a number of international legal instruments on or related to human rights, including International Covenant on Civil and Political Rights (ICCPR), Protocol Additional I to the 1949 Conventions and Relating to the Protection of Victims of International Armed Conflict, Protocol Additional II to the 1949 Conventions and Relating to the Protection of Victims of Non-International Armed Conflict, Rome Statute of International Criminal Court, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), American Convention on Human Rights, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty.

For example, the ICCPR, which was used by the petitioners for supporting their arguments, does not forbid the state parties to enforce death penalty, but it rather limits its imposition only for the most serious crimes in accordance with the law in force at the time of the commission of the crime (Article 6 paragraph (2) of the ICCPR). This means that a state party may impose death penalty (even though subject to limitations), and this is also an evidence that the right to life is not absolute in nature.

In relation to that matter, the Constitutional Court declares that crimes provided for in Article 80 paragraph (1) sub-paragraph (a), paragraph (2) sub-paragraph (a), paragraph (3) sub-paragraph (a); Article 81 paragraph (3) sub-paragraph (a); Article 82 paragraph (1) sub-paragraph (a), paragraph (2) sub-paragraph (a), and paragraph (3) sub-paragraph (a) of the Narcotics Law are categorized as the most serious crimes according to the Narcotics Law or the provisions of international law law in force at the time of the commission of the crimes. Therefore, the qualification of the crimes provided for in the aforementioned articles of the Narcotics Law can be regarded as equal to “the most serious crime” according to Article 6 of the ICCPR.

The Constitutional Court also gave several important notes, as set forth in the consideration part of the decision. One of the notes is that in the future, in the context of the reform of the national criminal law and harmonization of laws related to death penalty, the formulation, application and implementation of death penalty in Indonesian judicial system should carefully consider that death penalty is no longer a principal penalty, but rather a special and alternative penalty; death penalty may be imposed with a probation period of ten years which may be changed with a life imprisonment or 20 years of jail time if the convicts indicate good behaviors; death penalty cannot be imposed on underage children; the execution of death penalty on pregnant women and mentally-ill persons must be postponed until the pregnant women deliver their babies and the mentally-ill convicts recover their sanity. In addition, for fair legal certainty, the Constitutional Court also gave a recommendation that all decisions on death penalty having obtained permanent legal force (in kracht van gewijsde) should be carried out immediately.

Four Constitutional Justices conveyed dissenting opinions regarding this decision. The dissenting opinion conveyed by Constitutional Justice H. Harjono specifically highlighted the legal standing of the foreign petitioners. Constitutional Justice H. Achmad Roestandi conveyed a dissenting opinion as to the Main Issue of the Petition. Whereas dissenting opinions conveyed by Constitutional Justice H.M. Laica Marzuki and Constitutional Justice Maruarar Siahaan were related to the legal standing and the Main Issue of the Petition. (Luthfi Widagdo Eddyono)


Tuesday, October 30, 2007 | 16:48 WIB 248
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