Diplomacy
and the death penalty in Indonesia
Sunan J Rustam ; The writer works for the Foreign Ministry
at the political, legal and security affairs desk
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JAKARTA
POST, 23 Januari 2015
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When Socrates, Plato and Aristotle deemed that to some
extent the death penalty was appropriate, their thoughts apply to the present
situation in Indonesia.
Capital punishment in this country is reserved only for
serious crimes, such as narcotics and terrorism. Countries practicing the
death penalty in the world, including those in Southeast Asia and the Middle
East, share similar arrangements.
Interestingly, most executions have been carried out for
narcotics cases in those countries. The death sentence is considered the last
resort after a selective and prolonged legal process.
Apart from its complicated process, the death penalty also
has limitations. Chief among them is the right of clemency where a death-row
convict may be pardoned.
Qualifications, for example, children and pregnant women
are exempt, serve as additional restrictions as prescribed in the ratified
1966 International Covenant on Civil and Political Rights.
Nevertheless, many human rights activists firmly contend
that the death penalty violates basic human rights in all aspects.
In Indonesia, this claim was dismissed in 2007 when the
Constitutional Court decided that human rights do have limitations and as a
consequence, in some cases, the death penalty is acceptable.
In practice, there is relatively little issue about the
death penalty for Indonesian convicts, yet when it comes to foreigners,
matters are more sensitive and complicated.
With bilateral relations at stake, the death penalty
raises a problem of its own, particularly on the issue of clemency and
consular notification.
As history has shown, diplomatic and political
considerations have played a considerable role in the process of granting
clemency.
On many occasions, the president has to make tough and
last-minute decisions. Non-legal reasons such as reciprocity, aid and
bilateral support have to compete with rule-of-law elements such as
protection of Indonesians abroad, the gravity of the crime and the supremacy
of the law.
Consular notification is also prone to complexities if not
properly exercised. The United States had to learn this the hard way.
In the 2004 Avena and Other Mexican Nationals case, Mexico
argued before the International Court of Justice (ICJ) that the US failed to
inform 51 Mexican nationals of their right to consular access including those
sentenced to death row in the US.
The ICJ ruled in favor of Mexico and upheld Article 36 of
the 1963 Vienna Convention on Consular Relations.
Currently, an official publication of the US Department of
State that is intended as instructions for federal, state and local
enforcement and other officials mandates the right to consular access,
particularly for death penalty-related crimes.
Another issue regarding consular notification is
re-notification, whether a foreign mission is required to be re-notified when
their nationals are sentenced to death or when their clemency requests are
denied and the time of execution nears.
The US encourages its officials to carry out
re-notification and Singapore mandates 14 days of re-notification in the case
of execution. Japan and Malaysia, on the other hand, do not practice
re-notification.
The complexity of the death penalty also comes from
international pressure. With the abolition of the death penalty gaining more
support, Indonesia has come in for criticism for maintaining capital
punishment.
In the diplomatic arena, much of this complexity occupies
the work of the Foreign Ministry. As the assigned window to the international
world, the ministry functions not only as messenger but also defender of its
nationals as mandated by law.
Efforts are continuously carried out to seek relevant
legal and political justification both at home and abroad.
At home, diplomatic notes and visits from foreign missions
requesting, relaying, confirming and, in some instances, negotiating clemency
have become the Foreign Ministry’s day-to-day business.
The arguments put forward in response to these diplomatic
notes and visits may seem classic and clichéd, but they are nonetheless
valid.
One of the most common arguments conveyed is the notion of
an independent judicial system that is beyond the ministry’s reach.
It argues that the legal process is distinct from the
political process and the death penalty is a product of the legal process.
Even in the context of clemency where international
politics may come into play the final decision is in the hands of the
president who holds the prerogative to grant mercy.
As if the arguments are not clear and repeated enough,
diplomatic notes and visits remain adamant. The persistency of foreign
missions in exercising their consular duty is second to none.
Ideas such as good bilateral relations, respect for human
rights and extradition are thrown in, hoping for a possible loophole, if not
a miracle.
Ironically, if the situation was reversed, Indonesian
missions abroad would simply do the same in exercising their consular
function to assist Indonesian nationals.
In some extreme conditions, the Indonesian government has
had to go the extra mile to save its nationals from execution, such as those
in the Middle East and Malaysia.
In conclusion, as of now the death penalty remains the law
of the land in Indonesia and as such diplomacy works in support of enforcing
the law.
Albert
Einstein put it succinctly in his famous statement that nothing is more
destructive of respect for the government and the law of the land than
passing laws that cannot be enforced. ●
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