Constitutional Court Highlights Confusion Over Executive Authority in Death Penalty Changes
The Constitutional Court (MK) has criticised the construction of death penalty provisions in the revised Criminal Procedure Code (KUHAP). Constitutional judges identified potential overlapping of authority between the judiciary and executive branches concerning the mechanism for converting death sentences to life imprisonment after a probationary period.
Executive Dominance in Judicial Matters
Chief Justice Suhartoyo criticised the government’s proposal placing the President as the authority to change death penalty status based on considerations from the Chief Justice of the Supreme Court (MA). According to him, this risks conflating legal and political domains.
“From this perspective, who actually has the authority to convert a death sentence to life imprisonment? Because this is still a single continuum of a court ruling relating to the probationary period,” said Suhartoyo during proceedings at the Constitutional Court building on Monday, 9 March.
Suhartoyo emphasised that the ten-year probationary period is an inseparable component of the court’s ruling. Therefore, constitutionally, control over conversion of the sentence should remain with the judiciary.
“The judicial sphere should be primary, because this remains within the context of a single ruling on a death sentence with a ten-year probationary period,” he stated.
Furthermore, he cautioned that this arrangement should not suggest that executive power overrides established legal process.
“There is space for presidential authority, but it should not appear inverted, as though the executive sphere is more dominant than the judicial process,” Suhartoyo emphasised.
Legal Theory Foundations Questioned
Echoing Suhartoyo’s concerns, Constitutional Judge Saldi Isra questioned the philosophical and theoretical foundations employed by the government in formulating the concept of conditional death penalty. He contended that the government must present a deeper conceptual approach beyond merely sociological reasoning.
“This is called a middle-ground concept in criminal law formulation. But conceptually, what legal theory is used to justify this approach?” asked Saldi.
Saldi stressed that formulating criminal norms cannot be based solely on adapting to societal conditions, but must be grounded in established legal theory.
“Beyond the view that criminal law must adapt to societal conditions, what legal theory is conceptually used in formulating these criminal norms? That requires explanation,” he concluded.
Clarity in this construction is deemed critical to ensure legal certainty and prevent overlapping authority in Indonesia’s sentencing system going forward.