Death Penalty Provision Challenged at Constitutional Court; Government Claims New Criminal Code Adopts "Middle Ground"
Provisions regarding capital punishment in the Criminal Code (KUHP) have been challenged again before the Constitutional Court (MK). The government stated that the new regulations were designed as a compromise to prevent immediate execution.
Deputy Minister of Law Edward Omar Sharif Hiariej presented this explanation whilst providing government testimony during the KUHP constitutional review hearing. He noted that the debate over capital punishment has consistently been divided between two major camps, each with compelling arguments.
“Those who follow abolitionist principles, who wish to abolish capital punishment, have strong argumentative foundations, and this is equally strong as those who hold retentionist views, namely those who continue to support capital punishment,” said Eddy during the Constitutional Court plenary session in Jakarta on Monday, 9 March.
According to Eddy, the new Criminal Code attempts to adopt a middle position by placing capital punishment as a special penalty not immediately executed. Under this new system, judges impose death sentences accompanied by a 10-year probationary period.
“This means every death sentence will be imposed together with a probationary period. This 10-year probation period can then, based on evaluation, result in commutation from capital punishment to life imprisonment,” explained Eddy.
During this period, the convict’s conduct will be evaluated by the state. If deemed to demonstrate improvement, the death sentence may be converted to life imprisonment.
Eddy described this approach as Indonesia’s distinctive response to the global debate on capital punishment that has yet to reach consensus.
“This is an Indonesian Way, a win-win solution between those who wish to retain capital punishment and those who wish to abolish it,” he said.
However, during the proceedings, Constitutional Court Judge Daniel Yusmic questioned the rationale for determining the 10-year probationary period. He argued that clarification was needed regarding the indicators used by the state to assess changes in the convict’s behaviour.
“What indicators or methods are used? It is possible that someone may change after five years. Why must it be 10 years; what is the measure?” asked Daniel during the hearing.
This constitutional review is part of several cases testing various provisions in the new Criminal Code at the Constitutional Court. In addition to capital punishment, other provisions being challenged include those concerning insults against the president and state institutions, use of state symbols, adultery regulations, and provisions on spreading false information that could incite civil unrest.