The legal system in Indonesia is based on Roman-Dutch law, modified by traditional elements and by new criminal procedure law.
The Penal Code provides for the death penalty in cases of murder, crimes involving illegal arms, corruption, drugs and terrorism, aggravated robbery, treason, espionage and military offences.
In the Aceh region of Indonesia, death by stoning is sanctioned regionally but banned nationally. Based on Article 2 Verse 1 of the Corruption Law, the death penalty is only for criminals convicted for misappropriating funds for natural disasters, riots and economic crises.
Law No. 12/1951 on firearms stipulates that a person or party lacking a permit who imports, exports, produces, accepts, obtains, furnishes, attempts to provide, possesses or carries a firearm, ammunition or explosive could face the death penalty or a maximum jail term of 20 years.
The 1997 Narcotics Law carries the death penalty for convicted drug dealers but the maximum sentence is rarely imposed. Indonesia, with a population of more than 200 million, has an estimated 1.5 million drug addicts, and they spend an average of Rp 100,000 per day on drugs.
Law No.20/2001 on corruption makes perpetrators of this crime liable to capital punishment if they are found guilty of corruption during an economic crisis. This law is not retroactive.
On March 6, 2003, Indonesia's House of Representatives converted into law two emergency anti-terrorism presidential decrees issued in October 2002, a week after bombing attacks on the resort island Bali that killed 202 people. The new legislation prescribes death by firing squad for a variety of terrorist offences. People found guilty of committing acts of terror, or threatening to do so, or damaging public or international property can be condemned to death or jail terms ranging from fours years to life. The same penalties are applicable to those using or threatening to use chemical, biological or radioactive materials to cause terror. People who stockpile or use firearms or explosives could face penalties ranging from three years in jail to death. The law allows police to detain suspects for three days on recommendations of intelligence reports. A judge can then review the case and order the suspect to be held for up to six months for further interrogation without issuing formal charges. Human rights activists expressed concern over the antiterrorism legislation, saying it could open the door to widespread abuse and remain in use long after the war on terror ends, given Indonesia's weak judiciary, rampant corruption and poor human rights record.
In 2000, the Indonesian government established an ad hoc human rights tribunal to judge those responsible for violence committed during the elections in East Timor, wanted by the UN in 1999 and during which the majority voted for independence from 'Indonesia which had occupied the territory since 1975. About a thousand people were killed by Indonesian soldiers and police. Indonesia has decided to set up this court to avoid the creation of an international tribunal for war crimes similar to those for the former Yugoslavia and Rwanda. Human rights groups have raised concerns about the ability of the judges of this internal court to process military leaders and have denounced the corruption of juries.
A ruling by the Constitutional Court in 2008, establishes that capital punishment should be used sparingly and those on death row should be given the chance to be rehabilitated. While six of the nine members of the court found the death penalty was legal under the constitution, it was instructive that three thought it was not. Moreover, the majority ruling advocated tight limits on when the death penalty can be used, saying it should be handed out only as a “special and alternative punishment.”
Indonesia’s strategic shift reflects the demands of an increasingly globalized society. Some 6.5 million Indonesian citizens are employed abroad as domestic workers and laborers. As of 10 February 2015, there were 229 Indonesians who were facing a death sentence abroad. Most of them are in Malaysia with 168 cases, Saudi Arabia with 38 and China with 15. The majority have been sentenced to death for drug charges (131 cases) and murder (77).
Court requests for clemency are automatic under Indonesian law if those convicted are sentenced to death and do not submit a request themselves. President Susilo Bambang Yudhoyono has commuted a total of 19 death sentences out of 126 pleas for clemency during his two terms.
In early December 2014, the new President Joko Widodo ruled out granting clemency to convicted drug traffickers sentenced to death, because Indonesia was in "a state of emergency on drugs" with people dying daily. However, in February 2015, President Widodo commuted to life imprisonment three death sentences for premeditated murder. On May 25, 2016, President Widodo approved a law prescribing the death penalty as the maximum sentence for child rapists, after several brutal gang rapes sparked public outrage. Widodo said those responsible for sexual abuse of children, as well as repeat sex offenders, could also face chemical castration and be tagged with an electronic chip to track their movements, citing the law he signed.
On 12 April 2017, Attorney General Muhammad Prasetyo indicated that Indonesia would continue to execute convicts when he confirmed that the government would not implement a moratorium on the death penalty despite mounting calls from human rights groups. He hinted that there would soon be a fourth round of executions.
The war on drug
“We never said we would implement a moratorium,” Prasetyo said. “We are considering many aspects," he added.
Prasetyo made the statement in response to a question raised by United Development Party (PPP) politician Arsul Sani, who asked him to give updates on the government’s execution plans during a meeting at the House of Representatives on April 12.
Arsul asked about the fate of more than 100 death row convicts in regard to ongoing discussions between the government and lawmakers on making the death penalty an alternative sentence as stipulated in the Criminal Code (KUHP) draft revision.
The bill, which is being deliberated at the House, softens the government’s stance on capital punishment as it stipulates that the punishment can be reduced to life imprisonment. Article 89 of the bill states “the death penalty should be the last option taken to protect the public.” It is elaborated further in Article 91, which says convicts may have their sentences reduced if they behave well during their imprisonment. The bill does not define the guidelines of death penalty assessments or stipulate institutions authorized to make such assessments.
“If the revised KUHP takes effect while we still have death row convicts, we will comply with this new law,” Prasetyo said.
In October 2017, President Joko Widodo, following a series of arrests of major traffickers, has expressed his favor of a policy of shooting at sight against suspicions of drug trafficking.
This position is different from what the President in November 2016 said at ABC media, before visiting Australia, that his country is willing to go towards abolition.
The 1997 Narcotics Law carries the death penalty for convicted drug dealers but the maximum sentence is rarely imposed.
Executions were relatively rare in Indonesia until 2004, when under the scope of a national campaign against drug abuse and drug dealing launched by then-President Megawati Sukarnoputri in view of elections, three foreigners were shot for trafficking heroin.
The new President of Indonesia, Joko Widodo, who took office in October 2014, has taken a particularly hard line towards people on death row for narcotics offences, insisting they will not receive a presidential pardon as Indonesia is facing an “emergency” due to high levels of drug use.
After a de facto moratorium dating back to 2008, Indonesia resumed executions in 2013 when five people were put to death, including two convicted of drug trafficking.
No executions were carried out in 2014. However, in 2015 Indonesia put another 14 drug convicts to death.
As of 5 January 2016, there were 55 drug convicts under death sentence, 14 of whom were awaiting their execution, according to the National Narcotics Agency (BNN).
On 18 January 2015, Indonesia executed a national woman and five foreigners, who had all been sentenced to death on drug offences, in the first executions to take place under President Joko Widodo, who refused to heed all international requests for clemency. Vietnamese woman Tran Thi Bich Hanh was executed in Boyolali district in central Java, while five others were put to death on Nusakambangan Island, home to a high-security prison. They included an Indonesian woman, Rani Andriani, along with 53-year-old Brazilian Marco Archer Cardoso Moreira and 62-year-old Dutchman Ang Kiem Soei. Two Nigerians – Daniel Enemuo and Solomon Chibuike Okafor, Solomon however being classified as a citizen of Malawi because he was arrested using a Malawian passport bearing Namaona Denis – were also executed. They were sentenced to death between 2000 and 2011, and all the prisoners were executed by firing squad around the same time, shortly after midnight. All those executed were caught attempting to smuggle drugs apart from the Dutchman, who was sentenced to death for operating a huge factory producing ecstasy.
Brazil’s president and the Dutch foreign minister led an international outcry against the executions. Brazil recalled its ambassador in Jakarta for consultations and said the executions would affect bilateral relations. “The use of the death penalty, which the world society increasingly condemns, affects severely the relationship of our countries,” President Dilma Roussef said in a statement published by Brazil’s official news agency. The Netherlands, a former colonial power in Indonesia, also recalled its ambassador and condemned the execution of its citizen, Ang Kiem Soei. “It is a cruel and inhuman punishment that amounts to an unacceptable denial of human dignity and integrity,” said Dutch foreign minister Bert Koenders.
On 13 February 2015, United Nations Secretary-General Ban Ki-moon appealed to Indonesia not to execute the remaining prisoners on death row for drug-related offenses. U.N. spokesman Stephane Dujarric said Ban had spoken with Indonesian Foreign Minister Retno Marsudi “to express his concern at the recent application of capital punishment in Indonesia.” “The United Nations opposes the death penalty under all circumstances,” Dujarric said in a statement.
On 29 April 2015, defying intense pressure from the international community, the government executed another eight drug convicts at 12:30 a.m. on Nusakambangan prison island near Cilacap in Central Java. The eight were Indonesian Zainal Abidin, Australians Andrew Chan and Myuran Sukumaran, Brazilian Rodrigo Gularte, Nigerians Sylvester Obiekwe Nwolise, Raheem Agbaje Salami and Okwudili Oyatanze, Ghanaian Martin Anderson. Chan and Sukumaran were arrested on the holiday island of Bali in 2005 for trying to smuggle 8 kg of heroin to Australia. They were convicted for being the ringleaders of a group of Australian heroin traffickers known as the Bali Nine. Mary Jane Fiesta Veloso of the Philippines, the only female convict due to be shot alongside Andrew Chan and Myuran Sukumaran, was spared the firing squad after she agreed to give evidence on drug syndicates. The eight death penalties were carried out after Jakarta rejected last-ditch pleas from the prisoners’ families and the international community. The proposed death sentences were condemned by the United Nations, and have caused diplomatic tensions between Australia and Indonesia.
On 19 November 2015, Indonesia said the government had postponed planned executions of drug traffickers as it focused on fixing the economy. Coordinating Minister for Political, Legal and Security Affairs, Luhut Panjaitan, denied reports that the Indonesian government had declared a moratorium on the death penalty, saying the moratorium would not be permanent.
On 18 April 2016, President Joko Widodo defended the use of the death penalty for drug offenses, arguing that drug abuse constitutes an emergency. He said 30-50 people a day die in Indonesia because of drugs. He spoke after meeting German Chancellor Angela Merkel, who underlined Germany's opposition to capital punishment and its wish for Indonesia "not to implement it if possible." Since the independence, in 1945, Indonesia executed 82 people (as of 31 December 2017). Top secret death
Generally, death sentences are carried out by firing squad early in the morning, and the authorities divulge news of executions after they have taken place, with relatives, lawyers and the condemned people themselves being kept in the dark before the actual executions take place.
The condemned are informed of their execution only 72 hours in advance.
The practice of the death penalty in a shroud of secrecy highlights is not only devastating for the individuals and their families; it can also prevent last minute appeals for a stay of execution.
No executions were carried out in 2014. However, in 2015 Indonesia put fourteen drug convicts to death, in the first executions to take place under new President Joko “Jokowi” Widodo, who took office in October 2014.
In 2016, 4 people have been executed by firing squad, all for drug related crimes. Since its independence in 1945, Indonesia has executed 82 people (as of 31 December 2016). At the end of April 2016, there were about 180 inmates facing the death penalty, most of them for drug trafficking. At least 60 people were sentenced to death in 2016, according to Amnesty International. As of the end of 2016, there were 215 death row inmates, most of them for drug related crimes.
No execution was recorded in 2017, but at least 47 new death sentences were issued according to Amnesty Internation, 33 of which for drug. At least 262 people were sentenced to death in 2017, according to Amnesty International. But Harm reduction International, referring to Indonesia Directorate General of Correction, Ministry of Law and Human Rights, reported 165 under death row, 75 for drug offences.
According the Nigerian embassy in Jakarta on 3 May 2017, there were 121 Nigerian citizens in prison for drug crimes, 13 sentenced to death.
In the Human Rights Council’s 2008 Universal Periodic Review of human rights in Indonesia, members recommended that Indonesia abolished the death penalty and cooperated with special procedures; Indonesia responded that it intended to retain the death penalty in a selective and limited manner and supported efforts to strengthen safeguards in application of the death penalty.
On 23 May 2012, Indonesia was reviewed under the Universal Periodic Review of the UN Human Rights Council. The Government rejected recommendations to establish an official moratorium on executions with a view to abolishing the death penalty.
On 6 November 2014, new Law and Human Rights Minister Yasonna Laoly said he was personally against the death penalty. "I'm among those who think of the death penalty differently,” he said. "That's my principle. I'm not a supporter of the death penalty." While this was his view, Mr Yasonna said he wasn't "pushing it", as he respected the sentences handed down by the courts.
In May 2017, during the third cycle of Universal Periodic Review, Indonesia accepted two recommendations relating to the death penalty were made, of which Indonesia accepted two: to consider establishing a moratorium on executions and to ensure the right to a fair trial and the right to appeal for persons sentenced to death. Indonesia rejected reccomendations to abolish the death penalty because "the death penalty is still a prevailing positive law in Indonesia." "However, the revision of the penal code had provided a more robust safeguard in due process of law on the death penalty," Indonesia's deputy permanent representative to the UN office in Geneva, Michael Tene, said.
On 19 December 2016, for the third time, Indonesia abstained on the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly. Previous to December 20, 2012 it had always voted against the Resolution.
On 29 September 2017, Indonesia abstained on the Resolution on the death penalty at the 36° session of the UN Council for Human Rights.