20 October 2022 :
When Indonesia recently unveiled the latest plans to overhaul its ageing Criminal Code, one of the articles that caught everyone’s eye was the one about the death penalty.
While Indonesia has long executed those convicted of crimes such as terrorism, murder, and drug trafficking, the draft of the new Criminal Code describes execution as a “last resort” and offers an alternative: a 10-year probationary period during which those condemned can have the sentence replaced with a life term if they meet certain conditions.
According to the draft, which is expected to be signed into law in the coming months, judges will be empowered to hand down a death sentence with a probationary period of 10 years if the defendant “shows remorse, there is a chance of reform, they did not play a large role in the crime committed, or there were mitigating factors in the case”.
The so-called probationary death sentence, which has echoes of the two-year ‘reprieve’ that China offers to some of those convicted to death, has raised some concerns, however.
Usman Hamid, the head of Amnesty Indonesia, which campaigns for an end to the death penalty in its entirety, says that if a probationary period is going to be used, it should be granted to everyone who is sentenced to death.
“The concept of the death penalty as an alternative punishment is inconsistent, because the government’s formulation has regressed to where the waiting period is dependent on the judge’s decision, something that is prone to abuse,” he said.
Kirsten Han, a Singapore based anti-death penalty campaigner and independent journalist, says Indonesia’s plans for a probationary death penalty were interesting, but that it remained to be seen how it would actually work in practice.
“It is an improvement from what we have because at least it says that the death penalty should be a ‘last resort’ and that there are mitigating factors, whereas what we have here is mandatory death,” she said. “My main question would be how and who evaluates the criteria like ‘good behaviour’ and ‘chance for reform’.”
Dobby Chew, the executive coordinator of the Anti-Death Penalty Asia Network based in Malaysia, agrees.
“It is not a bad idea per se and could be described as somewhat progress. But the conception and framework can be highly problematic as the starting point still requires a person to be sentenced to death,” Chew said.
“A probationary death penalty would put inmates in this odd circumstance where they have to live with the idea they need to prove themselves redeemed with the knowledge that their life would be forfeited if they don’t hovering over their head. In such circumstances, can any repentance even be considered genuine by any standards?”
Chew also agreed that the state would need to be careful in determining the criteria or context of the probationary period and have objective and measurable benchmarks in relation to perceptions of reform.
“The impact on the mental health of inmates and families differs substantially, some families are fundamentally broken, traumatised or damaged by the incarceration as the foundation for their family and lives were destroyed with the conviction and sentence. Occurrences of mental breakdown, or inmates living on a knife edge is relatively common,” Chew added.
He worries that a probationary death sentence in Indonesia will become a compromise that fails to address either reform or punishment.
“Trying to sugarcoat it in a probationary system does not solve the fundamental issues around the death penalty, nor would it provide society with the justice expected,” he said.
“And if a person was able to prove their repentance, or was able to show a lesser degree of culpability, would they have suffered unnecessarily on death row for the 10 years?”
“Do they deserve to have a metaphorical gun pointed at them for the 10 years of their incarceration?”