Leiden Law Blog

Capital punishment in Indonesia

Capital punishment in Indonesia

Last Sunday Dutch national Ang Kiem Soei was executed by the Indonesian authorities after having been on death row for more than 10 years following a conviction for producing and distributing XTC. Appeals from the Dutch Prime Minister and even the King could not save Ang, whose appeal for clemency to President Joko Widodo had been rejected on 8 January. The execution elicited a sharp reaction from the Dutch government, which recalled its ambassador and is now considering further measures in protest.

This case raises several questions. One is whether the whole process was legally correct. For Ang’s initial trial this is hard to judge without an in-depth inquiry, however the allegation made by a Dutch journalist that ‘most trials in Indonesia are unfair’ goes much too far. We know that in Indonesia capital punishment for drugs related crimes is not uncommon: 66 out of 129 currently on death row are drug convicts. In a ruling of 2007 the Indonesian Constitutional Court moreover rejected the claim that capital punishment violates the Constitution. It refused the argument – also made by Minister Koenders in his letter to the Dutch Parliament – that capital punishment violates the ICCPR. On this point Indonesia finds for instance the US and Australia on its side (even if its own National Human Rights Commission disagrees). Another argument from Ang’s lawyer was that Ang was executed before his claim for revision had been decided by the Supreme Court. According to the Code of Criminal Procedure, however, such an appeal does not suspend the execution of the judgment. Granting clemency, finally,  is the full discretion of the President. So the rules may be harsh, but procedurally speaking the decision seems correct.

The question then remains what the politics of this decision were. Why would President Jokowi ignore the view of the many NGO-activists who supported his election and jeopardise Indonesia’s foreign relations?

The most logical answer seems to be that he has acted from a position of political insecurity. Jokowi is facing a hostile parliament, which tries to obstruct his policies. At the same time the party bosses who enabled his election have forced some political appointments upon him that are highly controversial from a human rights and anti-corruption perspective. This has exposed him to serious criticism, and in such a situation a bold move makes sense. Last Sunday’s executions were therefore fundamentally a show of presidential decisiveness in law enforcement.

Such executions can serve this function because they enjoy local legitimacy. Indonesia has serious problems with drug use and trafficking and there seems to be overwhelming public support for capital punishment in drug related crimes. Officials continue to voice the belief that capital punishment has a strong deterrent effect, while at the same time the call for retribution is loud –  from the Commission for the Protection of Children to the Board of Muslim Clerics. For President Jokowi, ordering the execution of drug convicts therefore makes more sense than giving in to foreign pressure.

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