Indonesia mulls introduction of a ‘probationary’ death penalty

Medan, Indonesia – 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.

According to Amnesty data, some 579 executions were recorded worldwide in 2021, a 20 percent increase from 2020.

Large increases were seen in Iran and Saudi Arabia, while data on China was not included because the government there designates executions a state secret.

Many countries in Southeast Asia are also retentionist, and Myanmar’s military regime actually revived the use of the death penalty in July after a decades-long hiatus, executing four political activists.

Still, there have been shifts elsewhere.

The Philippines suspended the use of capital punishment in 2006, and in June, Malaysia announced that it would abolish the mandatory death penalty.

Singapore announced something similar in 2012 when it made some offences, including drug trafficking and murder, exempt from a mandatory death sentence.

The reform, which was signed into force a year later, empowered judges to use discretion with regard to sentencing and take into account factors such as cooperation with authorities and the mental state of the perpetrators, although anti-death penalty campaigners have since said that these have been unevenly applied in some cases.

There were no executions in 2020 or 2021 in Singapore, due to legal applications affecting death row prisoners pending in the courts, but hangings resumed in 2022.

“In Singapore the timeline for executions would generally be fairly quick compared to places like the US, but there has been a ‘backlog’ over the past 10 years due to legal amendments that allowed many of the death row prisoners to apply for re-sentencing,”  Kirsten Han, a Singapore based anti-death penalty campaigner and independent journalist told Al Jazeera.

‘Metaphorical gun’

Han 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.

“From the Singapore perspective, 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.

In Malaysia, inmates often spend at least 15 years on death row as their appeals go through the courts, Chew said.

One convict has been there for 34 years.

“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?”

For Amnesty’s Hamid, the solution is simple.

“The death penalty should be abolished,” he said. “Since Amnesty’s campaign against the death penalty in the 1960s, global developments show that two-thirds of the world’s countries have abolished the death penalty.”