Engaging with Asia in Abolishing the Death Penalty: A story from Indonesia

By Fia Hamid-Walker

It has been more than four months since Andrew Chan and Myuran Sukumaran were executed in Indonesia. Despite an enormous public outcry and pleas to halt the execution, the battle was lost. The pain remains and the wounds have not yet healed.

Australia must take a lead in opposing capital punishment in Asia. This will only be fruitful when we truly understand the diversity and complexity of Asian societies, which characterise their legal systems. Leadership means we need to work together on an equal footing with people within those systems who share our goals.

I spent the last two consecutive summers assisting Indonesian lawyers who were representing clients facing the death penalty, on behalf of Reprieve Australia. Since 2013, Reprieve Australia has expanded its program to Southeast Asian countries. Its new strategic advocacy was animated by the case of the Bali Nine, and the alarming fact that at least 695 new death sentences were imposed in 17 countries within the Asia-Pacific Region.

The execution of Andrew and Myuran has created momentum for voices arguing to abolish the death penalty in Asia. The very first Regional Conference against the Death Penalty was held in Kuala Lumpur in June 2015, along with a number of small-scale national anti-death penalty workshops organised for local activists in Asia.

The outrage of seeing our citizens being executed has generated support for this movement among Australians. The federal government has called out for submissions on how Australia can better engage in the abolition of the death penalty around the world, particularly in Asia. A collective statement written by human rights groups has set out four recommendations on how Australia can play an active role in advocating the abolishment of the death penalty in Asia. One of them is to utilise aid programs to support civil society groups in retentionist countries, such as Indonesia.

The Indonesian legal system

Indonesia is a complex nation with a long history of colonialism mixed with ethnic tensions in different parts of the country. Before the arrival of Dutch imperialism in the 18th century, Indonesia did not exist as a single country. It was comprised of small and large kingdoms, each applying their own customary laws.

Under Dutch colonialism, the Roman-Dutch civil law system was administered for over 350 years and continues to influence the country’s legal system today. The Indonesian Criminal Code (known as KUHP) is one of the laws inherited from Dutch colonialism.

A combination of customary, colonial and new laws – influenced by both Anglo-American laws and Sharia laws – exists today. This produces overlap and contradictions within the system, which are observed in both executive and judicial decisions. Indonesian capital punishment laws and policies have been regulated through these layered mechanisms.

Amending the death penalty in Indonesia

In 2007, a proposal to amend death penalty clauses in the Criminal Code ignited public debate in Indonesia. A number of civil societies proposed to insert section 89 into their Criminal Code, which states:

Any person who has been sentenced to death and has served their time for a period of 10 years with good behaviour, will have her/his sentence commuted to life imprisonment.

A criticism of this proposed section is that, without sentencing guidelines that govern the judges’ discretion on this matter, it could be made redundant or inconsistent by its intersection with other proposed sections. Currently, there are 14 offences under Indonesian laws that are punishable by death.

Furthermore, the proposal gives the power to exercise section 89 to the Indonesian Human Rights and Justice Minister and the Public Prosecutors, not to the Courts. This adds another layer of confusion into the debate.

Considering the complications and the vested interests within the legal system, abolishing the death penalty in Indonesia will be a lengthy and frustrating process.

Assisting local lawyers and activists on the ground: dos and don’ts

Working with lawyers whose clients are facing the death penalty is extremely distressing. The death penalty is an extreme form of torture and punishment that is worse than having a client incarcerated or being put in solitary confinement. It requires a great level of maturity and resilience of an intern.

The complications of working in non-western countries, such as in Southeast Asia, adds to the challenge. Not only do they speak multiple languages, but thousands of cultural differences exist that we may be unfamiliar with.

“The death penalty is unacceptable in any circumstance,
but we must let the local community guide us to assist them to change from within.”

We speak of universal human rights – that the death penalty is unacceptable whether it is practiced in the US or in an Asian country. At the same time, it is important to keep in mind that, even in the process of creating the Universal Declaration of Human Rights, disagreements between western individualistic human rights versus eastern communal perspectives were vehemently argued. These sentiments are still strongly embedded, even among progressive human rights defenders in Indonesia.

If we are serious about assisting human rights activists in different societies, we must be open-minded and acknowledge that each individual and cultural system is unique in its own way. The death penalty is unacceptable in any circumstance, but we must let the local community guide us to assist them to change from within.

Over the last two summers, Indonesians were willing to reconsider their position on the death penalty until the moment our leaders made disrespectful remarks regarding the aid we provide them. It is time that Australia seriously reforms our engagement with our neighbours on this issue.

Fia Hamid-Walker was an intern at Reprieve Australia SE Asia and has worked as an international development consultant. She is currently completing an Bachelor Arts/Laws at Monash University and is a volunteer coordinator at the Flemington-Kensington Community Legal Centre. @fiawalker  

Feature image: Matt Paish/ Flickr