Indonesia: the collateral damage of security rhetoric

Albert Wirya. In Indonesia, the death penalty is used by law enforcement and by the government as a tool in enforcing drug policies. Since 2015, our country has been undertaking a strict and harsh war on drugs. The Narcotics Act No. 35 states that the death penalty can be applied to people who produce, import, transfer, become intermediaries, or sell and buy over a certain quantity of drugs (one kilogram for marijuana, five grams for methamphetamine or heroin). However, judges receive inadequate training on the application of drug-related sentences, leading to significant disparities. For example, some people convicted for possession of less than 100 grams of heroin receive the same sentence as those caught with more than 500 kilograms.

The prison administration reported that there are 542 people on death row on the 31st of July 2024. A report by Harm reduction International states that 52% of convictions are for drug-related offences. This number keeps increasing. To justify the continuous use of the death sentence, our law enforcement agencies and our politicians regularly use a narrative that presents drugs as the major threat facing the nation. This legitimises them to act firmly, prioritising “security” over human rights.

AW. A new Criminal Code was approved by the Parliament in 2022, but the will to reform it had been present for a very long time, around 40 years. We are currently in a transition period, until 2026, because of a three-year buffer period before its implementation can begin. In the new Criminal Code, the death penalty is not mandatory for the aforementioned drug offences. Prisoners sentenced to death initially receive a 10-year term, after which their cases are reexamined. If they show remorse and played a minor role in the offense, the death sentence can be commuted into a life sentence. The commuting must however be declared by presidential decree, which creates a risk of politicisation. The new Code also includes a delay for the execution of a category of people : for people with psychosocial disabilities until there are healed and for pregnant women until they give birth and no longer breastfeed their babies.

Therefore, it’s not a good reform per se, but it gives at least the opportunity for the organisations of the civil society to push the government to reconsider the execution.

There are other legal avenues to prevent a conviction for the death penalty, such as applying for clemency to the President or calling for a retrial in the event of new evidence or judicial mistakes. In our experience as a legal aid organisation, we observe many obstacles in accessing these mechanisms. For instance, it requires the person to have good lawyer and support in order to conduct their own investigation. This is even harder for people on death row because they face additional social stigma: they are portrayed by the media and law enforcement agencies as very dangerous and violent. The proportion of lawyers that can provide free and accessible legal aid is very limited. Therefore, the death penalty reveals economic inequalities since it is most likely to impact people that cannot afford legal assistance.

AW. We conducted a survey on public opinion about the death penalty in Indonesia with the University of Oxford, between 2019 and 2020. The results showed us that the majority of the Indonesian, around 69%, are still supporting the death penalty. However, when we investigated further, we realised that most of the people do not have a clear understanding of the system. Only 2% considered themselves well informed regarding the death sentence. We also noted that the percentage of those in favour dropped when responders were given another option for alternative punishments, such as parole, for cases proven unfairly judged, or when the culpability of the person convicted was not clear. The percentage of people in favour also dropped when they heard a public figure they tend to follow, such as a religious leader, supporting its abolition.

Most of the voices against the death penalty come from civil society. We have received support from religious leaders, such as Catholic and other Christian leaders. We also have several allies in the government. Even if they do not have the independence to say those things out loud, they support our advocacy work.

For us, the most important help comes from the international community. In 2015 and 2016, we received significant support from international media and diplomats pushing the President to stop the executions. This was very helpful at the time, as there were no further executions after that. But since then, the number of death sentences has risen sharply.