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Jurnal Edunity: Kajian Ilmu Sosial dan Pendidikan
Volume 1 Number 5, Januari, 2023
p- ISSN 2963-3648- e-ISSN 2964-8653
RECONSTRUCTION OF CONDITIONAL DEATH PENALTY NORMS IN
THE PERSPECTIVE OF RENEWING INDONESIAN CRIMINAL LAW
Joko Cahyono 1, Faisal Santiago2
Faculty of Law, Borobudur University, Jakarta Indonesia
E-mail: jkcahyono7777@gmail.com1, faisalsantiago@borobudur.ac.id2
INFO ARTIKEL
Received: 1
January 2023
Revised: 5 January
2023
Approved: 10
January 2023
ABSTRACT
Penal reform is something that must be done as a form of adjustment
to applicable law with changes in values, times, technology, national
and international insights. Death penalty in Indonesia also needs to
be updated to adjust these developments, especially in the adjustment
of the values adopted by the Indonesian people. This study aims to
determine the policy on conditional death penalty formulation in the
law currently in force in Indonesia, and analyze the policy
formulation of the ideals of conditional death penalty in Indonesia.
This research uses a qualitative method with a normative approach.
This research results in the fact that the law in Indonesia has not yet
regulated the conditional death sentence, so there is still a conflict
between those who want to abolish capital punishment and those who
want to continue implementing capital punishment. Conditional
death penalty is needed as a middle ground between the two groups.
Conditional death penalty is also needed as an evaluatif process for
prisoners in serving their sentences and respecting human rights in
accordance with national and international perspectives.
Keywords: Formulation Poilcy, Conditional Death Penalty,
Penal Reform
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International
INTRODUCTION
Legal reform is a necessity because it will certainly occur along with the
development of science. Likewise, criminal law changes according to human
development as lawmakers. Criminal law reform can be interpreted as a continuous
effort through legislation to harmonize criminal legislation with legal principles, as
well as values that develop in society at both national and international levels(Jaya,
2016).
The values that develop in society are influenced by national insights and
international insights from the people of a country. In Indonesia, of course, the most
influential national insight is the values contained in Pancasila. Pancasila is the
basic norm (grundnorm) that uniquely distinguishes Indonesia from other countries.
The renewal of criminal law is also influenced by global (international) insights
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such as the results of the agreement of United Nations conference, international
agreements, the results of international seminars, and so on (Arief, 2014) .
Wetboek van Starfrecht (WvS) or what can be called the Criminal Code
(KUHP) is a general rule in the criminal system in Indonesia that is also not spared
from reform. The Indonesian Criminal Code, which is a legacy of the Dutch during
the colonial era, continues to be used by Indonesia to this day with some minor
adjustments. The development of the times and the differences in values adopted
by the Netherlands and Indonesia made the values in the Criminal Code need to be
adjusted to the values of the nation and state of Indonesia as an independent country
(Rado, Arief, & Soponyono, 2016).
Legal reform in Indonesia is shown through the drafting of a new Criminal
Code as a law that the Indonesian nation aspires to (ius constituendum), not a
colonial legacy. This is because the values adopted by the Dutch during the colonial
era were the values of liberalism, non-religion, racial discrimination, unlimited
respect for human rights, individualism, and rigid state absolutism. This value is
not in line with the values of the Indonesian nation's identity which are divinity,
cooperation, respect for the public interest, and deliberation to reach a consensus
(Maulidah & Jaya, 2019).
The preparation of the Draft Criminal Code (RKUHP) should adapt to the
values of the Indonesian people's identity. The values of the Indonesian nation's
identity can be found in Pancasila or the so-called Five Guiding Principles. It
consists of Belief in One Supreme God, Justice and Civilized Humanity, Indonesian
Unity, Democracy Led by Wisdom and Wisdom in Representative Deliberations,
and Social Justice for All Indonesian People. This value is a form of discovery, not
the formation of values compiled by the national founding fathers. The law must
follow the values adopted by law enforcers (Lindsey, 2017).
The death penalty is regulated in Chapter II regarding the crime in Article 10
letter number 1 of the Criminal Code. The death penalty is included in the main
criminal group, namely a sentence that is threatened directly with the core. The
location of the death penalty in the first order of the main punishment is also an
analysis that the death penalty is the most severe crime compared to other basic
crimes such as imprisonment, confinement, fines, and criminal closures. This is also
confirmed by the provisions in Article 69 paragraph 3 Article 10 of the Criminal
Code, which states that the ratio of the severity of the different principal crimes is
determined according to the sequence. In various other countries that have not
abolished the death penalty, they place the death penalty as the most severe
punishment compared to other forms of punishment (Then, 2015).
In the process of reforming the Criminal Code in Indonesia, several parties
disagree with the death penalty. From the groups who support full respect for human
rights and want to completely abolish the death penalty in Indonesia, this group in
the international world is commonly referred to as the abolitionist group. The
groups that still maintain the death penalty in Indonesia are usually influenced by
cultural and religious backgrounds that allow and even view the death penalty as
the main and effective punishment in tackling crimes. This group in the
international world is often referred to as the retentionist group (Beltran de Felip &
Martin, 2012).
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The abolitionists want to completely abolish the death penalty in the Criminal
Code because they argue that the right to life is a right inherent in human beings.
This inherent right cannot be contested by anything except by the giver of life,
namely God Almighty. In a constitutional study, the abolitionists adhered to Article
28 A of the 1945 Amendment to the 1945 Constitution which states that everyone
has the right to live and the right to defend their life. Amendment to the 1945
Constitution. The abolitionists also adhered to the International Convention of Civil
and Political Rights (ICCPR). Article 6 paragraph (1) of the ICCPR states that
“every human being has the right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life” or it can be interpreted that every human
being has the right to life which is protected by law, there is nothing that can
interfere with that right (Corteen & Steele, 2018).
Meanwhile, retentionists, who mostly come from religious groups, argue that
the death penalty is a punishment ordered by God through religious scriptures,
therefore it is indeed permissible to do it to save the greater interest.
Constitutionally, retentionists adhere to Article 28 J paragraph (2) of the second
amendment to the 1945 Constitution, which states that: "In exercising their rights
and freedoms, everyone is obliged to comply with the restrictions stipulated by law
for the sole purpose of guaranteeing recognition and respect for the rights and
freedoms of others and to fulfill just demands under considerations of morals,
religious values, security and public order in a democratic society”. This is an
argument that the right to life can be taken through the death penalty for the sake of
a larger society. In international instruments, namely article 6 paragraph (2) of the
ICCPR, it is explained that the death penalty can be imposed only for the most
serious crimes under the law in force at the time the crime was committed and does
not conflict with the articles of the ICCPR (Jaya, 2016).
The conflict between the retentionist and abolitionist groups should not
interfere with the reform of Indonesian criminal law, especially in the formulation
of policies for the formulation of the death penalty following the values of the
Indonesian nation. The criminal law reform must indeed follow the national insight
and the nation's ideology, namely Pancasila, then only be adjusted to international
legal instruments. So that the aspired criminal law is achieved and follows the
values adopted by the community (Christianto, 2009). Therefore, this study aims to
determine the conditional death penalty formulation policy in the Indonesian
Criminal Code which is currently in force, and the conditional death penalty in the
Indonesian RKUHP 2019. So that after knowing the formulation policy it can be
analyzed with the theory of criminal law reform that every legal reform must
progress in the form of law that accommodates something that is considered good
and right (value) of a nation (Alviolita & Arief, 2019).
Previous similar research was research conducted by Sapto Handoyo Dwi
Putra on the implementation of conditional punishment in the criminal system in
Indonesia, but not specifically on the conditional death penalty (Putra & Sutanti,
2020). Then research by Toule discusses the existence of the threat of capital
punishment specifically in the case of corruption ((Toule, 2016). Then Anjari's
research on capital punishment in Indonesia from the perspective of Human Rights
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(Anjari, 2015). Furthermore, research on capital punishment conducted by foreign
researchers is the imposition of capital punishment from an international
perspective by Hood and Hoyle (Hood & Hoyle, 2015), and research on the
deterrent effect of the death penalty by Nagin and Pepper (Council, Nagin, &
Pepper, 2012).
Therefore, the novelty of this research focuses on the middle way of peace
between the retentionists and abolisonists in the policy of formulating the death
penalty into conditional capital punishment in the perspective of reforming the
national criminal law. This study will find out about the policy on the formulation
of the death penalty in Indonesian criminal legislation in the present and then
compare it with the policy on the formulation of the conditional death penalty in
Indonesian criminal legislation in the future.
RESEARCH METHOD
The discussion of conditional capital punishment from the perspective of
Indonesian criminal law reform uses a qualitative normative legal research
approach. What is meant by a qualitative normative legal approach is research that
uses a method of describing, explaining, analyzing, and developing the construction
of the death penalty law from the perspective of the identity of the Indonesian nation
(Barus, 2013). The data collection method in this study is by analyzing phenomena,
identifying regulations, describing words from research materials (scientific
works), and other sources of legal materials that have relevance to the research
discussion raised (Irianto, 2017).
RESULT AND DISCUSSION
A. The Formalation of the Death Penalty in Indonesian Laws at the Present
Time The death penalty in the Indonesian criminal law system is regulated in
Article 10 of the Criminal Code as a principal crime, namely a crime that is
threatened directly by the perpetrator of a crime. The execution of the death
penalty is carried out by being shot using a firearm with the criminal provisions
contained in Law no. 2/PNPS/1964. Based on this law, the procedure for
implementing the death penalty in Indonesia is carried out by being shot to death
by a firing squad, which is carried out somewhere within the jurisdiction of the
court that renders the first-degree decision, unless otherwise determined by the
Minister of Justice and Human Rights. whose implementation is attended by the
regional commissariat (Kapolres) or an officer appointed by him together with
the responsible High Prosecutor/Prosecutor.
The existence of the death penalty in Indonesia, apart from being a cultural
and religious issue, is also political. The Dutch colonial government seems to
have intentionally left a "ticking time bomb" regarding the death penalty,
because in 1870 the Dutch themselves abolished the death penalty for general
crimes, but still enforced it for military crimes and war crimes until 1983. been
implemented since 1950.
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The Netherlands has ratified “Protocol No. 6 European Convention on
Human Rights on the Abolition of the Death Penalty" (1982). On the other hand,
the death penalty was still applied in the Dutch East Indies for serious crimes for
colonial interests (Johnson, 2010).
Explanation: the Indonesian Criminal Code is a "copy" of the Dutch
Criminal Code 1886 and has been in effect since January 1, 1918, which was
then based on Transitional Rules No. II of the 1945 Constitution and Law no. 1
the year 1946 jo. UU no. 73/1958 remains in effect, while the death penalty is
still threatened for serious crimes: crimes against state security, premeditated
murder, theft by weight, piracy at sea, etc. Post-independence products increase
the number of criminal acts that are punishable by the death penalty: firearms,
air piracy, terrorism, drugs, gross human rights violations, corruption during
natural disasters or economic crises, etc. (Putra & Sutanti, 2020).
In the Criminal Code itself, there are nine types of crimes that are
punishable by the death penalty, including 1. Makar with the intention of killing
the President and Vice President (Article 104 of the Criminal Code); 2.
Conducting relations with foreign countries resulting in war (Article 111
paragraph (2) of the Criminal Code); 3. Betrayal informing the enemy in time of
war (Article 124 paragraph (3) of the Criminal Code); 4. Instigating and
facilitating the occurrence of riots (Article 124 bis of the Criminal Code); 5.
Premeditated murder of heads of friendly countries (Article 140 paragraph (3)
of the Criminal Code); Premeditated murder (Article 340 of the Criminal Code);
7. Theft with violence in an alliance results in serious injury or death (Article
365 paragraph of the Criminal Code); 8. Piracy at sea that causes death (Article
444 of the Criminal Code); 9. Aviation crimes and aviation facilities (Article 149
K paragraph (2), Article 149 O paragraph (2) of the Criminal Code).
Meanwhile, the threat of capital punishment outside the Criminal Code
which is a special crime, among others: 1. Criminal Acts of Firearms,
Ammunition, or Explosives (Law No. 12/DRT/1951); 2. Economic Crimes (Law
No. 7 /DRT/1955); 3. Criminal Acts concerning Atomic Energy (Law No.
3/1964); 4. Narcotics and Psychotropic Crimes (Law No. 22 of 1997 and Law
No. 5 of 1997); 5. Corruption Crimes (Law No. 31 of 1999 in conjunction with
Law NO. 20 of 2001); 6. Crimes against Human Rights (Law No. 26 of 2000);
7. Criminal Acts of Terrorism (Perppu No.1 of 2002).
The problems that arise because of the threat of capital punishment
(primary punishment) in the Indonesian criminal law system include the issue of
executions using firearms by firing squad which are considered inhumane by
retentionists and abolisonists. Then the unclear waiting time for the execution of
the death penalty has made the convict unstable in extraordinary legal efforts,
namely the submission of a judicial review (PK) and the application of clemency
to the president. The death penalty is considered a form of punishment that is not
evaluative against criminals or does not have a restorative justice perspective
((Bindler & Hjalmarsson, 2020).
In Indonesia's national criminal law system, it is not known that there is a
conditional death penalty regulation because the death penalty is always
threatened as a principal crime against certain crimes both inside and outside the
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Criminal Code. The execution of the death penalty often causes various
problems, namely, the waiting time is not clear for the convict because he is
waiting for the receipt of a clemency application and an uncertain
reconsideration application, there are even those whose clemency decisions have
been rejected but have not been executed ((Zaini & NPM, 2013). Then the
potential for a wrong decision (error in persona) makes the death penalty a "non-
evaluative" crime. This is because after being executed, the convict's life cannot
be returned..
B. Conditional Death Penalty in the Indonesian Criminal Code in the Future
In Article 64 of the 2019 RKUHP, the death penalty is not included in the main
punishment but is a special crime that is threatened with always being side by side with
other crimes so it is called a conditional death penalty. The conditional death penalty
arrangement in the RKUHP is a middle-way solution that is characterized by Indonesia
(Indonesian Way). This is under article 98 of the RKUHP where the purpose of the
death penalty is the last resort (ultimum remidium) to prevent criminal acts and protect
the community. This article is also a resolution of conflicts between the retentionist and
abolitionist groups where a middle way is taken that the death penalty is still carried out
as a last resort for the greater interest of protecting and protecting the community.
(principle of law)
The provision that a conditional death penalty can be imposed is regulated in
Article 99 of the RKUHP, namely in Article 99 paragraph (1) that the execution of the
death penalty can be carried out after the request for clemency is rejected by the
president, then in paragraph (2) it is explained that its implementation is not carried out
in public, then in paragraph (3) regarding the method of execution by firing squad or by
other means determined by law, as well as paragraph (4) regarding the postponement of
execution of pregnant women until they give birth, breastfeeding women until they are
no longer breastfeeding their babies, and crazy to get well.
Then in Article 100 paragraph (1) of the RKUHP, it is explained about a
probationary period of 10 years which can be imposed by a judge if it fulfills three
conditions, namely: a) the defendant shows regret and there is hope for improvement;
b) the role of the accused in the crime is not very important, or c) there are mitigating
reasons. Then in article 100 paragraph (2) of the RKUHP, it is explained that the
probationary period must be included in the court decision. Furthermore, in Article 100
paragraph (3) of the RKUHP, it is explained that the calculation of the day is carried out
one day after the decision has permanent legal force (inkracht). This provision is
intended to provide legal certainty regarding the waiting period for convicts
(Kyambalesa, 2019).
Article 100 paragraph (4) of the RKUHP explains that the convict during the
probationary period as referred to in paragraph (1) shows commendable attitudes and
actions, the death penalty can be changed to life imprisonment by a Presidential Decree
after obtaining consideration from the Supreme Court. Here it is explained about the
evaluative side of the conditional death penalty where if there is the hope of the convict
to repent then the death penalty can be changed to life imprisonment (Zoomers, 2010).
Article 100 paragraph (5) of the RKUHP states that if the convict during the
probationary period as referred to in paragraph (1) does not show commendable
attitudes and actions and there is no hope for improvement, the death penalty can be
carried out on the orders of the Attorney General. This shows the government's firmness
to continue executing death row inmates if there is no hope for improvement (Putra &
Sutanti, 2020).
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Article 101 of the RKUHP states that if the request for clemency of the death row
convict is rejected and the death penalty is not carried out for 10 (ten) years since the
clemency was rejected, not because the convict has fled, the death penalty can be
changed to life imprisonment by Presidential Decree (Keepers). The death penalty can
be changed to life imprisonment or a maximum of 20 years in prison if during the
probationary period concerned, shows a commendable attitude and action with the
Presidential Decree with the consideration of the Supreme Court.
Then in Article 102 of the RKUHP, it is explained that further provisions
regarding the procedure for implementing the death penalty are regulated by law. This
implies that the RKUHP still provides an opportunity for policymakers to be able to
correct how the execution of the death penalty is best following the development of
insight and the times. Such an arrangement implies that the RKUHP adheres to the
principle of flexibility/elasticity (Khasan, 2017).
Prof. Muladi provides the conditions for determining the types of crimes that need
to be sentenced to death (capital crimes) and the limitations of their application (Muladi,
Diah Sulistyani, & SH, 2021): a. Very serious crimes (the most serious crimes, ICCPR
1966); b. Intentional crimes with lethal or other extremely grave consequences,
(ECOSOC, 1984); c. Exceptions: political crimes, non-violent financial crimes, non-
violent religious practices (UN Commission on Human Rights, 1999); d. The ECOSOC
standard regulates the guidelines for imposing the death penalty and(Khasan, 2017)
emphasizes that: (1). The death penalty is only applied to very serious crimes with
deadly or very serious consequences; (2). The death penalty must have been regulated
at the time the act was committed; (3). Children under 18 years of age at the time of
committing a crime cannot be sentenced to death; the same goes for pregnant women or
new mothers and people who have gone insane; based on clear and convincing evidence;
(4). The final decision (Final judgment) made by the competent court based on the
principle of a fair trial (air trial) is not due to a misguided trial (Article 14 ICCP); (5).
The right to appeal is mandatory for the convict (The right to appeal is mandatory); (6).
The death penalty does not eliminate the convict's right to seek forgiveness or clemency
(The right to seek pardon); (7). The death penalty must be suspended if the case is
pending due to an appeal or there are other procedures in connection with clemency or
commutation;
Various countries varied (based on socio-cultural and political environment)
mentioned: crimes against humanity; murder; drug trafficking; terrorism; treason;
espionage; crimes against state security; political protest (Saudi Arabia); rape; economic
crime; kidnapping; separatism; adultery (some Middle Eastern countries); sodomy
(some Muslim countries); hudud, for example, Apostasy (some Islamic countries);
flashphemy (some Islamic countries); robbery by weighting and others is punishable by
death. In Article 52 of the RKUHP concerning the purpose of punishment, it is
formulated that a crime must not demean human dignity. This is in line with the
ECOSOC Res. 1984/50 which states that "when capital punishment occurs, it shall be
carried out to inflict the minimum possible suffering". So it can be interpreted that when
the death penalty decision is imposed, it must be imposed by applying the least suffering
to the convict (Turner, 2018).
CONCLUSION
Based on the description in the discussion of research on conditional capital
punishment in Indonesia, it can be concluded, among other things, that the formulation
policy in Indonesian criminal legislation still causes many problems in its execution. The
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problem of the uncertainty of the waiting period and the assumption that it does not provide
a deterrent effect is a problem that interferes with the sense of justice and legal certainty in
Indonesia. The conditional death penalty is also not regulated in the current criminal law
in Indonesia, and the regulation of capital punishment in the future Indonesian RKUHP
will take the "middle way" or the so-called "Indonesian Way" between the retentionist and
abolitionist state groups. The conditional death penalty is imposed using the principle of
balance as a limit of tolerance and legitimacy (margin of appreciation and legitimacy),
which originates from the Pancasila ideology, the 1945 Constitution of the Republic of
Indonesia, Human Rights & Human Obligations and general legal principles recognized
by civilized nations. . The imposition of a conditional death penalty is in accordance with
the principle of due process of law and to avoid extrajudicial killing, summary execution,
and killing without trial, which are gross violations of human rights. Then there is still a
need for guidelines for imposing the death penalty for judges, with an alternative to life
imprisonment or 20 years in prison. Regarding the total abolition of the death penalty, it is
very difficult to do in Indonesia, because its existence is inseparable from the social,
cultural, and religious values of each nation as well as from the history of the nation itself.
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