Death penalty debate needs victims' voices

Nurrohman ,  Bandung   |  Fri, 08/08/2008 10:27 AM  |  Opinion

Every time the death penalty is to be carried out, there is a debate on capital punishment. Amrozi, Imam Samudra and Ali Ghufron, were sentenced to death for masterminding and carrying out the 2002 Bali bombing, killing 202 people. They will probably be executed before Ramadhan, which begins in early September.

Domestic and international rights groups have persistently demanded abolition of the death penalty, arguing there is no evidence capital punishment deters crimes. Death penalty supporters demand its extension to corruptors.

But have we thought about the views of the victims of the crimes?

The father of one of the Australians killed in 2002 Bali bombing, Brian Deegan, joined the call for clemency for the trio, saying the death penalty did "no good, only harm". But not all the victim's families agree. Parents, children, wives and friends of Australians killed in the first Bali bombing may not be as forgiving as Deegan. For many of them, the trio deserve the death penalty, as an example of punitive justice.

In criminal justice there is a theory known as restorative justice. Restorative justice is a theory of criminal justice that focuses on crime as an act against another individual or community, rather than against the state. Restorative resolution engages those who are harmed, wrongdoers and affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships.

In criminal cases, victims have an opportunity to express the full impact of the crime upon their lives. Victims play a major role in the process and may receive some type of restitution from the offender. In criminal cases, types of compensation may include, but are not limited to: Money, community service in general, community service specific to the deed, self-education to prevent recidivism, and/or expressions of remorse.

Restorative justice and efforts to eliminate or at least to minimize use of the death penalty have recently gained more public support and may also fit better with sharia criminal code penalties. Therefore except for extraordinary cases, ideally the death penalty should be abolished.

The question do the trio deserve an alternative penalty to the death penalty? Unfortunately, not, at least not in my mind. Allow me to explain my stand. It is correct that life and death are in the hand of God, the creator of life. No institution has the right to kill others for whatever reason. Human life is considered to be so sacred that one man's murder is considered to be the murder of all the human race , and whoever saves a life it is as if he had saved the lives of all mankind (Q.5:32).

So it is the duty of human beings to avoid homicide. But when a murder occurs, what is the just sentence that can be imposed on the murderer who has stolen the right of God? It is God (the Koran) who gives options to Muslims in facing this dilemma.

The first option is the law of equality (qisas). During the jahiliyah (ignorance) period before Islam, the Arabs were prone to take revenge even if the crime was done centuries before. If a member of their clan or tribe was killed by a member of another clan, the revenge was taken by killing any person from the offending clan, even though this person was actually innocent and not involved in any killing. When the Koran came, it shifted the focus away from random or revenge killing.

The injunctions on qisas in the Koran are based on the principles of strict justice and equality of the value of human life. So it should be applied to the killer only and cannot be applied to the innocent person. Beside qisas there is also possible remission and compensation.

If remission is made by the brother of the slain it is the obligation of the murderer to grant any reasonable demand and compensation to the relative of the murdered, accompanied with handsome gratitude.

This means that compared to random killing, the qisas law is better, but there is another better option ; compensation and reconciliation between victims and offenders. That is what I mean by restorative justice. But any change of penalty should be arrived at by taking into account the views of the victims.

Back to the Amrozi case, do they deserve to be forgiven and that their lived be spared?

While restorative justice accompanied by an effort to abolish the death penalty gets wide international support, in the Amrozi case it is difficult to apply this. Why? Because they express no remorse for their actions. It is true that the constitution gives the president the right to pardon convicts who are sentenced to death, but these murderers have refused to seek presidential clemency, on the grounds that would require them to admit they did something wrong. (The Jakarta Post July 22, 2008).

It is possible state executions may make them martyrs as feared by Bramantyo Prijosusilo. (The Jakarta Post, July 25 , 2008). This may be so in the eyes of their followers, but the proportion of Muslims who see their act as part of jihad is very small. A recent survey of pesentren leaders in West Java by the Malindo Institute for social research shows that only 3 percent of those surveyed agreed that what Amrozi did was part of jihad.

So if they are to be finally executed, it is actually more in compliance with the sense of justice among the majority of their victims.

The writer is lecturer at the school of sharia and law in the Bandung State Islamic University (UIN).

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