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Common sense of the death penalty
âWe would not permit the death penalty for criminals, but allow the murder of thousands innocents
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'We would not permit the death penalty for criminals, but allow the murder of thousands innocents.'
Maybe those are the perfect words to capture President Joko 'Jokowi' Widodo's response to such modern-day public opinions abroad in regards to the execution of eight death row inmates earlier this week.
President Jokowi in one of his media interview asked the press to expose more on the victims of drug trafficking rather than capitalizing on sympathy of those who had poisoned thousands of members of Indonesia's young generations.
Although the executions have been widely opposed abroad, most people in Indonesia are seemingly OK with capital punishment, arguing that it is a matter of sovereignty and is guaranteed by its respective law.
The classic debate between pros and cons has come back to the fore. The opposite side brings along strong arguments on human rights, miscarriage of justice, as well as international trends on abolitionism and discrimination. The other side takes its tough position on sovereignty, retribution, justice, due process of law and law enforcement.
At this point, the sanity of our prejudice is once again tested. It will lead to a question of which way our common sense will guide us.
There are at least three senses that can help us to respond to the question.
First is the sense of diversity. In a world where forms of difference are commonly accepted and dialogue between very different nations is essential, it is important to uphold the respect for difference.
Be it abolitionist or retentionist, this is part of these differences. And most people agree that both sides have their standpoints, values and arguments and that neither abolitionist nor retentionist is on the losing or wrong side of the road.
According to the Lowy Institute, in a country that has already abolished capital punishment, like Australia, more than 30 percent of its people say the executions of Australian nationals Andrew Chan and Myuran Sukumaran should have gone ahead and 26 percent of Australians believe that the death penalty should apply to drug traffickers.
It showed us that even in an abolitionist country, there are still dissenting voices of retentionism.
Second is the legal sense. The fact that the death penalty is still considered part of positive law both nationally or internationally has provided states with the right to enforce the death penalty in accordance with their national interests.
The International Covenant on Civil and Political Rights (ICCPR), of which Indonesia is a party, permits the use of the death penalty in limited circumstances.
Article 6 of the ICCPR states that the sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and can only be carried out pursuant to a final judgement rendered by a competent court.
As for Indonesia, the death penalty remains part of ius contitutum and can only be applied with respect to a court's decision.
Third is the sense of protection of the common good. The state has the right to apply the death penalty for serious crimes because it must protect the common good.
Common sense sometimes says that if we are to consistently defend the right to life, we must oppose capital punishment. But, by supporting common rights to use capital punishment in certain cases, we are actually continuing to defend innocent life, protecting the common good from grave crimes.
Theodore Roosevelt once said that in regard to capital punishment, the trouble is that emotional men and women always see only the individual whose fate is up at the moment, and neither his victim nor the many millions of unknown individuals who would in the long run be harmed by what they ask.
Indeed, the decision to use the death penalty is serious and must not be lightly imposed. But the state does have the right to use the death penalty as the ultimate punishment and last resort.
In the end, if our common sense leads us to what we call active controversy and debatable territory, we need to rely more on our own wisdom.
It is up to the government and wisdom of its nation to determine what is right for them. As for now, Indonesia under President Jokowi strongly believes that the reinstated death penalty is the right decision to address the severe drug problem in Indonesia.
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The writer, who holds a doctoral degree of law from Padjadjaran University, Bandung, is the author of Opinio Juris: 2011-2014.
