Clemency sign of presidential power Daniel Pascoe  ;  Assistant professor at the School of Law, City University of Hong Kong; He conducts comparative research on the death penalty in Southeast Asia, among other topics

JAKARTA POST, 30 Januari 2015

                                                                                                                                     

                                                

In recent speeches, President Joko “Jokowi” Widodo has stated that he will reject the clemency petitions for all drug traffickers on death row. So far, Jokowi has done so in around 25 cases, with additional petitions already having been rejected by previous Indonesian presidents. Unless they are able to file for a ‘judicial review’ at the Supreme Court for a first or second time, these prisoners now face execution. However, irrespective of whether you agree with the death penalty in principle or not, the President’s approach to the clemency appeals of death row convicts is at best misguided and at worst contrary to international legal principles. Clemency should be considered on a case-by-case basis for every single prisoner on death row, whether convicted for drug trafficking or for any other crime. The reason that President Jokowi has stated that he will reject clemency for all 57 prisoners sentenced to death for drug trafficking (excluding the six prisoners already put to death on 18 January), is the belief that minimizing clemency grants maximizes the deterrent effect of the death penalty. However, there is little to no evidence that the use of the death penalty deters drug crime any more effectively than the threat of long-term imprisonment does. Supporters of the death penalty for drug trafficking may point to falling rates of drug addiction in a retentionist country like Singapore, yet in social science studies, finding a control sample is impossible: we cannot be sure of what Singapore would have looked like if it had not applied the death penalty for drug trafficking so liberally in the 1990s. Is it the death penalty, or is it demographic factors that have reduced rates of drug addiction? Moreover, seizures of illegal drugs have actually increased in Singapore in recent years, despite the mandatory death penalty there. Even if the logic of strong deterrence remains intuitively attractive to legislators and law enforcement authorities, decisions by drug “mules” to import or export narcotics are not made by rationally weighing the costs and benefits of breaking the law – especially when the costs of trial and punishment are a temporally distant proposition for persons drawn to smuggling drugs for immediate financial reward. Criminologists believe that deterrence is best achieved by increasing the detection rates of crimes rather than increasing the harshness of punishments (from life imprisonment to death, for example). So if there is no evidence that a blanket denial of clemency requests will lead to a future reduction of drug trafficking in Indonesia, what then are the uses of clemency in death penalty cases? First, President Jokowi may believe that using his prerogative to grant clemency will cast him as a weak leader in the eyes of his political opponents and the Indonesian public. However, the historical role of the clemency power suggests otherwise. By granting clemency in appropriate cases, a nation’s leader may actually enhance his power vis-a-vis the other institutions of government. In a liberal-democratic state it is the legislature’s responsibility to enact laws, the judiciary’s responsibility to interpret those laws and the executive’s responsibility to enforce the law, and to exercise the lenient discretion not to enforce it in appropriate cases. Each branch of government wields its own power but also checks the powers of the other two branches. Clemency operates as one of the executive’s checks against the legislature and judiciary, and the use of the power in appropriate cases can be a sign of strength: a sign that a strong leader is setting his own agenda rather than being dictated to by rival sources of political and state power. Second, the power to grant clemency is particularly important in death penalty cases as an additional safeguard against wrongful conviction and therefore wrongful execution. All systems of criminal justice, including Indonesia’s, are imperfect institutions. If there exist even the smallest doubts over the fairness of the prisoner’s trial and the correctness of the conviction, together with the proportionality of the punishment administered in relation to similar cases, clemency is the appropriate solution. Third and finally, the incentive to receive clemency gives prisoners reasons to rehabilitate and reform themselves while on death row. Not only would granting clemency in appropriate death penalty cases be the humane thing to do, but it would also assist the state in controlling the prison population, as the hope for clemency gives inmates sentenced to death a purpose to live and to spend their time productively. Clemency may also be granted on compassionate grounds, to take into account the deterioration of a prisoner’s mental or physical health on death row, in cases where the person who was sentenced to death is not the same person who faces execution many years later. These are among the reasons why the power to grant clemency is found in nearly every written constitution in the world, as well as in international treaties such as the International Covenant on Civil and Political Rights, which Indonesia became a party to in 1996. Article 6(2) of the ICCPR states that: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” By seemingly rejecting all pending and future petitions in drug trafficking cases without consideration of the individual circumstances, President Jokowi is contravening Indonesia’s binding obligations under international law. Jokowi’s predecessor, Susilo Bambang Yudhoyono, granted clemency to 19 drug convicts from 128 petitions over the period 2004 to 2011. Some of the convicts in this group displayed mitigating circumstances, such as youth or disability or mental deterioration in prison, whereas others (including four prisoners sentenced to death whose sentences were commuted to life in prison) may have been granted clemency in order to promote leniency to the many Indonesians sentenced to death abroad, in countries like Saudi Arabia, China and Malaysia. Regardless of what you think about the merits of the death penalty, it is commendable that Yudhoyono and his advisers clearly took each clemency application seriously and considered the prisoner’s individual characteristics, together with the interests of Indonesian nationals facing execution abroad, in making their rulings. With those petitions that he has not yet ruled upon, President Jokowi should do the same. ●