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Indonesia’s Supreme Court, President Commute Death Sentences for Drug Offenders

Earlier this year the Supreme Court of Indonesia vacated the death sentence of a convicted narcotics producer and distributor. In its place, the court handed Hengky Gunawan, who was arrested in 2007 for running a large ecstasy production operation, a 15-year sentence. The ruling, which was quietly made in April but made public earlier this month, has sparked curiosity and controversy concerning the retentionist country’s position on the death penalty. The Supreme Court’s ruling reportedly said that the death sentence was in violation of Article 28 of the Indonesian Constitution, which provides for rights to life and to remain free from torture that are “fundamental human rights that shall not be curtailed under any circumstance,” and Article 3 of the U.N. Universal Declaration of Human Rights.

“The judges considered the ruling to be against human rights,” court spokesman Joko Sarwoko told the Jakarta Globe. However, the spokesman also reportedly stated that the ruling did not represent a shift in the court’s opinion and should not be held as a precedent for future cases concerning drug offenses. According to the Indonesian Penal Code and laws, several drug offenses are punishable by death, including drug possession; the involvement in manufacturing or trafficking; involving children in production, trafficking or use of narcotics; and the abuse or possession of psychotropic drugs “in an organized manner.”

Shortly after the court issued its decision, President Susilo Bambang Yudhoyono commuted the death sentence of convicted drug mule Deni Setia Maharwa to life in prison. The president’s decision, while drawing criticism from politicians and anti-narcotics activists, was distinguished from that of the court by Justice and Human Rights Minister Amir Syamsuddin. Needing to support his family and pay off a car loan, Deni had agreed to carry 3.5 kilograms of heroin and 3 kilograms of cocaine to London. The president reportedly took those facts into consideration before commuting his sentence. Amir told the Jakarta Globe that the president would not have granted clemency to a major producer and distributor as the court did.

According to The Jakarta Post, Amir stated at a press conference on October 16 that the president has commuted the death sentences of three other inmates to life in prison since 2007. While Indonesia has not adopted the Second Optional Protocol to the ICCPR, it is possible that the Indonesian government is shifting its position concerning the death penalty in response to its efforts to prevent the executions of Indonesian migrant workers  who are currently on death row abroad. The last executions in Indonesia were carried out in 2010.