'Death Penalty' Ayu Pandini Maharani

DEATH PENALTY 

Name     : AYU   PANDINI   MAHARANI   
NIM      : 13222061
Class      : 2B
Course  :  ARGUMENTATIVE WRITING 
STKIP Garut



1.

Should the Death Penalty Be Allowed?

Standard Site

Death Penalty  

1,188 people were executed in the US from 1977 through 2009, primarily by means of lethal injection. Most death penalty cases involve the execution of murderers although capital punishment can also be applied for treason, espionage, and other crimes.

Proponents of the death penalty say it is an important tool for preserving law and order, deters crime, and costs less than life imprisonment. They argue that retribution or "an eye for an eye" honors the victim, helps console grieving families, and ensures that the perpetrators of heinous crimes never have an opportunity to cause future tragedy.

Opponents of capital punishment say it has no deterrent effect on crime, wrongly gives governments the power to take human life, and perpetuates social injustices by disproportionately targeting people of color (racist) and people who cannot afford good attorneys (classist). They say lifetime jail sentences are a more severe and less expensive punishment than death

2.

Every day, all over the world, people are executed by the state as punishment for a variety of crimes – sometimes for acts that should not be criminalized. In some countries it can be for who you sleep with, in others it is reserved for acts of terror and murder.

Some countries execute people who were under 18 years old when the crime was committed, others use the death penalty against people with mental disabilities. Before people die they are often imprisoned for years on “death row”. Not knowing when their time is up, or whether they will see their families one last time.

The death penalty is cruel, inhuman and degrading. Amnesty opposes the death penalty at all times - regardless of who is accused, the crime, guilt or innocence or method of execution.

We have been working to end executions since 1977, when only nine countries had abolished the death penalty. Today, that number has risen to 140 - nearly two-thirds of countries around the world.

We know that, together, we can end the death penalty everywhere. Hafez Ibrahim was about to be executed in Yemen in 2007 when he sent a mobile text message to Amnesty. It was a message that saved his life. “I owe my life to Amnesty. Now I dedicate that life to campaigning against the death penalty.”

Artwork on the wall of Abu Salim Prison in Tripoli, Libya. 15 March, 2014. © Amnesty International

The problem

Why the Death Penalty is wrong

Denial of human rights. Sentencing someone to death denies them the right to life – enshrined in the Universal Declaration of Human Rights.

Not irreversible and mistakes happen. Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, 150 US death row prisoners have been acquitted. For some the news came too late as they had already been executed.

Does not deter crime. Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than imprisonment.

    The death penalty is a symptom of a culture of violence, not a solution to it.

Often used within skewed justice systems. Some of the countries executing the most people have deeply unfair legal systems. The ‘top’ three executing countries – China, Iran and Iraq – all issue death sentences in murky and unclear circumstances. Many death sentences are issued after ‘confessions’ that have been obtained through torture.

Discriminatory. You are more likely to be sentenced to death if you are poor or belong to a racial, ethnic or religious minority because of discrimination in the justice system. Also, poor and marginalised groups have less access to the legal resources needed to defend themselves.

Used as a political tool. The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.

Amnesty is calling for

• Countries who still use the death penalty must immediately halt all executions.

• Countries who have already stopped executing people, need to take this punishment off their legal books, permanently.

• All death sentences should be changed to prison sentences

3.

Apostasy and Death Penalty

oleh Abd Moqsith Ghazali

Meanwhile, no single verse of Quran declare that apostates should be killed. Allah would certainly have included this important penalty in the Quran if he wanted it performed. In fact, Quran clearly guarantees freedom of religion. Jawdat Said observed that the above hadith is dla’if (weak), since it conflicts with the fundamental Islamic teaching: namely freedom of religion.

I heard that several Muslim leaders in Indonesia have been considering the possibility of enforcing death punishment upon Muslim who leave Islam and convert to other religion (apostate). In the past, the Melaka Empire/ Malacca Sultanate under Sultan Muzaffar Shah’s reign (1450-1458) prescribed death penalty for Muslim who commits apostasy based on Melaka Constitution: Undang-Undang Darat Melaka, Undang-Undang Melayu, Undang-Undang Negeri dan Pelayaran (Laws of Melaka, Malay Constitution, the Maritime Laws of Melaka). Article 36 of the constitution mentioned, “death penalty must be applied upon the apostate”. This exclusive view is based on a hadith (prophet Muhammad’s sayings) , "man baddala dinahu faqtuluhu" (Whoever changed his Islamic religion, then kill him.).

A question arises: is it possible to punish a Muslim who commit apostasy based on the above hadith? The answer is certainly not. Unlike the Melaka Empire which refers to the Islamic jurisprudence, the modern and democratic Indonesia is based on Pancasila and 1945 Constitution (UUD ’45), which guarantee the right to exercise freedom of religion in Indonesia. Anyone who convert religion is not a criminal and therefore not to be punished. Hence, prescribing death penalty upon Indonesian Muslim who commit apostasy violated the 1945 Constitution and UU RI No. 39/1999 on human rights which guarantee full freedom for every citizen whether to take or leave any religion.

Besides, the above hadith canot be simply used as justification, since it is doubtful from every aspects. Status of this hadith is ahad (which has been narrated by few people) instead of mutawaatir (which has been narrated by a number of people in every level of the chain such that it is impossible for all of them to make a mistake or error). Imam Abu Hanifah argued that dalalah or the meaning of hadith ahad is zhanni (non-definite or indecisive) instead of qath’I (conclusive or decisive). Khudlari Bik, an expert of principle of Islamic jurisprudence (ushul fiqh), explained that hadith ahad cannot abrogate the general verses of Quran. While the general verses of Quran is qathi, hadith ahad is zhanni therefore Tajuddin al-Subki in Jam`u al-Jawami argued that the zhanni cannot abrogate the qath`i.

Meanwhile, no single verse of Quran declare that apostates should be killed. Allah would certainly have included this important penalty in the Quran if he wanted it performed. In fact, Quran clearly guarantees freedom of religion. Jawdat Said observed that the above hadith is dla’if (weak), since it conflicts with the fundamental Islamic teaching: namely freedom of religion. Hence, the dalalah or justification of hadith is weak and therefore cannot abrogate the general principle of Quran which support freedom of religion.

Furthermore, Jamal al-Banna questioned about the integrity of the narrator of hadith. The chain of narration ended on Ikrimah, whose hadith narration often rejected by Imam Muslim. Imam Muslim quoted from ikrimah only a hadith on pilgrimage, which he narrated together with Sa’id bin Jubair. Sahih Muslim (Muslim’s hadith collection) did not mention hadith on death penalty for the apostate. It is reasonable because Ikrimah was known as a liar (kadzzab) among the experts of hadith. Doubt on the existence of hadits goes on, since the narrators including Ikrimah had never explained about sabab al wurud, or in which context and what for the Prophet stated that.

Apart from that, even if the hadith does really exist, history indicated that prophet Muhammad had never kill the apostates. Several classical literatures mentioned that in the days of prophet Muhammad, at least twelve Muslims reverted from Islam, like al-Harits bin Suwaid al-Anshari, and moved away from Medina to Mecca. Ubaidullah bin Jahsy, for instance, went to Habasyah where he converted to Christian and died as Christian. However, during his lifetime, the Prophet did not command his companions to chase them although they committed apostasy.

People who want to enforce death penalty for Muslim who commit apostasy do not realize the defects of the above hadith. Hopefully, as this explanation arrives before them, their eagerness to kill the apostate will be reduced.

Komentar Masuk (2 komentar)

Tulis Komentar

The Quran is (something the only perception of sheme process from Adam to Adam, Al Baqarah (2) v.30-39, to Al A'raaf (7) v.27, Ta Ha (20) v.117, and practiced all processed by Mohammad around the Kabah, sa'i, stay in Arafah, nightly in Musdalifah and throuwing stones at Ula, Wusta and Aqaba, according to Al Baqarah (2) v.125,158,189,196,197, Al 'Imran (3) v.96,96, Al Ma'idah (5)v. 97, Al Hajj (22) v.26,27 etc. indecated in Isra'il (17) v. 13,14,71,72, Al An'Am (6) v.7) in a book Al Baqarah (2) v.2, that the interpretaton will come in the later day here in the world.

So the Quran will be understood perfectly by God sending (to someone in Indonesia, Ha Mim Sajdah (41) v.44) the fulfilment of a book explaination day,according to Al A'raaf (7) ayat 52,53: And surely, We have brought them a great Book (skeme from Adam of formerly to Adam of to day) which We have expounded with knowledge (Al Mujadilah (58) v.6,18,22), and which is a guidance (Al Baqarah (2) v.4,5), and a mercy for a people who believe (to the explaination/enterpretationday). Do they wait for the fulfillment of that of which it warns? On the day when that fulfilment comes, those who had neglected it before (for 8000 years, especialy the people of Muhammad for more than 1400) will say: The Messengers of our Lord did indeed bring the truth. Have we then any interceccors(from Indonesia) who will intercede for us (all the people of the world)? Or, could we be sent back (from the begining (0) of knowledge of the Quran) that we might act differently from that which we used to do (during for more that 1400 years going to asttray?They have indeed ruined their souls and that which they used to fabricate has failed them (going astray).

Salom, Soegana Gandakoesoema, Reformer of the one perception of Religion of the 3rd millennium.

I hope you are the one of the fulfilment "The Liberal Moslem".

#1. Soegana Gandakoesoema, Pembaharu Persepsi Tunggal at 2008-08-05 06:08:49

The Quran should not be understood without recourse to ahadith - the ahadith elaborate and qualify verses, and as there are ahadith on apostasy, one cannot ignore them. The principle is to take both texts where possible, and if not, the weaker is rejected. Here the two texts can be reconciled, where religion can be followed by all, however when one enters Islam they should be aware they cannot leave it...

4.

Press Release

No: 05/DP/Elsam/X/08

Constitutional Court Verdict About Death Penalty

Trapped by the Formal Positivism Law

In the verdict read by constitutional judge committee lead by the chief of committee, Mahmud MD on its trial held in Jakarta, October 21st 2008, the Constitutional Court (MK) declined Amrozi, Muklas, and Imam Samudra�s objection toward the death sentence by gun riffle shot. MK (the constitutional court) stated, �there is no such a method of the death penalty which can guarantee no pain during its practice. All the death sentence methods have their inaccuracy risks causing pain�.

In their verdict, the constitutional court (MK) stated, �The death sentence procedure inIndonesiais based on Act No. 2/Pnps/1964 in accordance to the death sentence procedure which is applied as the special law that negates article 11 of criminal-law procedural code (KUHAP)�. Moreover, MK declared, �the Act which is used by general and military courts to conduct the death sentence is not against Article 281 subsection (1) of the constitution (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945).

In the middle of the pro and controversial discourse of the death sentence practice, the basic principle of fundamental respect toward the human right (HAM) should be the main guidance. The right to live is the right category that cannot be broken down, diminished, and limited under any circumstances, including formal regulation limitation. Furthermore, it has been clearly included in the constitution (UUD 45). MK, as the constitution practice defenders should have succeeded in fulfilling the constitution mandate by eradicating the death sentence practice. What is more, Indonesian law system, the death sentence is not an effective punishment to stop the crimes. Our law system has not guaranteed a fair trial yet, so there are still possibilities for temporal judicatures to happen particularly there are still many mistakes in law practices which caused by corruption, bureaucracy, discrimination, and class bias. On that context, the existence of the death sentence definitely cannot annul a judicial mistake made by the judges. On the other hand, there is no such an academic proof explains that the death sentence practice is effective to stop someone doing the crimes and able to reduce the number of crimes.

The verdict which views the death sentence practice is not against Article 281 subsection (1) of the constitution (UUD 1945) since its procedure is based on the Act No. 2/Pnps/ that considers it as a non-tortured practice is a verdict which has been trapped by the positivism formal law as it only views the accused party element which is torture. Whereas, Article 281 subsection (1) of UUD 1945 has firmly and clearly set up the people human rights as a fully united  frame which obviously affirms that the right to live is the primary right that must be protected by the country.

This verdict has obviously neglected the development of law as a knowledge and the act rule that has changed its paradigm as can be seen in the draft of Penal Code (RUU KUHP) that has considered the death sentence as a special and alternative penalty. The death sentence can be applied on parole by giving the defendant a trial period in which hopefully he/she can mend his/her attitude so the death sentence is not necessary anymore to be applied. In line with Rome Statue of the International Criminal Court, 1998 that will be ratified by the Indonesian government in this year 2008 does not support the death sentence. The penalties under the International Criminal Court mechanism only consists of a life sentence and maximal 30 years imprisonment for very serious crimes.

Besides, the death sentence is against the International human right law which firmly declared that the practice is against some principles in the International Civil and Political Rights-ICCPR.  The rights to live which is in Part III article 6 (1) states that every person has the rights to live and have the law protection and no one is able to take it. It is important to consider that some principle set in ICCPR has been the part of Indonesian national law, through Act (UU) No.12 2005 about civil and political covenant ratification.

This verdict is very ironic as it is not inline with the Indonesian constitution and philosophy which is also clearly and explicitly declared in decree of People�s Consultative Assembly (MPR) No.XVII/MPR/1998 that the nation�s view and stance toward the human rights are based on the religious value, universal moral, and the nation noble culture as also stated clearly in �Pancasila� that the human rights are the basic rights which is Godly valued, and universal as the God�s gift and function to protect human life, freedom, and the development of people and society which cannot be neglected, taken, and interfered by anyone.

Based on the above matters, keeping the death sentence practice in the positive law method is absolutely irresponsible work. Under the circumstances, the change of national law toward the eradication of the death sentence is a must. In addition the constitution has risen the admission of the rights to live that cannot be diminished under any circumstances, so its eradication in all law procedures is the constitutional duty. 

Jakarta, October 24th2008

Institute for Policy Research and Advocacy (ELSAM)

Indriaswati Diah Saptaningrum, S.H, LLM

Deputy Program Director Assistance

Contact: Indriaswati DS (0813 80305 728)

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5.

Constitutional tinkering

    Written by Blair A King              

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Category: Edition 65: Jan-Mar 2001         

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Blair A King

The vague nature of the 1945 Constitution (UUD 1945) contributed to the rise of authoritarian dictatorships under both Presidents Sukarno and Suharto. Constitutional reform was thus one of the basic demands of the student movement that overthrew Suharto in May 1998. The First and Second Amendments passed in October 1999 and August 2000 have only begun to address the fundamental issues of constitutional reform in Indonesia. Much of the more important work lies ahead.

Despite its drawbacks, the 1945 Constitution has remained the basic framework for the ongoing democratic transition in Indonesia. UUD 1945 places implementation of popular sovereignty in the People's Consultative Assembly (MPR). One of the primary functions of the MPR is to establish and amend the constitution.

In October 1999, the MPR decided to begin in 2000 to hold annual sessions, in order to amend the constitution, to pass decrees, and to evaluate the government's performance. The 2000 Annual Session convened on August 7 amid persistent talk of a confrontation between President Abdurrahman Wahid and the MPR. In the event, the rumoured impeachment did not take place. Behind these headline events, however, a large amount of work was done on other issues a few of which made news, most of which did not.

In Indonesia, as in many other countries, 'constitutional' issues are not just resolved in the formal constitution but also in other sources of law, such as MPR decrees and laws themselves. In late 1999, the MPR Working Body (Badan Pekerja) formed two subcommittees, one to address formal constitutional amendments and one to draft MPR decrees, following the mandate given by the 1999 MPR General Session.

The first subcommittee (Ad Hoc Committee I, or PAH I) aimed to amend the existing 1945 Constitution rather than draft an entirely new one. At the beginning of its deliberations, PAH I reaffirmed support for the existing preamble, the unitary state, and the presidential system.

Responsibility for drafting new decrees for debate at the MPR Annual Session rested with Ad Hoc Committee II (PAH II).

Between November 1999 and May 2000, these two subcommittees conducted numerous consultations. After the legislature reconvened in May 2000, PAH I conducted a detailed chapter-by-chapter review of the 1945 Constitution, which it completed at the end of June. PAH II considered about 20 possible subject areas and narrowed the list down to six topics for seven draft decrees, among them some on regional autonomy and the separation of the police (Polri) from the military (TNI).

The final subcommittee reports were agreed at the end of July and were transmitted via the full MPR Working Body to the Annual Session. This session referred the reports to its commissions, who then reported back to the plenary session on August 15. The MPR approved the new decrees and the Second Amendment on August 18, the 55th anniversary of the promulgation of the original Constitution in 1945.

The PAH I proposals included revisions to 16 of the chapters of the existing 1945 Constitution, and draft text for five new chapters. In the event, only seven of these 21 chapters were approved.

Slow

There appear to have been two main reasons for the slow progress: the first related to political positions, the second to procedural issues. The political cause of delay was the lack of any real consensus on the major structural issues of the constitution. Elements in the MPR that are more conservative on constitutional change wished to conduct the debate in what they called a slow and cautious manner. The conservative camp is led by the largest bloc, PDI-P, and the TNI/ Polri bloc. Together these two blocs control 223 of the 695 MPR seats, nearly the 232 votes needed to block constitutional amendments. Both blocs argue that UUD 1945 is an 'inheritance of the nation's founding fathers' that should not be radically amended. Many of the other major parties say that, in the end, 'slow and cautious' may mean little significant reform at all. As compromises negotiated in PAH I broke down, debate started over again in Commission A. This led to procedural arguments as well.

Despite the difficulties, amended text was agreed for five chapters of the constitution: on regional authorities, the People's Representative Assembly (DPR), citizens and residents, defence and security, and national symbols. In addition, two new chapters, on human rights and on national territory, were agreed.

The constitutional amendments contained in the Second Amendment and several of the MPR decrees passed at the 2000 Annual Session can be divided into four themes: (1) civil-military relations, (2) the separation of powers and checks and balances, (3) the decentralisation of power to the regions, and (4) a bill of rights. Each of these themes contains important changes to the Indonesian political system.

The military was the backbone of the authoritarian New Order political system. Ending its role in domestic politics has been an important facet of the democratic transition. The 2000 MPR Annual Session represented one of the first opportunities for civilian politicians to address the military's role in politics on an institutional level. The results are mixed, but the MPR has laid a legal foundation on which the DPR can now build democratic, civilian control over the military in Indonesia. This foundation includes drawing the distinction between external defence, as the responsibility of TNI, and internal security, law enforcement and maintenance of public order, as the responsibility of Polri. It also includes requirements that presidential decisions to appoint and dismiss the TNI commander and Polri chief be approved by the DPR. Finally, the police will be fully subject and the military partially subject (for ordinary criminal cases) to the civilian judicial system. The previously all-encompassing military judicial system will now only handle breaches of the military legal code. The challenge now will be to pass laws and regulations that fully reflect these important changes, and then to implement the new system.

The main points of concern are the decision to extend the TNI/ Polri bloc's existence in the MPR until 2009, and the inclusion of the 'total people's defence system' (sishankamrata) doctrine in the constitution.

One of the primary weaknesses of the 1945 Constitution is the lack of clarity concerning one of the fundamental dimensions of any democratic system: is it presidential or parliamentary? Since the greater weight is on the presidential side, perhaps it is appropriate to call it 'presidential with parliamentary characteristics'. This MPR session endorsed the basically presidential nature of the system. At the same time, the MPR and DPR wish to restrict the formerly unchecked powers of the presidency. One of the challenges is that UUD 1945 does not recognise the separation of powers and checks and balances among the executive, legislative and judicial branches that is such an important part of a presidential system. On the whole, the amendments and decrees passed in August 2000 have helped to strengthen these principles, although they have not fully resolved the issue.

The New Order was a highly centralised political and economic system. Decentralisation of power was thus one of the central demands of the reform movement in 1998, and after Suharto resigned many regions began voicing their discontent. The transitional administration of President B J Habibie responded with a policy of 'wide-ranging regional autonomy'.

Despite concessions by the centre (Laws 22 and 25 of 1999), many regions remained dissatisfied that regional autonomy was based only in laws that were in essence a 'gift' from the centre that could be rescinded at any time. Thus pressure continued for the decentralisation of power to the regions to be enshrined in the constitution, making it harder to reverse in the future. Through the amendment to chapter VI of UUD 1945, the general spirit of Laws 22 and 25 is now reflected in the constitution. A strongly regional flavour is given by the principle that regions may act on any subject that is not reserved by law to the central government. The primary challenge remains the implementation of these laws, in a context of resistance from line ministries in Jakarta, poor human resources in local bureaucracies, and little tradition of government accountability to elected bodies at any level.

Human rights

The original 1945 Constitution contained few guarantees of civil and political rights. It more often referred to citizens' responsibilities to the state. It is thus quite significant that a substantial new chapter on human rights has been added to the constitution as part of the Second Amendment. The provisions of the new chapter XA of UUD 1945 on human rights have proven controversial, despite having been substantially drawn from the Universal Declaration on Human Rights (UDHR). In particular, the clause prohibiting prosecutions under retrospective legislation originates from Article 11(2) of the UDHR. The juxtaposition of international human rights standards and the calls for justice for past human rights violations by the military and police has created a dilemma for Indonesian and international human rights activists. However, the controversy surrounding this clause has largely died down in the months following the annual session. Indeed on November 6 the DPR passed a law establishing human rights courts across the country that are based in the current criminal code, thus avoiding the retrospective problem.

Some of the material that was not agreed at this MPR session was fairly routine, but some has proven highly controversial, relating to the basic structure of state institutions. These chapters include the form and sovereignty of the state, the structure and role of the MPR, executive powers (including the method of election of the president and vice president), the possible creation of an upper chamber representing regional interests (Dewan Perwakilan Daerah or DPD), and the procedures for constitutional amendment.

The MPR has decided to use the remaining material prepared by PAH I as the basis for a continuing constitutional debate, scheduled to take place between now and August 2002. This is the latest annual session at which it will be possible to pass major changes to the structure of state institutions with enough lead time to conduct elections under the new arrangements in 2004.

Many MPR members at the 2000 Annual Session may have felt that fundamental decisions on structural issues should not be finalised in an atmosphere of high tension over the relationship between the current president and the current legislature. Whether the atmosphere will be more conducive to debate on these issues in 2001, or 2002, is not yet known. However, the additional time available does create a very important opportunity for wider public debate.

Blair A King (baking@lycos.com) is a PhD candidate in political science at Ohio State University. In 1999 and 2000, he worked at the Jakarta office of the National Democratic Institute for International Affairs (NDI). This article is drawn from a study he co-authored for NDI (' Indonesia's bumpy road to constitutional reform', see www.ndi.org)

Inside Indonesia 65: Jan - Mar 2001


(PRO SATEMENT)