Sunday, July 10, 2011 23:52 PM
Frans H. Winarta and Colin McDonald QC, Jakarta
Indonesians were shocked and appalled by the beheading of fellow citizen Ruyati binti Satubi in Saudi Arabia on June 18, 2011. The execution again highlighted the use and efficiency of the death penalty as criminal punishment.
The facts surrounding Ruyati’s execution beg for a principled and measured response, beyond diplomatic protests.
Ruyati was a poor, hard-working 54-year-old housemaid who went to Saudi Arabia to save money for her family. As a domestic worker employed overseas she was vulnerable. According to reports, she killed the wife of her Saudi employer in circumstances of self defense.
Other reports suggested Ruyati was often abused by her employer. Her case passed through the Appeal Court and the Supreme Court in Saudi Arabia. It appears the death penalty was sought and justified by Qishas (on the principle of “an eye for an eye”).
The Saudi decision has come in for trenchant criticism by Indonesian legal experts, who point out that Qishas only applies when the act of killing is accompanied by an “ill intention”. Qishas does not apply in circumstances of self defense. There was strong criticism of the Saudi courts, which experts said should have taken the motive into account as required by Sharia law.
The justification of criminal punishment is the protection of society. How did the execution of Ruyati better protect Saudi Arabia? Is the world a better place for the execution of Ruyati? Why were the reported circumstances of self-defense and motive not considered and accorded due weight?
Leaving aside the issues of curial and legal error, the circumstances of Ruyati’s case called out for clemency — but none was given. Worse, it emerged that neither Ruyati’s family nor the Indonesian government was accorded the usual and important advance consular notice. The tragic result is that the family did not have notice to seek clemency, nor did the Indonesian government have the opportunity to seek clemency or make appropriate political representations.
With more than 900,000 Indonesian citizens working in Saudi Arabia, there is a lot at stake for Indonesia. The stakes are even higher given the fact that more than 26 Indonesian citizens are currently on death row there and with more than 216 Indonesian citizens face execution in other countries.
Indonesia has an excellent and highly professional Foreign Ministry, which is one of the best in the world. Had proper notice been given, ministry officials could and would have done all their utmost to protect a fellow citizen. In a democracy, the most important office is the citizen.
The tragedy of Ruyati’s execution and the apparent failure to accord Indonesia the usual diplomatic privileges calls for a principled and measured response. The protection of Indonesian citizens begs such a measured and mature response by a new democracy.
If the foreign minister’s claim that Indonesia was not given prior warning of Ruyati’s execution is true, Indonesia has an option to file the case with the International Court of Justice to have the Vienna Convention on Consular Relations upheld. In taking such action, Indonesia can lawfully, respectfully but determinedly make a statement to the world that Indonesia has an abiding concern to protect the lives of its citizens.
The taking of legal proceedings is both reasonable and appropriate under such circumstances.
There is ample legal precedent that nations must respect their consular obligations where there are foreign citizens facing the death penalty within their jurisdiction.
The execution of Ruyati once again highlights the problems for countries that retain the death penalty, including Indonesia. The world trend is clearly toward the abolition of capital punishment.
A decisive majority of countries has abolished the death penalty in law or in practice.
On Dec. 18, 2010, the United Nations General Assembly voted overwhelmingly in favor of a moratorium in respect for the use of death penalty. Had there been a worldwide moratorium, Ruyati and the lives of other Indonesian citizens on death row could have been saved.
The time has come for Indonesia to ask itself whether it is really worth keeping the death penalty as a criminal punishment.
There is a range of factors that suggest it is now in Indonesia’s interests to abolish or at least have a moratorium on the use of the death penalty.
Experience and statistics from around the world indicate that the death penalty is no a greater deterrent then lengthy prison terms.
The retention of the death penalty hinders the Indonesian National Police in its efforts to combat serious transnational crimes. We saw this when Dutch police were prevented from assisting the Indonesian police in the death of human rights activist Munir, because successful prosecution could have led to the death penalty in Indonesia.
Diplomatic relations are predictably and unnecessarily strained when a citizen from a state that has abolished the death penalty receives the death penalty. With the majority of the world’s countries being abolitionist, Indonesia’s diplomatic and economic interests are at stake.
The Indonesian Constitutional Court on Oct. 30, 2007 recommended that the death penalty be used sparingly and that condemned prisoners have the chance to have their sentences commuted to prison terms for proven good behavior over 10 years.
The recommendations of one of Indonesia’s two apex courts are sound and are brought into poignant perspective by the execution of Ruyati.
One way of testing where the practical best interests of Indonesia lie is to have a moratorium on the use of the death penalty and implement in legislation the recommendations of the Constitutional Court.
This would signal a commitment not only to Indonesian citizens
and be respectful the deeply held values of neighboring states, but also would implement the jurisprudence of the Indonesian Constitutional Court.
The horrible death of Ruyati and the grief of her family should not be entirely in vain. Let there be action and principled leadership.
Moreover, Indonesia follows the Pancasila, one of whose principles is just and civilized humanity, so death penalties based on retaliation are no longer appropriate.
If it is to be an “eye for an eye and a tooth for a tooth” this will soon be a blind and toothless world.
Frans H. Winarta is a lawyer. Colin McDonald QC is a counsel and adviser to the Indonesian Foreign Ministry and Indonesian citizens in Australia for more than 20 years.
( this article reprinted from the Jak Pos)
zo 10 jul 2011 - 17:01