Right: Indonesians march and protest against the execution by beheading of one of the country's citizens in Saudi Arabia.
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Arguments against the execution of foreign nationals convicted of drug smuggling in Indonesia
1. The extent of the Indonesian drug problem has been exaggerated
It has been claimed that Indonesia has overstated the extent of its drugs crisis in its justification of imposing the death penalty on drug traffickers.
In an opinion piece published in The Conversation on February 5, 2015, Claudia Stoicescu, PhD Candidate in Social Intervention at the University of Oxford, stated, 'Indonesian President Joko Widodo's claim of a national drug "emergency" that necessitates the death penalty for drug crimes is based on questionable statistics.'
Stoicescu went on to claim, 'The figures quoted by the president and parroted by national officials and media outlets are based on studies with questionable methods and vague measures.
Government advisers cherry-picked the figures to lend credibility to a "national emergency" and ultimately justify an ineffective but politically convenient policy.'
Stoicescu has examined the key claims made in relation to Indonesia's drug emergency and finds them questionable. She states, 'The 40 to 50 young people said to be dying each day because of drug use is ... problematic. These figures come from [a] seven-year-old study by the Centre for Health Research and BNN...
To determine the rate of drug deaths in the general population, the researchers surveyed 2,143 people selected from population groups such as students, workers and general households. They asked how many of their friends use drugs, and among these, how many of their friends died "because of drugs" in the last year before the survey...
Since Indonesia does not collect reliable statistics on drug overdose, it is not clear what "dying because of drugs" means in the context of this survey.'
Scepticism about the quality of the data Indonesian authorities are using to claim that a drug crisis exists has been expressed within Indonesia itself.
Mr Haris Azhar, coordinator for human rights group Kontras, has stated, 'Talk about a drugs emergency is cheap - can we see actual proof of this? The authorities need to justify data they keep repeating.'
2. Capital punishment is not an effective deterrent
Opponents of capital punishment generally argue that it does not act as an effective deterrent to bring about the prevention of crime as most criminals either act spontaneously or do not believe they will be caught and punished.
John Ryan, the chief executive officer of the drug research and advocacy organisation The Pennington Institute has stated, 'The scale of people who get caught drug trafficking and the scale of the drug market proves most people think they will get away with it and are prepared to play Russian roulette.'
Jeffrey Fagan, Professor of Law and Public Health at Columbia University, has argued that drug offenders are prone to 'hyperdiscounting'. Professor Fagan has stated, 'Their reasoning in the face of threats of harsh punishment is skewed.'
A study of the experience of Singapore, Malaysia and Indonesia between 1999 and 2005, a time when Singapore and Malaysia were executing heavily and Indonesia was not, shows that drugs were significant cheaper in Singapore and Malaysia, indicating that despite the death penalty drugs were in ready supply, Further, drug use remained more prevalent in Singapore than Indonesia.
Professor Fagan has stated, 'During this era [1999 to 2005], 73 persons were executed in Singapore [including more than half who were drug offenders], compared to two in Indonesia. Yet drug trafficking was increasing and drug prices were lower in Singapore.'
It has also been claimed that capital punishment will not act as an effective deterrent because it is not being applied to the key figures in the drug trade.
Dave McRae, a senior research fellow at the University of Melbourne, has suggested that the focus of a counter-narcotics strategy should be on high-level members of drug syndicates.
McRae has claimed of those facing death in Indonesia, 'On face value they look like couriers or lower-level players. It is difficult to imagine high-level members of drug syndicates would be in direct possession of narcotics.'
3. The Indonesian criminal justice system is corrupt
It has been argued that the Indonesian criminal justice system is corrupt and therefore not an appropriate agency to determine whether individuals live or die.
Numerous instances have been cited of individuals charged and convicted of capital offences whose cases were distorted by official corruption.
In an opinion piece published in The Conversation on February 16, 2015, Asmin Fransiska
Lecturer in Human Rights at Atma Jaya Catholic University of Indonesia refers to another of such instances.
For example, in 2013, a European national was arrested for drug offences. During police investigations, he was assisted by at least three different lawyers, all of whom only had interest in his money. The lawyers extorted money from him.
From the investigations up to the court hearings, the defendant was not assisted with a proper legal defence. The court sentenced him to death without him having meaningful legal assistance.
Asmin Fransiska concludes, '[T]hat these cases exist and human lives are at stake in the face of corruption and unfair trials means that a closer examination of all death penalty cases in Indonesia is a must.'
Corruption has been alleged in the cases of Andrew Chan and Myuran Sukumaran. A former lawyer of Andrew Chan and Myuran Sukumaran has outlined explosive allegations of corruption by the judges that sentenced the Bali nine duo to death, saying they asked for more than $130,000 to give them a prison term of less than 20 years.
Bali-based attorney Muhammad Rifan has claimed that a deal fell through after the judges later told him they had been ordered by senior legal and government members in Jakarta to impose a death penalty.
The judges, it is alleged, then asked for an even greater sum for a lighter sentence, money Mr Rifan did not have. Australia's Foreign Affairs Minister, Julie Bishop, has stated that such allegations 'call into doubt the integrity of the process.'
4. Indonesia's position on capital punishment is inconsistent
It has been argued that Indonesia's position on capital punishment is inconsistent.
The Indonesian government campaigns vigorously to have the sentences of its citizens facing execution overseas commuted.
On February 23, 2015, Matt O'Neill of the ABC's Late Night Live explained, 'This is partly because many of those condemned to death row in countries such as Saudi Arabia and Malaysia are housemaids who have been charged with murdering their abusive employers. Such cases have attracted considerable interest and sympathy back home.;
O'Neill further noted that the Indonesian government also defends its citizens charged with offences similar to those of which Andrew Chan and Myuran Sukumaran have been convicted.
O'Neill stated, 'However, there are also Indonesian drug smugglers facing capital punishment overseas, and Indonesia's recently elected president Joko Widodo has been working hard to save them from execution as well.'
There are those who have suggested that Joko Widodo is seeking political advantage in both situations.
In an opinion piece published in The Conversation on March 11, 2015, Barry Jones, Professorial Fellow at University of Melbourne, stated, 'Jokowi is seen as pursuing populism to strengthen his position with the legislature: It is popular to save Indonesians from execution in foreign jurisdictions;It is popular to execute foreigners in Indonesia.'
It is claimed that the inconsistencies in the Indonesian position indicate that neither the positions taken in support of capital punishment or against are taken as a matter of principle. Rather, it is claimed, these positions have been adopted by the President because he believes they will give him a political advantage.
5. Indonesia is in breach of international law
It has been repeatedly argued that Indonesia's imposition of the death penalty for drug trafficking is at odds with its obligations under international law.
In an opinion piece published in The Age on February 18, 2015, Donald Rothwell stated, 'Irrespective of what Indonesian law may say on the matter, and irrespective of the imposition of the death penalty in some countries for the most serious categories of murder, the imposition of capital punishment for drug crimes is not permissible under international law to which Indonesia is subject.'
The 1966 International Covenant on Civil and Political Rights, which Indonesia joined in 2006, is the most significant treaty. Article 6 (2) states: "In countries which have not abolished the death penalty, 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."
Indonesian authorities argue that each jurisdiction is entitled to determine what it regards as the 'most serious crimes'; however, various authorities contend that there is no freedom for wide interpretation.
In 1982 the United Nations Human Rights Committee emphasised that the right to life is not to be interpreted narrowly. With particular reference to the death penalty, the committee emphasised once more that states 'are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes'. The expression 'most serious crimes' was 'restrictively to mean that the death penalty should be a quite exceptional measure'.
It has been vigorously disputed as to whether drug trafficking can be regarded as a 'most serious crime' under these terms.
It has also been noted that the cavalier manner in which appeals for clemency have been rejected is also contrary to Indonesia's international obligations.
In an opinion piece published in The Conversation on February 16, 2015, Asmin Fransiska, Lecturer in Human Rights at Atma Jaya Catholic University of Indonesia stated, 'Jokowi's blanket rejection is a blatant violation of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a state party. It states that "anyone sentenced to death shall have the right to seek pardon or commutation of the sentence".' On December 9, 2015, President Joko Widodo said he would not give clemency to 64 narcotics convicts on death row. The President had stated, 'There's no forgiveness for drug dealers.' Critics have claimed that Andrew Chan and Myuran Sukumaran's clemency appeals were never given due consideration.