This is not the first time that it happened. In other cases that captured the public’s attention, such as the rape of 13 Islamic female boarding school students in Bandung by defendant Herry Wirawan, and mega corruption cases that implicated defendants Heru Hidayat and Benny Tjokro, the death penalty has been either requested or given. However, we all know that in the bid to stamp out corruption, there has been no significant improvement in the governance system that will prevent a repeat of similar cases.
The author believes that death penalty is not and will never be a solution to deter crime. The deterrent effect brought by capital punishment, for example in narcotics cases, is difficult to prove. The majority of death penalty verdicts in Indonesia are awarded to drug traffickers. According to ICJR, this figure has increased significantly since 2015; thus, there is no data showing that a drug trafficking trend has declined. On the other hand, in many countries, such as the EU it has been proven that sexual violence, corruption, narcotics and other crimes can be prevented or curtailed without the need for the death penalty. The EU charter requires its members to abolish the death penalty from their legal system.
Death penalty commutation in the new Penal Code
Indonesia recently passed a new Penal Code (KUHP) through Law 1/2023 ratified on January 2, 2023. But it will only take effect in three years’ time or to be exact on January 2, 2026. Article 1.2 of the old Penal Code, which is still valid, stipulates that “In case of alteration in the legislation after the date of commission of the act, the most favourable provisions for the accused shall apply.” This means that in the intervening years before the new Penal Code takes effect, the old or new law can be applied to the perpetrator, but the lesser punishment must be chosen based on mitigating circumstances which, according to Soesilo (1995) includes parts/elements of the crime, type of offense (whether or not it is an offence warranting complaint), degrees of guilt, and so on.
The death penalty provision in the new Penal Code is more “favorable” to the accused, because it is no longer categorized as a principal punishment but rather as a special punishment. It automatically comes with a 10-year probation period after which it can be commuted (revised) to life imprisonment, based on the assessment results.
In Ferdy Sambo’s case, as the death sentence was given after the passage of the new Penal Code, the more mitigating provision will apply. This means that after his verdict has been declared inkracht, his execution must be suspended for 10 years before a commutation assessment is conducted. This provision also applies to all other convicts on death row. And for those who have been on the death row for more than 10 years, an assessment must be carried out immediately to determine whether their sentence can be commuted.
Alarm for police reform
Ferdy Sambo’s case reveals fundamental problems within the police force that must be brought to our attention and rectified immediately, namely a culture of violence, a lack of accountability, to patterns of criminal acts involving superior-subordinate power relations that stem from a flawed educational system. When the response given is only focused on severely punishing the perpetrators by imposing the death penalty, this shifts our attention away from solving the actual problem, one that is more critical, namely police reform.
The Kanjuruhan (Football Stadium) stampede trial, which is currently underway, is also emblematic of a police institution that is fraught with problems. The trial began at Surabaya District Court on Monday January 16, with five defendants, namely, Arema FC chairman Abdul Haris, security officer Suko Sutrisno, East Java Mobile Brigade (Brimob) unit commander Hasdarmawan, Malang Police head of operations Wahyu Setyo Pranoto and Malang Police Patrol Unit head Bambang Sidik Achmadi. Unfortunately, the feld perpetrators were not put on trial.