“Am I being executed?...That’s not right”

 

The author, Jean-Paul Ong, was the AHRCentre- Reprieve student intern for semester 1, 2015. Read more about the internship here.

Am I being executed? That’s not right.

 

In April 2015 in Indonesia, Rodrigo Gularte, a Brazilian national was executed for a drug trafficking offence committed in 2004. According to the priest who was with Gularte minutes before his execution, Gularte told he priest he was hearing voices in his empty cell and asked, “Am I being executed?...That’s not right”.

 The available medical evidence showed that Rodrigo Gularte had suffered from schizophrenia since 1982 and only realised he was about to be shot minutes before the firing squad. The case raises serious concerns about the adequacy of Indonesian law in relation to the criminal liability of persons with mental illness and its application to cases such as that of Gularte.

There is considerable doubt as to whether Gularte should have been put on trial and convicted at all due to his mental illness. Article 44 of the Indonesian Penal Code provides that a person who is suffering from mental illness is not to be found liable for a crime, though the exact scope of this provision is not clear. In any event, despite his continuing mental illness being confirmed by various medical examinations that showed he did not understand his situation and that he was to be executed, the Indonesian Attorney-General considered that Gularte was mentally fit enough to be executed.

The imposition of the death penalty has been challenged before the Indonesian Constitutional Court on a number of grounds. Indonesia’s Constitution guarantees the rights to life and not to be subjected to torture: these are “human rights that shall not be limited under any circumstances” and the state must regulate and guarantee the implementation of these rights through “laws and regulations.” Despite this guarantee, the law of Indonesia provides the death penalty for a range of crimes including murder and drug trafficking.

It has been argued that the death penalty deprives a person of their life contrary to the right to life guarantee. However, in 2007 the Indonesian Constitutional Court in Sianturi held that the death penalty for drug offences was not an unconstitutional violation of the right to life. Article 28 of the Constitution was construed to not only prohibit the government from taking life but also to oblige the government to regulate to protect life, finding drug trafficking as a crime that threatens the lives of citizens. The Court also ruled that under international treaty and customary law, the application of death penalty for the ‘most serious crimes’ was consistent with the right to life, and that drug trafficking offences were properly chacterised as such crimes. This conclusion was flatly at odds with the view taken by the UN Human Rights Committee in relation to drug trafficking offences at the time, a view reiterated in the Committee’s comments on Indonesia’s report under the ICCPR in 2013.

It has also been argued that execution by firing squad in itself is unconstitutional, because it involved the infliction of intense and severe pain and suffering that amounts to torture. However, the Indonesian Constitutional Court in Nurhasyim held that execution by shooting was not torture under Indonesia’s Constitution. The Court found that pain is inherent to execution, the infliction of pain during execution is not presumptively torture, and that death by shooting allows the condemned to retain dignity.

Indonesia’s Penal Code provides that no criminal liability is to be imposed on persons who commit an act by reason of the defective development or sickly disorder” of the defendant’s “mental capacities.” However, there appear to be no laws that explicitly protect individuals who develop a severe mental illness after they are convicted and sentenced to death, nor do the laws excuse persons with intellectual disability unless their disabilities are proven to have directly caused their criminal behaviour.

The Indonesian Constitution guarantees that a person will not be subjected to inhuman or degrading treatment. In some countries such guarantees have provided protection for persons with mental illness and intellectual disability from execution in cases where the persons involved do not understand the nature and significance of the punishment they face.

Although Indonesia has constitutional and statutory provisions that would seem to have protected a person such as Rodrigo Gularte from conviction and subsequently from execution of a death sentence, they were not effective in that case.