?An Eye for an Eye?" - the Tragic Execution Of Ruyati and a Way Forward for Indonesia

By Dr. Frans H. Winarta & Colin McDonald QC

Indonesia is in a state of shock following the beheading of Ruyati binti Satubi in Saudi Arabia, on Saturday 18 June.  Ordinary Indonesian citizens are appalled at the barbarous treatment of one of Indonesia’s overseas workers and fellow citizens.  As the facts unfolded during the week, the full enormity of the tragedy emerged. The brutal and unnecessary execution of Ruyati brings into stark focus the terrible implications and consequences of the use of the death penalty.  The execution of Ruyati raises again important policy implications.  The emerging facts surrounding the execution of Ruyati call for a principled and measured response.

The injustices surrounding Ruyati’s execution are compelling.  Ruyati was a poor, hard working 54 year old woman working in Saudi Arabia to save money for her family.  As a worker overseas she was vulnerable.  The reported facts indicated that she killed the wife of her Saudi employer in circumstances of self defense.   There were reports that Ruyati was often abused by her employer.  Her case passed through the Cassation Court and the Supreme Court in Saudi Arabia.  It appears the death penalty was sought and justified by Qishas (the principle of ‘an eye for an eye’).

The Saudi decision has come in for trenchant criticism by Indonesian legal experts.  They point out that Qishas only applies when the act of killing is accompanied by an intention to kill or ‘ill intention’.  Qishas does not apply in circumstances of self defense.  There was strong criticism of the Saudi courts’ decision to the effect that the courts should have taken motive into account as required by Sharia law.

Leaving aside issues of curial and legal error, the circumstances of Ruyati’s case called out for clemency – none was given.  What is 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 support such a clemency application or to make appropriate political representations.

The enormity of what has occurred is underscored by the Indonesian Foreign Minister Marty Natalegawa being summoned to the House of Representatives on Monday, 20 June for explanation as to the circumstances of Ruyati’s death.  The Minister said: “But the execution was carried out on June 18, without letting the Indonesian Government know”.  The Minister added that other foreign nationals were executed also without the required advance notice being given to their families or foreign representatives.  “It is regrettable that Saudi Arabia has repeatedly ignored its international obligations to inform related countries about consular affairs their nationals are facing,” he said.

With over 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 over 26 Indonesian citizens sit on death rows in Saudi Arabia and with over 216 Indonesian citizens in death rows in other foreign countries.

Indonesia has an excellent and highly professional Foreign Affairs Department, one of the best in the world.  Had proper notice been given, officers of the Indonesian Foreign Affairs Department could and would have done all they could to protect a fellow citizen of Indonesia.  Indonesia is a democracy, as Justice Felix Frankfurter of the U.S. Supreme Court reminds us:  “in a democracy, in our society, the most important office is the citizen”.  An Indonesian citizen has been brutally and unnecessarily executed.  More Indonesian citizens sit in the death rows of Saudi Arabia.

The tragedy of Ruyati’s execution and the apparent failure to accord Indonesia the usual diplomatic privileges call for a principled and measured response.  The protection of Indonesian citizens calls for such a measured and mature response by a new democracy.  If the facts are as the Indonesian Foreign Minister has told the House of Representatives, then Indonesia has recourse to the International Court of Justice.  The taking of legal proceedings is both reasonable and appropriate in all the 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.  In the 1990s, Germany, Paraguay and Mexico took the USA to the International Court of Justice and succeeded in legal proceedings in that Court where the United States had failed to give adequate notification to the diplomatic missions of their respective nationals who faced execution in the United States.  Here, the reported facts are even stronger if there was no notice or no adequate notice given to the family or to Indonesian Representatives concerning Ruyati’s execution, and then Indonesia has a very strong case against Saudi Arabia in 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 gravity of what has occurred raises further issues beyond recourse to legal action in the International Court of Justice.  Saudi Arabia’s image is in tatters in the eyes and esteem of ordinary and informed Indonesians.  The execution of Ruyati once again highlights the problems for the countries which retain the death penalty.  The world trend is clearly towards abolition of the death penalty.  A decisive majority of countries have abolished the death penalty in law or in practice.  The United Nations General Assembly voted overwhelmingly in favour of the moratorium in respect of the use of the death penalty on 18 December, 2010. Had there been a worldwide moratorium, then Ruyati and the lives of other Indonesian citizens on death rows in overseas countries would have been saved.

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 taken into account and accorded due weight?

In our region, Australia, New Zealand, Papua New Guinea, Timor Leste, the Philippines and Cambodia have all abolished the death penalty.  The criminal laws of those countries still protect those societies without recourse to the death penalty.  Statistics in America show that the death penalty does not deter the commission of crime.  Those states in America which have abolished the death penalty have no higher crime rates than those who retain them.  Then, there is the litany of cases around the world where evidence subsequently demonstrates that an innocent person has been wrongly executed on seemingly convincing evidence.  All legal systems are familiar with miscarriages of justice and mistakes.  When the death penalty is carried out, it is too late to complain about a miscarriage of justice, it is too late to fix the mistake.

The Chief Justice of the South African Constitutional Court, Ismail Mohamed, expressed eloquently the true implications of the death penalty in the case of The State v Makwanyane 1995 (3) SA 371; 6 BCLR 665 at paragraph 265.  He said:

“The death penalty sanctions the deliberate annihilation of life.  As I have previously said, it is the ultimate and the most incomparably extreme form of punishment…It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind.

It is not necessarily only the dignity of the person to be executed which is invaded.  Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place…”

In Indonesia, Justices of the Mahkamah Konstitusi in the recent case of petitions brought by Edith Yunita Sianturi and others, including Australian citizen Scott Rush, also canvassed the implications of the death penalty in extensive reasons for decision on 30th October, 2007.  At page 175 of the official English version of the majority judgment, the Justices observed:

“The death penalty is truly frightening.  In the death penalty humans act as if they have taken over the role of God in determining someone’s life or death.”

The Court in that case upheld by a majority of 6 to 3 the constitutional validity of the death penalty provisions contained in the 1997 Narcotics Law of Indonesia.  In doing so, the Court made important, cautionary statements and recommendations about the use of the death penalty as the extreme form of punishment, as the last resort and should have been done selectively.   The Court canvassed the expert evidence and statistics tendered concluding there was no convincing evidence that the death penalty deterred crime more than a life term or a lengthy term of imprisonment.

Significantly, the Constitutional Court recommended:

“a) the death penalty should not any more be a primary form of punishment, but a punishment which is special and alternative.

b) the death penalty should be able to be imposed with a probation period of ten years, so in the case the prisoner shows good behavior, it can be amended to a life sentence or imprisonment of 20 years;

c) the death penalty should not be imposed on children under age/not yet an adult;

d) the execution of the death penalty with respect to pregnant women and mentally ill persons should be postponed until the women gives birth and the mentally ill prisoner has recovered.”

The recommendations of one of Indonesia’s two apex Courts are sound and are brought into poignant perspective by the execution of Ruyati.  Now is a time for principled leadership and action in the defense of Indonesian citizens overseas.  The bringing of legal proceedings in the International Court of Justice is a sensible start.

Indonesia is one of the world’s newest democracies and one of the emerging, economically powerful nations.  Indonesia chairs the ASEAN group of nations in our region and is in a position to exert influence and moral leadership.  In relation to the case of the death penalty, it is time Indonesia reflected upon the practical and best interests of Indonesian citizens.

Retaining the death penalty can be counter-productive.  Because Indonesia still retains the death penalty, efforts by Indonesian National Police (INP) to combat serious crime can be thwarted.  We saw this when the Dutch Government withheld information which may well have assisted the INP when it was investigating the death of human rights advocate, Munir.  This was because assistance by Dutch police could lead to the death penalty for those charged in relation to the crime.  If there was no potential exposure to the death penalty, assistance would have been given.  Similarly the Australian Federal Police are restrained by guidelines from any assistance overseas where that assistance could lead to the imposition of the death penalty.  In areas of terrorist and drug related crimes there is often a trans national component and the INP should be able to access all the practical help it can in investigating crimes that harm Indonesians.

Then, there are Indonesia’s diplomatic and economic interests to consider in the continued retention of the death penalty.  A majority of countries in the world have abolished or suspended the use of the death penalty.  Relations with good neighbour States where the death penalty has been abolished are predictably, but unnecessarily, strained when a citizen from that country receives the death penalty in Indonesia.  A strong argument exists that it is in Indonesia’s practical best interests, as a nation State, to abolish the death penalty or at least to test where Indonesia’s practical interests are best served.

One way of testing where the practical best interest of Indonesia is to have a moratorium on the use of the death penalty and implement in legislation the recommendations of the Mahkamah Konstitusi (Constitutional Court).  This would signal a commitment not only to Indonesian citizens and be respectful of the deeply held values of neighbouring States, but would also implement the jurisprudence of the Indonesian Constitutional Court.

The other practical way of assisting the INP in its work against crime and which would free Indonesia from completely unnecessary diplomatic strain, is the more flexible and pragmatic use of prosecutorial discretions and the law relating to clemency.  In respect of citizens found guilty of serious crime from countries which have abolished the death penalty, there could and should be a policy (in Indonesia’s interests) to have death penalty sentences not called for or commuted to a life sentence or a sentence of 20 years.

Let not the horrible death of Ruyati and the grief of her family 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 is no longer needed.

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.

Dr. Frans H. Winarta

- Attorney of Scott Rush -

Colin McDonald QC

- The Senior Australian counsel for two members of the Bali Nine Renae Lawrence and Scott Rush, and counsel and adviser to the Indonesian Foreign Affairs Department and Indonesian citizens in Australia for over 20 years -