Jakarta Post, September 01, 2006
To kill or not to kill: Ethical and legal debate
Elizabeth Chandra, Chiba, Japan

When I used to live at the International House in Berkeley, California, among the many things I cherished were the communal meals in the beautiful Spanish-structured dining hall. There, students of mostly graduate level convene thrice a day, not only to chomp on dorm-style "ethnic cuisine", but also to socialize with fellow residents of diverse backgrounds, talk about school and current events or catch up on President Bush's latest blunder.

In one of those cross-cultural conversations, I recall, an Italian student brought up the issue of capital punishment. What do we -- his non-European friends -- think of the death penalty?

There was a brief moment of silence, followed by puzzled looks from the largely Asian congregation. His inquiry was carefully sidestepped by way of shrewd switch of subject. The absence of an answer, however, did not mean a lack of response; the gentle gesture of non-answer hinted out loud that his question was a bit too political.

The question of capital punishment is indeed culturally, if not ideologically, charged. Encyclopedias will tell you that most democratic and advanced countries of Europe have abolished the death penalty; many in Asia and Africa retain it; while non-democratic states generally implement it. Democracy, as the cultural fiction goes, champions human dignity, in which case capital punishment becomes a violation of human rights. Countries that retain it are thus perceived to be less democratic, if not less enlightened.

But is the premise really that simple? Let's look at the conceptual history of penal systems as offered by the French historian-philosopher Michel Foucault in his book, Discipline and Punish.

In old European societies, punitive acts generally focused on inflicting bodily pain. Flogging, hanging, dismemberment and quartering were carried out in public for gruesome display of state violence. The body of the condemned person was subject to extended but calculated torture so as to inflict maximum pain prior to the eventual killing. Intense physical pain was to carry the message that the state was capable of returning injuries to the offender with equal, if not more, violence. It served simultaneously as a deterrent force on the spectators.

As society and its penal systems evolved, torture came to be seen as "inhumane." The old style festival-like torture became a marker of "barbarity". Executions disappeared from public view, while punishment shifted from the infliction of pain to the confiscation of rights. A convicted person's rights over his/her body and freedom were taken away by way of incarceration. Modern prisons symbolize this new logic of punishment.

Next to abandoning torture and execution, modern society creates disciplinary institutions that operate on the human psyche. Such institutions work more to cultivate self-control than to intimidate. They induce guilt rather than fear. Economically developed states generally have effective civic institutions such as schools, financially sufficient families, social security, legal protection and reliable law enforcement. Together these elements produce citizens who can discipline themselves. Thus if most European countries today have abolished capital punishment, it is less because they have a higher regard for human dignity (as it may appear on the surface) than because they "can afford" it.

Now, not coincidentally, one finds echoes of the above arguments in the current debate about the death penalty concerning the "Poso three" of Fabianus Tibo, Marianus Riwu and Dominggus da Silva, who were sentenced to death for the killing of hundreds of Muslims during the 2000 communal conflict in Poso.

A lack of education was often cited in defense of the three convicts. Tibo's son, Robert, repeatedly argued that his father's lack of formal education should disqualify him from accusations of masterminding the massacres. His argument, however, inadvertently points the other way -- it underscores the inaccessibility of a formal education for poor people like Tibo, which would have served as a "civilizing" institution that would have trained them to become responsible members of society.

The absence of security and the impotence of police enforcement at the time of the conflict in Poso were also mentioned as factors that compelled the offenders into lawless acts. As those in the trio's corner ask, if the authorities couldn't intervene, can one blame them for "taking matters into their own hands"?

We learned from Foucault that criminal acts are not the result of inherent moral defects, but of the failure of civic institutions to produce law-abiding citizens. Thus for the government to simply punish the offenders -- with the death penalty, no less -- would be to misplace the responsibility. Instead of recognizing the problem of crime as a failure to provide integrative institutions, the state chooses to kill precisely those it has failed.

In addition to the ethical issues surrounding the death penalty, legal proceedings of the Poso trio have become more sensitive as they are closely measured against the case of the "Bali bombers". Defenders of Amrozi, Imam Samudra and Ali Gufron -- on death row for the bombings in Bali in 2002 -- have argued that their executions cannot be carried out prior to those of the Poso three.

To be fair, the Bali trio would not be the first Muslims killed for anarchism. In the past 10 months, Dr. Azahari Husin and four other Jamaah Islamiyah suspects were shot or blown up (allegedly in suicide) in confrontations with Indonesian police. There were no trials for the presumed "terrorists," no lawyers, no legal verdict. Not even courtesy protests from rights groups. They were made guilty by police reports that had come to shape public opinion.

It would have been fair, definitely more credible, had those today clamoring for the abolition of the death penalty voiced similar protests over the death sentences of the Bali trio and the killings of the Jamaah Islamiyah suspects. Representatives of churches and other Christian organizations can rightly argue about the cruelty of capital punishment. But didn't the offenders in the Poso and Bali cases claim to have acted in the name of God and religion? Thus any responsibility and reform should begin from the religious quarters.

The writer holds a doctorate from the University of California, Berkeley. She can be reached at elizabeth.chandra@gmail.com