JUSTICE SYSTEM IN INDONESIA
The civil law system in Indonesia is based on the Roman-Dutch model and influenced by customary law. There are Islamic and family codes as well as criminal codes. Some laws date back to the Dutch colonial era. Indonesia has made great improvements toward democracy since the ouster of longtime dictator Suharto in 1998, but the judicial system needs some work. Indonesia's court system is plagued with corruption, inefficiencies, poorly trained staff and financial constraints. Reading verdict can take eight hours. Under Indonesian law any piece of land for which there is no title belongs to the government by default.
Indonesia’s complex justice system evolved from three inherited sources of law: customary or “adat “law, Islamic law (sharia), and Dutch colonial law. The judicial branch is independent and coequal with executive and legislative branches, with Supreme Court and Constitutional Court at apex of judicial system. There are four different court systems below Supreme Court: courts of general civil and criminal jurisdiction, religious courts, state administrative courts, and military courts. “Adat” (roughly meaning "traditional law") is a eye-for-eye code in which someone who commits a wrong or breaks a taboo is regarded as subhuman and open to punishment. Many ethnic groups in Indonesia use adat as a means of social control and employ it outside the Indonesian legal system.
The Indonesian judicial system is no longer under the administrative and political control of the executive branch. The highest courts are Supreme Court or Mahkamah Agung (51 judges divided into 8 chambers) and the Constitutional Court (consists of 9 judges). Supreme Court judges are nominated by the Judicial Commission and appointed by president with concurrence of parliament. These judges can serve until retirement age. Of the nine Constitutional Court judges, three are nominated by president, three by Supreme Court, and three by parliament. Many other judges are appointed by the president. Judges serve until mandatory retirement at age 70. Subordinate courts including the High Courts of Appeal, district courts and religious courts. [Source: CIA World Factbook]
The Indonesian legal system is extraordinarily complex, the independent state having inherited three sources of law: customary or adat law, traditionally the basis for resolving interpersonal disputes in the village environment; Islamic law (sharia), often applied to disputes between Muslims; and Dutch colonial law. Adat courts were abolished in 1951, although customary means of dispute resolution are still in use in villages. The return to the 1945 constitution in 1959 meant that Dutch laws remained in force except as subsequently altered or found to be inconsistent with the constitution. A criminal code enacted in 1981 expanded the legal rights of criminal defendants. The government in 2009 was still reviewing its legacy of Dutch civil and commercial laws in an effort to codify them in Indonesian terms. The types of law recognized in MPR Decree No. 3 of 1999 include the constitution, MPR decrees, statutes passed by the DPR and ratified by the president, government regulations promulgated by the president to implement a statute, presidential decisions to implement the constitution or government regulations, other implementing regulations such as ministerial regulations and instructions, and local (provincial and district) regulations. Obviously, the executive enjoys enormous discretion in determining what is law. *
Many ordinary Indonesians have no confidence in the justice system and feel they have no recourse under the law. When asked what justice meant to the average Indonesian, Pramoedya Ananta Toer, Indonesia's best known novelist, told the Washington Post, "The word “adil”, or "justice," came to Indonesia with the spread of Islam in the 14th century but to this day, the word is not a reality for the common man. It is a concept even though it is mentioned daily in relation to “hukum”, or law. Both justice and law are still a hope that has been promised but never delivered in our history, not in our ancient kingdoms, not under centuries of Dutch colonial occupation and not under Suharto's regime."
Indonesia’s Judicial Branch and the Constitution
The judicial branch stands coequal with the executive and legislative branches. Justices of the Supreme Court are nominated by the independent Judicial Commission for approval by the DPR and formal appointment by the president. The chief justice and deputy chief justice are elected by and from among the justices. Members of the Judicial Commission must have a legal background or experience and are appointed and dismissed by the president with the approval of the DPR. [Source: Library of Congress *]
Article 24 of the amended constitution states that judicial power shall be vested in the Supreme Court, the Constitutional Court, and subordinate courts established by law, and that the organization and competence of courts shall be established by law. In Sukarno’s Guided Democracy, the justice system became a tool of the revolution, and any pretense of an independent judiciary was abandoned. Although in theory one of the goals of the New Order was to restore the rule of law, in practice the judiciary remained both corrupt and a means for suppressing political dissent. Judicial reform was thus a key demand of the 1998 student movement and remains one of the most important items on the political-reform agenda. Important steps were taken in this regard as part of the 1999–2002 constitutional-amendment process. *
“A new body, the Constitutional Court, was established to review the constitutionality of laws, resolve disputes among the various branches and levels of government, have final say in the dissolution of political parties, and decide disputes over election results. The Constitutional Court also plays a role in the presidential-impeachment process by issuing a verdict on an indictment made by the DPR. The court has nine justices, three each nominated by the Supreme Court, the DPR, and the president. Justices must be knowledgeable about the constitution and may not be state officials. The Constitutional Court chief justice and deputy chief justices are chosen by and from among the justices. *
Different Kinds of Court Systems in Indonesia
The Supreme Court has exclusive jurisdiction in disputes between courts of the different court systems and between courts located in different regions. It can annul decisions of high (appellate) courts on points of law, not fact. On request, it can give advisory opinions to the government and guidance to lower courts. However, its powers of judicial review are limited to decisions on whether administrative regulations and local regulations conform to the laws as passed by the DPR. Another reform to strengthen the system of checks and balances was the 2004 shift of administrative and financial control over the lower courts from the Department of Justice (now called the Department of Justice and Human Rights) to the Supreme Court. [Source: Library of Congress *]
Four different court systems operate below the Supreme Court. 1) First, there are courts of general civil and criminal jurisdiction. District courts are the courts of first instance. High courts (at the provincial level) are appellate courts. Following the Dutch legal system, cases are decided by panels of judges rather than juries. Sources of law on which parties to a dispute may base their claims include: international law (to date rarely used); modern Indonesian civil law, which has replaced but is often rooted in colonial-era Roman-Dutch civil law; and adat (customary) law, which differs widely among ethnic groups. The court system remains highly corrupt, with verdicts in both civil and criminal cases influenced by bribery by both plaintiffs and defendants. Although judicial reform is key to consolidating democracy and establishing a more favorable investment climate, efforts at judicial reform have so far been half-hearted and largely ineffective. *
2) Second, religious courts exist throughout Indonesia to resolve disputes between Muslims in matters of marriage, divorce, inheritance, and gifts. These district-level courts base their decisions on Islamic law. As in the secular court system, religious high courts are appellate courts at the provincial level. One of the persistent tensions between Muslims and the state arises from efforts to expand the jurisdiction of the religious courts. 3) Third, the state administrative court system resolves matters pertaining to the decisions of government officials. In addition, the Taxation Review Board adjudicates taxation disputes. Other administrative courts were eliminated as part of the government’s effort to simplify and standardize the court system. *
4) Fourth, military courts have jurisdiction over TNI members. After the 1965 coup attempt, temporary special military courts were given authority to try military personnel and civilians alleged to be involved in the abortive coup. Hundreds of sentences ranging from 20 years’ imprisonment to death were meted out by the special military courts, with executions occurring more than two decades after the event. The DPR has included a provision in a draft military law that would require all military personnel accused of nonmilitary crimes to be investigated by civilian prosecutors and tried by the civil court system. The military leadership opposed this provision, and it is still being debated. *
Another court, the Corruption Crimes Court (Tipikor Court), was established in 2003 to confront widespread corruption in Indonesia, especially in cases of financial loss to the state and as a deterrent to future corruption. In 2006, however, the Constitutional Court ruled that the Tipikor had no legal basis and gave the DPR and the government until December 2009 to pass a law to justify the court’s continued existence. Tipikor was allowed to continue to function during this period, and in September 2009 the DPR complied with appropriate enabling legislation, thus ensuring the court’s constitutionality. *
Criminal Justice System
The nation’s criminal jurisprudence and its institutions of criminal justice derive from Indonesia’s experience as an independent state and from the Dutch colonial heritage. Dutch-based criminal law is one of three systems of law in operation in the nation since the nineteenth century, the other two being a system of European-derived commercial codes and civil law based on customary law (adat), which includes Islamic law or sharia. Criminal law is the only one of these three systems that is essentially codified and applied uniformly throughout the national territory. Criminal justice is administered through a system that includes a hierarchy of trial and appellate courts with the Supreme Court at the top of the pyramid; a prosecutorial arm of the national government; and an independent bar. Indonesians and outside observers have long considered the criminal justice system one of the most corrupt branches of the Indonesian government. [Source: Library of Congress *]
Several factors limit the use of formal legal channels in dealing with activity defined as criminal. Owing in large part to a general shortage of trained legal personnel, the infrastructure of the criminal justice system is more extensive in urban locales and in Java than in rural or remote areas. In any case, the system’s procedures often do not apply to military, security, and intelligence organizations, which in practice sometimes deal with both political and ordinary crime. Indonesians do not always resort to the formal legal system to resolve their conflicts, however, because many do not share Western views regarding the nature of individual rights and the efficacy of law and procedural justice but prefer to settle disputes by arbitration or accommodation. Retribution and revenge, moreover, are still common ways of settling disputes, especially away from the big cities and towns. *
In rural areas, many conflicts, including some (mostly minor) criminal cases, are settled by village chiefs. Complaints often go unfiled with authorities, even in villages and cities, and cases frequently settle out of court in order to save time and money or to avoid attracting public or official attention. In criminal cases, such settlements typically entail accommodation between the accused and the police or prosecutors, whose roles in the criminal justice system are generally more critical than those of courts or judges. Wealth and status are apt to be important factors in the outcome. *
Certain categories of crime are handled under special statutes outside the penal code under Indonesian law. After the fall of Suharto, offenses such as bribery, the assessment of pungli (a contraction of pungutan liar—illegal levies), and the diversion of public funds for private use by business figures or officials were grouped in a special class of crimes under the jurisdiction of anticorruption courts and the Commission to Investigate Public Officials’ Wealth. The transition to democracy also included abolition of an internal subversion act that had been used to jail critics of the Suharto government. *
Criminal Law and Proceedings in Indonesia
The Indonesian criminal code in force at independence was basically the Netherlands Indies Criminal Code, adopted in 1918, plus certain amendments promulgated by the revolutionary government in 1946. Known as the Code of Criminal Law, since 1958 it has been applied uniformly throughout the national territory. [Source: Library of Congress *]
The Code of Criminal Law has three chapters. Chapter I defines the terms and procedures to be followed in criminal cases and specifies mitigating circumstances that may affect the severity of a sentence. Chapters II and III, respectively, define the categories of felonies and misdemeanors and prescribe the penalties for each type of offense. The distinction between felonies and misdemeanors generally conforms to that in Western countries. Several other statutes dealing with criminal offenses are also in force, the most significant of which are laws concerning economic offenses, subversive activities, and corruption. *
Penalties for major offenses include death (infrequently imposed, for treason, drug trafficking, and—since 2002—terrorism, among other crimes), imprisonment for periods up to life, local detention, and fines. Total confiscation of property is not permitted. Penalties for minor crimes and misdemeanors include deprivation of specified rights, forfeiture of personal property, and publication of the sentence of the court. Punishments listed in the code are the maximum allowable; judges have discretionary authority to impose a lesser punishment. *
Trials and Criminal Proceedings in Indonesia
High-profile trials are overseen by up to five judges. The judges can be women. The Bali bombing trial was overseen by four male judges and one female judge. Under Indonesian law, prosecutors turn over a dossier of evidence and an indictment to a court, which then sets the trial dates if it finds the material meets the standards for a case. There are separate dossiers for each charge.
New guidelines on criminal proceedings were promulgated on December 31, 1981. These new guidelines, known collectively as the Code of Criminal Procedures, replaced a 1941 code that was itself a revision of an 1848 Dutch colonial regulation that stipulated legal procedures to be used in both criminal and civil cases. Both national jurists and government officials had complained that statutory ambiguity in the old code and certain of its provisions in some cases had led to abuses of authority by law enforcement and judicial officials. [Source: Library of Congress *]
Under the old system, several authorities, including the police, the regional military commands, and the public prosecutors, shared powers of arrest, detention, and interrogation—an often confusing situation that sometimes led plaintiffs to file complaints with the particular agency they believed would deal most favorably with their case. Individuals could be arrested and detained on suspicion alone, and there were broad limits on how long a suspect could be held before being charged or brought to trial. Moreover, the accused could request legal counsel only when that individual’s case was submitted to a judge, and not during any pretrial proceedings. *
The 1981 code represents a considerable step forward in the establishment of clear norms of procedural justice. Under it, criminal investigation powers lie almost entirely with the police. A suspect can be held only 24 hours before the investigating officials present their charges and obtain a detention order from a judge. Specific limits are established on how long a suspect can be held before a trial. The 1981 code expressly grants the accused the right to learn the charges against him or her, to be examined immediately by investigating officials, and to have the case referred to a prosecutor, submitted to a court, and tried before a judge. The accused also has the right to obtain legal counsel in all of the proceedings. Should it turn out that a person has been wrongly charged or detained under the 1981 code, that individual has the right to sue for compensation and for the restoration of rights and status. *
Administration of Criminal Justice in Indonesia
The prosecutorial function rests with the attorney general, who holds the position of supreme public prosecutor. The president sometimes grants the attorney general cabinet-level status, and the attorney general has direct access to the president. The Attorney General’s Office is separate from the Department of Justice and Human Rights. The public prosecutor’s principal functions are to examine charges of felonious conduct or misdemeanors brought by individuals or other parties, and then either to dismiss a charge or refer it for trial to the state court having jurisdiction. The prosecutor’s office is also responsible for presenting the case against the accused in court and for executing the sentence of the court. [Source: Library of Congress *]
The Code of Criminal Procedures of 1981 made a clear division between the investigation function, solely the preserve of the police, and the prosecution function, which remained with the prosecutor’s office. The only exception was in the case of “special crimes,” a category that was not further defined but that was believed to be reserved for unusually sensitive cases such as espionage and subversion, in which the prosecutor could also take an investigatory role. Continuing tension between the prosecutor and the police was evident during debate over a new prosecution service law in 1991. The law as passed gave the attorney general the power to conduct limited investigations in cases that were determined to be incomplete. The 1991 law also established deputy and associate attorney general positions responsible for civil cases and administrative affairs. *
The court system has four branches: general courts, religious courts, military courts, and administrative courts. All criminal cases are tried in the general courts. The Code of Criminal Procedures set forth rules to determine the court in which a case must be tried, should military and general court jurisdiction combine or overlap. In 2004 the armed forces accepted Supreme Court jurisdiction over the military court system, and in 2007 the DPR introduced legislation stipulating that all crimes committed by military personnel outside of operational military duties will be prosecuted in the civil court system. The TNI has opposed this new law by claiming that the civilian court system neither understands the military justice system nor is capable of taking over responsibility for prosecution of military personnel accused of nonmilitary crimes. Service members remain subject solely to the military legal system for all crimes allegedly committed while in the pursuit of military duties. *
Death Penalty in Indonesia
Indonesia has the death penalty. It is rarely invoked but was given to three people involved with the Bali bombing. Although Indonesia has a widely publicized death penalty for drug trafficking, most people who get caught trafficking escape that fate, but some don’t. One Indonesian official told the New York Times, "Death row inmates will only be executed according to the law, after their appeals are exhausted and their clemency bids rejected." Former President Susilo Bambang Yudhoyono was a staunch supporter of the death penalty since taking office. He went ahead with the execution of three Christian militants in 2004, despite concerns from international human rights groups over whether or not they got a fair trial. He said publicly he would not pardon drug offenders or commute the death sentence of three Australians imprisoned in Bali for smuggling heroin.
In 2008, Peter Gelling wrote in the New York Times, “In Indonesia, the death penalty is carried out by firing squad. When the time comes, after any final wishes have been granted, the prisoner is taken to a field to stand in front of 12 gunmen. A single shot is fired from each rifle, carefully aimed at the chest. If that does not kill the prisoner, the commander will fire a point-blank shot to the head. This is how it went for Ahmad Suradji, 57, who was executed night for the murder of 42 women in the 1990s. No family or witnesses were allowed. This was how it also went for two Nigerians executed on drug trafficking charges. Indonesia has 112 felons now on death row, seven of whom have exhausted all their appeals and are expected to be executed soon, including the three terrorists sentenced to death for their roles in the 2002 Bali bombings that killed 202 people. Eighteen other prisoners, in a last-ditch effort to save their lives, are appealing to the president for clemency. [Source: Peter Gelling, New York Times, 2008 |+|]
Associated Press reported: “Authorities do not release official statistics on the death penalty. The time and place of executions are never made public before they occur. According to Amnesty International, authorities are preparing to execute at least four other Indonesians. One of them is also a sorcerer, who was found guilty of killing 8 people. [Source: Associated Press, July 11, 2008]
According to deathpenaltyworldwide.org: “Death-sentenced inmates are executed by firing squad. The prisoner has the choice of standing or sitting, and of whether to have his eyes covered by a blindfold or hood. Firing squads are made up of 12 people, three of whose rifles are loaded with live ammunition, while the other nine are loaded with blanks. The squad fires from a distance of between five and ten meters. If following the shooting the prisoner still shows signs of life, there is one final shot to the head. A prisoner only learns of his impending execution 72 hours in advance. By law, executions are to take place out of the public view. In 2009, Indonesia’s semi-autonomous region of Aceh endorsed a draft by-law providing for Shariah punishments, including stoning for adultery. This punishment was opposed by Indonesia. In March 2013, the Aceh government removed the stoning provision from the draft by-law. [Source: deathpenaltyworldwide.org, October 1, 2013 ]
Despite the apparent expansiveness of the scope of the death penalty under Indonesian law, reports indicate that in practice the death penalty has been imposed and carried out only for murder (usually seriously aggravated), terrorism and drug trafficking offenses. According to information provided by Indonesian authorities, there were 133 people on death row as of December 31, 2012. Of these 133, there were 71 convicted of drug offenses, 60 convicted for murder, and 2 for terrorism. Since then, there have been 4 executions and at least 5 new death sentences. There were five executions in 2013, which works out to an execution rare of 1 execution per 47,520,000 persons. There were no executions in 2009, 2010, 2011 and 2012. There were 10 in 2008 and 1 in 2007. In March 2013, Indonesia carried out its first executions since 2008 when it executed a foreign national for drug-trafficking. In May 2013, Indonesia carried out a further three executions of prisoners convicted of premeditated murder. The previous execution had taken place in November 2008, when Indonesia executed three of the men involved in the 2002 Bali bombings.
Crimes Punishable by Death in Indonesia
According to deathpenaltyworldwide.org: Premeditated murder is punishable by death. Aggravated gang-robbery (theft preceded, accompanied or followed by force or threat of force and committed by two or more united persons, and committed either at night in a dwelling or after a forced entrance into a dwelling) resulting in death is punishable by death. “Extortion” with force or threat of force resulting in death, committed by two or more united persons, is punishable by death. Extortion is defined as forcing a person to deliver a good to oneself or to a third party or to negotiate a loan or annul a debt by force or threat of force. Piracy resulting in death is punishable by death for the skipper, the captain, the commander, and all offenders involved in the acts of violence. Some acts of corruption detrimental to the finance or economy of the State are punishable by death. [Source: deathpenaltyworldwide.org, October 1, 2013 ]
Aggravated gang-robbery (theft preceded, accompanied or followed by force or threat of force and committed by two or more united persons, and committed either at night in a dwelling or after a forced entrance into a dwelling) resulting in serious physical injury is punishable by death. “Extortion” with force or threat of force resulting in serious physical injury, committed by two or more united persons, is punishable by death. Extortion is defined as forcing a person to deliver a good to oneself or to a third party or to negotiate a loan or annul a debt by force or threat of force.
Involvement in manufacturing or trafficking or conspiracy or organized crime related to manufacturing or trafficking is punishable by death. Under Article 89 of Law No. 23 of 2002 on Child Protection, involving children in production, trafficking or use of narcotics is punishable by death. Under Article 59 of Law No. 5 of 1997 on psychotropic drugs, the use, production, possession or trafficking of psychotropic drugs “as an organized crime” is punishable by death.
Terrorism and Treason Crimes Punishable by Death in Indonesia
According to deathpenaltyworldwide.org: A range of offenses are punishable by death as treason, such as the killing or attempted murder of the Vice President, President or head of a friendly state, collusion with foreign powers intended to cause and resulting in hostilities and assisting the enemy or prejudicing the state in time of war (such as by betrayal, destruction or demoralization). Under Articles 22 and 23 of Law No. 31/PNPS/1964 on atomic energy, “officers of the atomic installation, National Atomic Energy Body and other organizations that carry out the use of atomic energy” are punishable by death if they intentionally breach confidentiality. According to a 2010 report, numerous military offenses carry the death penalty under the Indonesian Military Penal Code. Under Articles 14 and 27 of Law No. 9 of 2008 relating to chemical weapons, the development, production, obtaining, transfer or use of chemical weapons, including as part of a military operation, is punishable by death. [Source: deathpenaltyworldwide.org, October 1, 2013 ]
Attacks such as piracy, hijackings or violence against persons aboard vessels or aircraft, resulting in death, are punishable by death. Under Article 6 of Law No. 15 of 2003 on combating terrorism, creating a “widespread atmosphere of terror” by taking life is punishable by death. Under Articles 14 and 27 of Law No. 9 of 2008 relating to chemical weapons, use of chemical weapons is punishable by death.
An attack aboard an aircraft, resulting in the destruction of the aircraft, is punishable by death. Under Articles 6, 9 and 14 of Law No. 15 of 2003 on combating terrorism, creating (or planning or inciting others to create) a “widespread atmosphere of terror” by taking liberty or property or damaging state, environmental or public resources, or facilitating or attempting to facilitate terrorism, is punishable by death. (Article 9, addressing facilitation, is “virtually a reproduction of Indonesia’s Emergency Law No. 12 of 1951 on the Possession of Firearms and Explosives.”) Under Articles 14 and 27 of Law No. 9 of 2008 on a law relating to chemical weapons, developing, producing, obtaining, transferring or using chemical weapons, or involvement in or incitement of the aforementioned, is punishable by death.
Reports indicate that Article 2 of Presidential Stipulation No. 5 of 1959 permitted the death penalty for crimes endangering food and housing. Portions of the laws and decrees of 1959 (apparently dictated by President Sukarno) may no longer be good law and we have been unable to confirm whether Stipulation No. 5 is good law.
Under Articles 8, 9, 37 and 38 of Law No. 26 of 2000 on Human Rights Courts, crimes that carry a maximum penalty of death include genocide (as defined by the Genocide Convention, but not including ancillary crimes of genocide) and crimes against humanity (such as killing, extermination, forcible transfer of citizens, imprisonment or other severe deprivations of physical liberty, enslavement, torture, rape, persecution, enforced disappearance and apartheid).
Crimes For Which People Have Been Executed in Indonesia
Seventeen people have been executed for murder in Indonesia since 1998. Eight of these executions have taken place since 2008. In some of Indonesia’s first executions since 2008, three prisoners were executed in May 2013 after being convicted of premeditated murder. In 2008, three men known as the “Bali Bombers” were executed for their involvement in the October 2002 bombing on the island of Bali, which killed 202 people and injured 209. [Source: deathpenaltyworldwide.org, October 1, 2013 ]
Five executions for murder took place in 2008: 1) Tubagus Yusuf Maulana was executed on July 18, 2008 for the murder of eight people who had come to him seeking a shaman. 2, 3) A woman named Sumiarsih, 60, and her son, Sugeng, 44, were executed on July 19, 2008 for the murder of a marine and four members of his family back in 1988. 4) Ahmad Suradji, 57, was convicted of murdering at least 42 women and girls in what were called “ritual slayings” and executed by firing squad on July 10, 2008. Reportedly, the man believed he would gain supernatural powers by killing the women. 5) Rio Alek Bulo, nicknamed “Hammer” by newspapers, was executed by firing squad on August 8, 2008. Bulo was convicted of murdering four people by way of a hammer while trying to steal their cars.
At least six people have been executed for narcotics crimes since 1998, three of whom have been executed since 2008. In March 2013, Indonesia carried out its first execution since 2008 when it executed a foreign national for drug-trafficking. In June 2008, two Nigerian men, Samuel Iwachekwu Okoye and Hansen Anthony Nwaliosa, were executed by firing squad after being convicted of drug trafficking. Data on sentencing and executions from 1998-2009 shows that narcotics and psychotropic drugs offenses accounted for most death sentences and executions during that period.
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime:. A child cannot serve a sentence unless the court determines that he can tell the difference between good and bad. Crimes that are normally punished by the death penalty are replaced by a maximum prison sentence of ten years for minors. Pregnant Women: The execution of a pregnant woman is stayed until 40 days after delivery. [Source: deathpenaltyworldwide.org, October 1, 2013 ]
Mentally Retarded. Pursuant to Article 44(1) of the Penal Code, no criminal liability can be imposed for an act committed “by reason of the defective development or sickly disorder” of the defendant’s “mental capacities.”  We found no law indicating that individuals with significant intellectual disabilities are ineligible for execution apart from the circumstances described in Article 44(1). In other words, individuals with severe intellectual disabilities may be excused from criminal liability if their disabilities are proven to “cause” their criminal behavior. Where a direct causal relationship is not proven, however, there is no provision in the penal code that provides that such individuals shall not be sentenced to death.
Pursuant to Article 44(1) of the Penal Code, no criminal liability can be imposed for an act committed “by reason of the defective development or sickly disorder” of the defendant’s “mental capacities.”  We found no law indicating that individuals who develop a severe mental illness after they are convicted and sentenced to death are ineligible for execution.
Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Global Viewpoint (Christian Science Monitor), Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.
Last updated June 2015