INDONESIA: Constitutional court rejects death penalty challenge
Updated
Indonesia's constitutional court has dismissed a legal challenge to the death penalty brought by five convicted drug smugglers on death row, two Indonesians and three members of the so-called Bali nine. Their argument that the death penalty violates the Indonesian Constitution which guarantees the right to life was thrown out.
Presenter: Linda LoPresti
Speakers: Indonesian law expert Professor Tim Lindsey, who heads the Asian Law Centre at Melbourne University
LOPRESTI: Tim Lindsey, Indonesia's constitutional court has declared the death penalty is constitutional. The court has ruled that the right to life is not absolute. First of all, are you surprised by this outcome, because you have in the past indicated that the ruling could have gone either way?
LINDSEY: Yes, I think it's a disappointing decision because the words of the Constitution are quite clear. It says that all persons in Indonesia have a guaranteed right to life. And then it goes on to say that that is an absolute right that cannot be diminished under any circumstances. The right to life can be found in other bills of rights and in fact comes directly from the Universal Declaration of Human Rights. But even in the Universal Declaration those words "cannot be diminished under any circumstances", do not appear. So it's disappointing that the court feels that it can qualify this absolute right.
LOPRESTI: Well, given that the ruling was not unanimous, the six in favour, three against, shows some dissent and division on this issue. Does that surprise you?
LINDSEY: Well no, again I think there was a great deal of tension within the court. The court took this very seriously. It heard a very large number of witnesses. The judgement itself is 500 pages. The gossip in Jakarta legal circles has it that these splits between the judges continued right up to the last moment and some argued that this decision represents a sort of compromise. I say it's a compromise, because although the death penalty is still retained, the court is urging a great deal of restraint in its application in the future.
LOPRESTI: Now the judges have ruled on a ten year moratorium. What can you tell us about that, Tim?
LINDSEY: Specifically, what the court said is that the death penalty remains constitutional, but that it should be reserved as an alternative or special punishment. In the future, and more specifically, over the next 10 years, when the death penalty is imposed, it should be commuted to a life sentence or 20 years.
LOPRESTI: That means those already facing execution, will be put to death?
LINDSEY: Yes, the court then went on to say, for the sake of legal certainty, those people who are already on death row should be executed.
LOPRESTI: Doesn't that open up a whole can of worms in terms of consistency and justice?
LINDSEY: Well it does. It creates a situation whereby those who apply - and I'm speaking here in particular about the two Indonesian women who joined the three members of the Bali Nine for this application. They are also on death row for narcotics offences. They have secured this moratorium and restraint on the death penalty. For cases in the future, if the court's recommendation is followed, death penalties will be transformed to life in jail or 20 years, but they will get no benefit of it themselves. This is a broader problem for the Constitutional Court. It has been absolutely consistent since its first decision that its decisions may not be applied to alter existing sentences. It only applies forward in time, which means really that anybody going to the court, any successful applicant, gets no benefit from it themselves.
In the case of the Bali Six, that is the six members of the Bali Nine on death row now, the result is very arbitrary. They, and others on death row, including the Bali bombers, may now be executed while those in the future will go to jail, simply because of what is essentially an arbitrary distinction in chronology. Now if the question of whether you live or die is dependent on an incident of chronology and timetable rating to your apprehension, that does not seem to have anything to do with the merits or justice of the situation.
LOPRESTI: And, could that become some kind of basis for a final appeal to the Supreme Court?
LINDSEY: Yes, the question now is what then for those who are already on death row? In the cases of the Bali Six specifically, they still have an appeal. The final stage judicial review or PK in the Supreme Court. They can pursue that. They'd have to argue errors in their conviction.
I think the chances of success are very poor. Having exhausted all their judicial alternatives, the only thing left for them is to seek clemency from the president. Now this decision actually offers a slim ray of hope for them. They could argue that the manifest injustice of an arbitrary process which saves those from execution who happen to have been arrested after the constitutional court decision should be taken into account by the president. Whose to know whether that will work? It would seem to have a lot of merit from a humane point of view, but whether it can overcome the politics of enthusiasm for execution in Indonesia and President Yudhyono's statement several times that he would never use his power of clemency in favour of narcotics offenders, we'll have to wait and see.
