Sunday, 3 June 2007

Bali 9 challenge may win and fail

The current constitutional challenge to three of the Bali 9 death sentences may not be enough to save their lives - even if they win.

Andrew Chan, Scott Rush and Myuran Sukumaran have taken the case against their death sentences for heroin smuggling to the Indonesia's Constitutional Court.

They are challenging the validity of laws used to sentence them to death despite a guarantee of the 'right to life' in the country's constitution.

Professor Tim Lindsey, Director of the Asian Law Centre at the University of Melbourne, wrote about the significance of the case in articles published in The Australian in March and The Herald Sun in May.

He said the Constitutional Court was "neither a quick fix, nor the end of the road" for the three men.

The eventual impact of the case may turn on how Indonesia's constitution is enforced in its judicial system, which is based on the Napoleonic model inherited from the Dutch former colonial ruler.

"In some European-tradition systems, the authority of constitutional courts has often been tightly restricted to constitutional review, sometimes preventing them from hearing appeals from other courts or reversing their decisions," he wrote. Indonesia's Constitutional Court "fits squarely into this category".

Professor Lindsay said the current cases were not "appeals", asking the court to overturn a previous decision of another court. They were rather " 'in principle' challenges to the constitutionality of statutes - in this case, the drugs legislation under which the Bali Nine were convicted".

Even if they won their challenge though, the Constitutional Court had said "its judgments cannot be applied to earlier decisions of other courts". Such a decision would make the death penalty unconstitutional from that point on, but "existing sentences would not be altered".

"This approach is intended to give certainty to court decisions and prevent constitutional reviews from becoming de facto appeals," Professor Lindsey said.

Legal, but harder
However, he said a constitutional win would give their lawyers further impetus for further appeals, and increase the political pressure against the executions.

He wrote in The Herald Sun: "It is hard to imagine a democratic government that would have the nerve to carry out a technically legal execution when the Constitutional Court had declared the death penalty contrary to the Constitution.

"It might be that the Indonesian Government would unilaterally agree to suspend all executions."

Even though President Yudhoyono has said he would not grant clemency to drug offenders, a court decision "outlawing future executions would offer him a way out" by sparing Indonesians and foreigners on death row.

Given the case's challenge to any use of the death penalty in Indonesia, Professor Lindsey concluded in The Australian that the court judges were aware their decision "will be one of the most important they will make, for Indonesians and foreigners alike".

Related stories:
Australians appeal Bali death sentences -- 02 May, 2007
Firing squad for six of Bali nine -- 10 September, 2006
Bali 9 death sentence confirmed -- 26 April, 2006

1 comment:

Gaetano said...

Universal Moratorium on the Death Penalty -- 16 Nobel Prize Laureates Appeal to the Italian Government with a urgent and immediate goal: ensuring the resolution for the universal moratorium is presented to the current General Assembly, despite new international events that might in fact jeopardise it.
Sign online here: http://www.radicalparty.org/moratoriumnow/form.php?lang=en
At midnight on April 16, Marco Pannella's non-violent initiative (that started on March 21) turned into an indefinite hunger strike. Sergio D'Elia, Valter Vecellio, Guido Biancardi, Lucio Bertè and Claudia Sterzi are also joining the fight in such an important phase. Our goal is to prevent the universal moratorium on the death penalty from being postponed to next year, as has happened for the past 13 years.
This fight is absolutely necessary and very urgent, as the moratorium is on the verge of being jeopardised, even abandoned. The moratorium is an objective very dear to the Radicals, especially Hands Off Cain and the Transnational Radical Party. The moratorium was initially embraced by the Italian Parliament. Later, a solemn commitment was made by the Italian Government on January 2, 2007, which was then supported by the European Parliament as well, and with an extraordinary majority.
Parliaments, Governments and a strong popular opinion were all moved into action by the "scandalous" execution of Saddam Hussein. The urgent and immediate goal: ensuring the resolution for the universal moratorium is presented to the current General Assembly, despite new international events that might in fact jeopardise it.
This is what is being discussed on a daily basis. Errors and delays have certainly taken place but it is still possible that they can be overcome and the moratorium will finally be achieved.
The alternative to our non-violent initiative is to accept yet another indefinite postponement, or a betrayal such as the one we received in 1999. We were recently reminded of this episode by Francesco Paolo Fulci, the influential Italian Ambassador to the UN at the time. The UN was given the order "from Brussels" to withdraw the resolution for the moratorium, a resolution that had already been submitted and had the certainty of being approved.
As people who believe in non-violent means, we have specific responsibilities and we will help our Government to reach the goal set by the Parliament, and later embraced by the Government itself. We are incited to act by the hope and the certainty that non-violence is the most effective tool to support the Government to fulfil the commitments it has made.