Indonesia: Right to life and execution

In a setback for human rights in Indonesia, a senior court has ruled the death penalty is not incompatible with the Constitution's guarantee of the right to life.

On Tuesday the Constitutional Court rejected a challenge by five people sentenced to death for drug trafficking.

Australians Andrew Chan, Myuran Sukumaran and Scott Rush were seeking a ruling against their sentence for an April 2005 attempted heroin smuggling operation. The three had been joined in their application by two Indonesian women, Edith Sianturi and Rani Andriani.

The court found 6-3 that the right to life was not absolute and had to be balanced against the rights of the victims of drugs.

Reports said the judges dealt extensively with the effects of drugs in their decision.

The judges' decision said death sentences were "not against the constitution, [and were] not violating international obligations".

Professor Tim Lindsey, an Australian expert on Indonesian law, said the court "stated that all existing death sentences should be carried out", a blow for the five making the application.

Amnesty International researchers believe there are over 90 prisoners currently under sentence of death in Indonesia.

Some hope for future cases
However Tim Lindsey said, according to initial reports, the judges had argued there should be a 10-year moratorium on further executions, even though the penalty was constitutional.

"During this 'trial period', they said, all new death sentences should be commuted automatically to life in jail," he wrote.

He described this as "a tentative step towards abolishing the death penalty in that country".

"The good news is for human rights in Indonesia and the beginnings of a move to bring Indonesia into line with the global trend towards abolition of the death penalty."

No challenge by foreigners
The judges opened their decision with a ruling that foreigners did not have standing to challenge the constitution, dismissing the appeal by the three Australians.

In part the application brought Australian and Indonesian cases together to neutralise this argument, ensuring the application would be considered in the event the foreign cases were thrown out.

A win in the Constitutional Court would not have overturned the death sentences already in place, but it would have strengthened their arguments in further appeals.

The three can now make a final appeal on points of law to the Supreme Court.

Three other Australians involved in the same smuggling attempt are awaiting the outcome of their Supreme Court appeal.

If Supreme Court appeals were unsuccessful, the six could appeal for clemency to President Yudhoyono, who has often said he would not overturn death sentences for drug offenders.

"Extreme penalty" out of step
Human rights organisation Amnesty International said the decision went against conclusions of a key United Nations' expert on the death penalty and "a worldwide trend towards restricting and abolishing the death penalty".

"It is particularly disappointing that this ultimate and extreme penalty is now being upheld," said Louise Vischer, Coordinator of Amnesty International's Asia Pacific Anti Death Penalty Regional Project.

"It is legitimate for the Indonesia government to take appropriate law-enforcement measures against drug offenders but there is no scientific evidence showing that the death penalty deters would-be traffickers more effectively than other punishments."

The organisation appealed for all death sentences in Indonesia to be commuted.

Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions said in a report to the General Assembly that, where it is used, the death penalty should be restricted to the "most serious crimes".

He found the "most serious crimes" do not include drug offences.

Related stories:
Bali 9 challenge may win and fail -- 03 June, 2007
Drug penalty violates international law -- 06 May, 2007
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