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.
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
Tuesday, 30 October 2007
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.
Monday, 29 October 2007
Kunio Hatoyama did not say what a better alternative might be, but the remarks suggest he may be considering a change to lethal injection.
Japan currently executes prisoners by hanging.
"I am fully aware that 'death by hanging' is written in the criminal code," Hatoyama said on Wednesday after a parliamentary committee meeting, according to a Reuters report.
"A square part of the floor opens up and they fall with a thud.
"I honestly wonder if there isn't a more tranquil way of doing this."
Lethal injection is under seige in the United States, with states reviewing the method following a number of botched executions and legal challenges claiming it is an intensely cruel and extremely painful means of killing a prisoner.
In March, Indonesia's Attorney-General said the country might replace execution by firing squad with lethal injection.
An increasing number of provinces in China have moved to lethal injection and Viet Nam is reportedly considering the move.
"No one" wants to sign the order
Last month Hatoyama sparked controversy when he suggested prisoners should be hanged automatically after their sentences were finalised, without the justice minister having to sign the order.
"The law should be abided by," he told a media conference in late September. "But no one wants to put his signature on an execution order.
"I wonder if there is any way not to delegate the responsibility solely to the justice minister."
He said there should be an "automatic and objective" procedure for executing prisoners without the minister's involvement.
He later said he wanted to set up a study group to examine the country's system for ordering executions.
Japan: New minister will approve hangings -- 4 September, 2007
Japan executed mentally ill man -- 26 August, 2007
Japan: Lawyers condemn three more executions --24 August, 2007
Urgent move to stop executions in Japan -- 8 August, 2007
Long wait, sudden death in Japan -- 28 August, 2006
Friday, 12 October 2007
The Hankyoreh reported about 300 human rights activists and religious leaders took part in a ceremony in favour of abolishing the death penalty, held at Seoul's Korea Press Center on 10 October, the World Day Against the Death Penalty.
Former president Kim Dae-Jung and 2000 Nobel Peace Prize Laureate joined the call for abolition.
"The dignity of life is a natural right that nobody can infringe and demolish," he said.
No-one has been executed in South Korea since Kim was elected president in February 1998, although people continued to be sentenced to death.
The Korea Times reported in September that twenty organisations, including Amnesty International and Lawyers for a Democratic Society, were campaigning for the government to support a resolution for a moratorium on executions set to be debated at the 62nd session of the United Nations General Assembly.
"The adoption of such a resolution by the U.N.'s principal organ would be an important milestone toward the abolition of the death penalty," the Association for the Abolishment of the Death Penalty said.
The Association said it was holding a 100-day campaign to encourage the government to support the resolution.
Time to 'finish the job'
South Korean newspaper The Hankyoreh said in an editorial that although there were now 64 people on death row, the executive government had been "right" to not approve the sentences being carried out.
The newspaper said the previous two governments had "tried in their own ways to have it abolished" and the current government seemed unlikely to carry out any executions.
But it said half the members in the last National Assembly signed an abolition bill that was never dealt with and 175 legislators in the current assembly have proposed a similar bill.
"It is time the National Assembly finish[ed] the job by legislating it out of existence," The Hankyoreh said.
It said justice systems were imperfect and the death penalty was in irreversible punishment, once carried out.
"Ultimately the decisions of the judicial system are made by people, and decisions by human beings can never be perfect.
"If someone is executed for having been found guilty and sentenced to die, there is no way to reverse that decision once the action has been carried out."
The newspaper also said some people think the death penalty is a necessary response for "perpetrators of particularly heinous crimes".
"However, if you look at studies of societies where it has been abolished, capital punishment does not especially have the effect of preventing heinous criminal acts.
"You question whether taking someone’s life because that person is a criminal is something that can be justified.
"It is for reasons such as these that some 90 countries have already completely done away with it, and close to 60 have more have moratoriums of one sort or another."
In February 2006 Kim, himself a former death row inmate, issued a statement arguing for the abolition of the death penalty.
"Capital punishment goes against the foundation of democracy," he wrote.
"Democracy regards the life of a human being to be the most cherished in the world, and to end a person's life even in the name of law clearly runs counter to the basic principle of human rights."
His said justice systems were prone to error, the death penalty was abused by dictatorships and it did not lead to a reduction in crime.
Kim was sentenced to death on sedition charges in 1980 by South Korea's ruling military government.
His death sentence was later commuted to life imprisonment and he was allowed to leave the country.
South Korea: death penalty not on 'roadmap' -- 19 February, 2007
Call for South Korea to show 'leadership' -- 27 June , 2006
South Korea death penalty hearing -- 10 April, 2006
South Korea: Kim Dae-jung's call for abolition -- 06 March, 2006
South Korea – former president calls for abolition -- 27 February, 2006
Positive signs in the Philippines and South Korea -- 22 February, 2006
Thursday, 11 October 2007
On the eve of the World Day Against the Death Penalty, the organisation urged the government "to actively move towards abolition of the death penalty to demonstrate its commitment to join the rest of the world" in the trend against executions.
The organisation said in a statement that the death penalty situation in Taiwan had improved since president Chen Sui-Bian made a commitment in 2000 to move towards abolition.
Following the end of martial law in 1987, the country had reduced the number of crimes punishable by death to 52.
TAEDP said the number of executions had reduced from 38 in 1997 to 0 in 2006, although as of October 2007 there were still 28 inmates on death row.
The organisation said, although Taiwan was not a member of the United Nations, as "a constituent of the global village" it would benefit from "thorough public debate on the death penalty from the perspective of human rights".
"In view of the global movement to abolish the death penalty, Taiwan – in its pursuit for a UN membership -- should take this opportunity to re-examine its commitment to the universal values of human rights that are upheld by the UN," the TAEDP statement said.
"Taiwan has not had any execution for almost two years, since the end of 2005.
"This is an opportune time for Taiwan authority to announce a moratorium as a first step to a holistic approach to total abolition by refining relevant laws and devising supportive measures.
"Taiwan should not be absent from this global movement."
Against death, protecting victims
TAEDP made three appeals to Taiwanese authorities addressing the death penalty and victims of crime:
1. Before a total abolition de jure of the death penalty, President Chen should deliver on his previous commitment to end the death penalty by announcing a moratorium in Taiwan. For inmates currently on death row, the president should pardon them or commute their sentence to life imprisonment.
2. The Minister of Justice should refuse to sign execution orders and should proactively engage in the amendment of relevant laws.
3. A government cannot relinquish its duty to protect victims of crime. Cabinet should devise a comprehensive system to protect them in collaboration with government agencies as well as social service organizations.
Executions in Taiwan
Source: TAEDP press release, 9 September, 2007
Torment on Taiwan's death row -- 15 May, 2007
Taiwan limits mandatory penalties -- 29 January, 2007
Abolition debate for Taiwan in 2007 -- 12 January, 2007
Taiwan: Death penalty benefit an 'illusion' -- 14 December, 2006
Taiwan working towards abolition? -- 21 February, 2006
Wednesday, 10 October 2007
The US-based organisation Murder Victims' Families for Human Rights (MVFHR) brings together victims of criminal murder, terrorist attacks and state killings to defend human rights and campaign against the death penalty.
On the World Day Against the Death Penalty, MVFHR has issued a powerful statement in support of the right to life and in favour of a moratorium on executions. The statement below was posted on their blog:
Murder Victims' Families for Human Rights is an organization of family members of homicide victims and family members of people who have been executed. As survivors with a direct stake in the death penalty debate, and as people who believe in the value of basic human rights principles, we join today in the call for a worldwide moratorium on executions.
The most basic of human rights, the right to life, is violated both by homicide and by execution. We call today for a consistent human rights ethic in response to violence: let us not respond to one human rights violation with another human rights violation. Let us recognize that justice for victims is not achieved by taking another life.
The Universal Declaration of Human Rights was inspired by victims, demanded by victims. It grew out of the suffering of millions of civilians murdered under the brutal regimes of the Second World War, and its adoption on December 10, 1948 was a way to honor the loss of those lives by asserting that such violations are neither moral nor permissible under any nation or regime.
Now, almost sixty years later, let us recognize that violations of human life in the form of the death penalty should not be permissible under any nation or regime. We call for a moratorium on the death penalty because the only way to uphold human rights is to uphold them in all cases, universally.
Today, on World Day Against the Death Penalty, the United Nations General Assembly is considering a resolution that will take us one step closer to fulfilling the aspiration of the Universal Declaration of Human Rights. As victims, we urge the members of the General Assembly to adopt the UN resolution for a universal moratorium on executions.
Australia's response to the death penalty in Asia became part of the unofficial election campaign yesterday, with both major parties competing to show how many conditions they could attach to their "opposition" to capital punishment.
The issue hit the headlines after a speech on Monday night by Robert McClelland, the Australian Labor Party's foreign affairs spokesman, committing a future Labor government to a consistent stance opposing the use of the death penalty and to "shrewd diplomatic activism" within the region.
The speech was criticised for its timing, coming four days before the anniversary of the 2002 Bali bombings, which killed 202 people, including 88 Australians. Three men in Indonesia currently face execution for organising the bombings after the final appeals against their death sentences were rejected in August and September.
The Australian Prime Minister and senior government ministers attacked the speech and claimed the Labor party proposed to use Australian diplomats to plead for the lives of the convicted Bali bombers.
On Tuesday opposition leader Kevin Rudd moved swiftly to distance himself from the speech and gave his spokesperson a humiliating public rebuke.
Mr Rudd said the speech was "insensitive" and a staff member in his office was being "counselled" for failing to raise concerns over a draft of the speech.
He said a future Labor government would not make diplomatic moves to argue for clemency in terrorist cases, but it would oppose the death penalty through multilateral channels at the United Nations.
Both the government and opposition said they would only intervene in individual cases involving Australian citizens facing execution.
Shadow foreign minister Robert McClelland addressed the Wentworth Human Rights Forum, giving a speech that had been cleared with the office of the opposition leader.
"Labor believes that supporting executions - even by a nation state - gives justification to all kinds of fanatical lunatics to take the lives of others in pursuit of their warped ideologies," Mr McClelland said.
"That is why, at the highest levels Australia's public comments about the death penalty must be consistent with policy. This is especially the case if we are going to tactfully and successfully drive a regional abolitionist movement."
Mr McClelland said a Labor government would launch a regional campaign against executions in the Asian region.
He criticised the Prime Minister for supporting "the executions of the perpetrators of the Bali bombings, Osama bin Laden and Saddam Hussein" while also claiming "Australia opposed capital punishment".
He also said Mr Howard's inconsistency in the cases exposed Australia to claims of hypocrisy and undermined diplomatic efforts to spare the life of Australian citizen Van Tuong Nguyen, who was hanged in Singapore in 2005.
He said a Labor government would be consistent in its public comments on the death penalty.
Prime Minister John Howard said the speech was an "extraordinary call by the Labor Party for the executions of the Bali Bombers not to take place".
He said the Labor Party's opposition to the death penalty was "an insensitive policy", and he highlighted other occasions when Mr Rudd had opposed executions.
"The idea that we would plead for the deferral of executions of people who murdered 88 Australians is distasteful to the entire community and I remind you that earlier this year, Mr Rudd, when Saddam Hussein was executed, expressed his continuing opposition to the death penalty imposed by other countries," Mr Howard said.
"We do not support the death penalty in Australia and my Government has consistently argued when Australians have faced the death penalty overseas for that penalty not to be applied.
"But what other countries do is ultimately a matter for those other countries, and particularly when people are under sentence of death for murdering Australians.
"I find it impossible myself, as an Australian, as Prime Minister, as an individual, to argue that those executions should not take place when they have murdered my fellow countrymen and women."
The Australian government's policy in recent years has been to claim that in principle it is 'universally and consistently' opposed to the death penalty, but in practice to argue only that Australian citizens should be spared the punishment.
In 2003 the Prime Minister told an interviewer that "everybody" would welcome the execution of Osama Bin Laden. More recently he expressed his satisfaction at the hanging of Saddam Hussein in Iraq and said the Australian government has no objections to the execution of the three Bali bombers.
Labor leader's reaction
Mr Rudd quickly attempted to neutralise reaction to his spokesman's comments, saying he would not use Australian diplomats to argue for clemency for terrorists and criticising the timing of the speech.
"I believe that the speech delivered last night was insensitive in terms of its timing," Mr Rudd said.
"I've indicated that to Mr McClelland this morning and he concurs with that judgement.
"When it comes to the question of the death penalty, no diplomatic intervention will ever be made by any government that I lead in support of any individual terrorist life."
He said he would only intervene on behalf of Australians facing execution overseas.
"We have only indicated in the past, and will maintain a policy in the future, of intervening diplomatically in support of Australian nationals who face capital sentences abroad."
Any campaigning against the death penalty would only be undertaken at the international level.
"On the wider question of the death penalty, the Liberal Party's policy, like Labor's policy, is identical, and that is our global opposition to the death penalty.
"In terms of the prosecution of that matter, that is best done multilaterally through the United Nations."
He did, however, later suggest that in order to build up a consensus against the death penalty over time he would "seek to engage regional states and other states in support of that proposition".
In August 2006, the Labor party's shadow Attorney-General Nicola Roxon MP said Australia should take stronger action against the death penalty.
She said in a statement that Australia should "advocate more strongly" for its neighbours and allies to abolish the death penalty, and any method of execution was "inhumane, no matter what the crime".
"Australia needs to use its position internationally and in the region to abolish the death penalty universally," Ms Roxon said.
On 3 December 2005, the day after Van Tuong Nguyen was hanged, then shadow foreign minister Mr Rudd said there was "a lot that Australia can do" to help abolish the death penalty worldwide.
He said Australia should "get behind" European efforts in the United Nations "to put in every effort to abolish this form of punishment, once and for all, throughout the world, and for all time".
He also called for consistent opposition to the death penalty.
"It is important that our policy is consistent. Labor policy, like the Liberal policy, worldwide, is opposed to the death penalty.
"And whether we are talking about individuals in Iraq or Indonesia or elsewhere, our policy has to be consistent."
Australia: Rudd would oppose death penalty -- 24 June, 2007
Australia 'should act against death penalty' -- 03 August, 2006
Tuesday, 9 October 2007
Amrozi bin Nurhasyim, Imam Samudra and Mukhlas (also known as Ali Ghufron) were convicted in 2003 for the bombings in Kuta, Bali, which killed 202 people.
The men had apealed to the Supreme Court on the grounds that the anti-terrorism law under which they were convicted was only passed after the bombings took place. In August and September the Supreme Court rejected their appeals.
"The verdicts say that the judges rejected the judicial review by the appellants Mukhlas and Imam Samudra and upheld the decisions by the previous courts," Supreme Court spokesman Nurhadi said in late September. An earlier court decision rejected Amrozi's appeal.
According to a BBC report, a court official said the men had provided no new evidence to challenge their convictions.
Supreme Court judge Djoko Sarwoko said there were no more legal procedures to delay the Attorney-General from setting an execution date.
However, as with earlier stages of these cases, there is now likely to be a period of delays and confusion, with the men saying they would not make further appeals on religious grounds, their lawyers indicating they would prepare for an appeal and government officials saying they were preparing to carry out the executions.
In early October Achmad Michdan, head lawyer of the Islamic Defence Team, said he would drag the process out as long as he could.
"We will lodge another appeal and ask that a proper examination of it be conducted," he said.
The government has said it would not execute the three until they had waived their right to seek presidential clemency.
"There must be a request for clemency - and if there is not, there must be a written statement that they really don't want clemency. We don't have that yet," Attorney-General Hendarman Supandji said.
The Indonesian government and the men's lawyers will also be watching closely for tthe Constitutional Court's decision in the case of three Australian convicted drug traffickers. The three have mounted a challenge to their death sentences, arguing the death penalty violates the right to life enshrined in the country's constitution.
None of the trio has expressed remorse over the attacks and they have repeatedly told journalists they welcome their execution.
After his appeal was rejected Mukhlas reportedly told a local journalist he was looking forward to his execution.
"This is the most wonderful moment for us because soon we will become martyrs," Mukhlas said.
According to an AFP report, a lawyer for the men said earlier this month that they were ready to die after signing a last statement reportedly vowing their deaths would lead to "hell for infidels".
"If we are executed, then the jets and drops of our blood will, God willing, become a ray of light for Muslims and become hell for infidels and hypocrites," said an extract from their statement published in the Koran Tempo.
In 2003 Australian Federal Police Commissioner Mick Keelty warned on ABC's Four Corners program that executing the men would turn them into martyrs and may further their cause.
"If you think about the motivation and the end gain for some of these terrorists, I mean by prosecuting them and giving them the death penalty might actually be serving them up exactly what they need to be, martyrs," Mr Keelty said.
Human rights appeal
Amnesty International has issued an urgent action appeal encouraging its supporters to write to the Indonesian government appealing for the sentences not to be carried out.
The appeal calls on the Indonesian government to immediately halt preparations for the executions and commute their sentences to life imprisonment.
It expresses "concern that the Law on Combating Criminal Acts of Terrorism, under which these men were sentenced to death, was applied retroactively to include all those involved in the Bali bombings, violating international criminal law and the Indonesian Constitution".
The appeal also calls on the government to commute the death sentences imposed on all of the estimated 99 people on the country's death row.
The human rights organisation said it "recognises the need to address serious crime, including murder, but is convinced that the death penalty does not provide a solution".
"There is no clear evidence that the death penalty deters crime any more effectively than other forms of punishment.
"Amnesty International opposes the death penalty unreservedly in all cases."
Bali bombers lodge appeals -- 08 December, 2006
Execution delay for Bali bombers -- 21 August, 2006
Bali bombers closer to execution -- 11 April, 2006