Bali nine members lodge application to challenge Indonesian Constitution

Bali Nine members Scott Rush, Andrew Chan and Myuran Sukumaran, convicted in Indonesia of an attempt in 2005 to smuggle more than 8kg of heroin into Australia, have all lodged applications with Indonesia's Constitutional Court, claiming the country's death penalty is unlawful. The court will hand down its decision soon, but some law experts say that even if the applicants win they may not be saved from the firing squad.

The Director of the Asian Law Centre at Melbourne University, Professor Tim Lindsey, said the applications of the "Bali Three" were part of a legal process that will decide if the death penalty is unconstitutional under Indonesian law, however, he says that even if they manage to convince Constitutional Court judges to amend the constitution they may still face the firing squad.

"There are six members of the Bali nine facing the death penalty, three of them have opted to go to these courts (to) argue whether the right the to life, which is contained in article 28i of the Indonesian constitution, means that the death penalty is now unconstitutional. If they succeed the courts make a declaration that from the moment of its decision onwards the death penalty is unconstitutional because it breaches that right to life. But that will not necessarily affect the existing sentences - the death sentences - imposed on those six," he said.

Prof. Lindsey explained why those currently serving time on Indonesia's death row may still face the death penalty.

"Constitutional Courts, like Indonesia's, often took the view that the decisions apply forward in time from the moment of their decision so all existing convictions will stand.

Prof. Lindsey said that the decision that the Constitutional Court reaches will be final and that while the amendments may not be retrospective he says the court's ruling may allow President Susilo Bambang Yudhoyono to grant the death row members of the Bali Nine clemency.

"That might be enough for him to step back from his firmly held position that he wouldn't exercise his power of clemency in favour of drug smugglers. He could argue that the Constitutional Court's decision has altered the circumstances so dramatically that he'd be entitled to do so... It's critical because Constitutional Court decisions are binding and there's no appeal from them so it will be a once and for all time decision... The Constitutional Court decision, if they win it and they may not, would really add a great deal more optimism to any assessment of their chances."

Prof. Lindsey said he is unsure of when the court will hand down its decision, but he expects it to be soon. He said the interpretation of the constitution will ultimately decide the fate of all of those waiting on Indonesia's death row.

"We don't know when it will hand down its decision but it is not a court that is subject to a great deal of delay. The only caution in this is that the words 'right to life'... there's no certainty that that will be interpreted to mean that executions are prohibited. Those words have been interpreted in other countries to allow executions to go ahead... the argument could go either way."

Newshawk: http://www.napnt.org
Pubdate: Mon, 6 April 2007
Source: Australian Broadcasting Commission (Australia-Web)
Reporters: (on air ) Alex Sloan and (online) Nicholas Kittel
Website:http://www.abc.net.au/canberra/