[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Jan. 22



INDONESIA:

Bali 9: hypocrisy, politics and courts play out in death row lottery



One of the strongest arguments against the death penalty is that its 
administration is fundamentally unfair. Too often, the question of who receives 
a death sentence and whether and when it is actually carried out becomes more a 
matter of politics than of facts and law.

This is certainly the case for the two Australians, Myuran Sukumaran and Andrew 
Chan, on death row in Indonesia. They find themselves at the centre of a series 
of complex political controversies, all of which could directly affect their 
chances of survival.

Sukumaran and Chan are the only members of the Bali 9 still sentenced to death 
for their role in attempting to smuggle 8.3 kilograms of heroin out of Bali to 
Australia in 2005. Indonesian President Joko Widodo has now rejected both 
Sukumaran's and Chan's pleas for clemency, leaving the pair facing execution by 
firing squad.

Clemency is last hope on death row

An application for clemency is usually made when the judicial process is 
exhausted. It is intended to be the last chance for a lighter sentence before 
execution takes place. The Chief Prosecutor's office has indicated they usually 
execute co-offenders together.

Jokowi's decisions on Chan and Sukumaran are consistent with recent statements 
he has made that he would not grant clemency to drug offenders. The death 
penalty is available in Indonesia for 17 offences but usually only imposed for 
drugs, terrorism and murder.

For decades the majority of executions in South-East Asia have been for drugs 
offences. Now Indonesian officials have said they aim to build a reputation for 
harsh treatment of drug offenders to match neighbouring Singapore and Malaysia, 
where, unlike Indonesia, death is mandatory in many drugs cases.

Jokowi's refusal to grant clemency also reflects a decision made in 2013 by his 
predecessor, Susilo Bambang Yudhoyono, to end the informal moratorium on 
executions he put in place after the Bali bombers (Imam Samudra, Mukhlas and 
Amrozi) were executed in November 2008. In 2013, executions resumed, targets 
were set and 4 prisoners met their deaths. Last weekend, 6 more were executed, 
including 5 foreigners.

A double standard for Indonesians abroad

Indonesia's efforts to prevent its own citizens being executed overseas 
therefore seem odd indeed. In recent years it established a taskforce and spent 
millions of dollars to hire lawyers and, where permitted, pay "blood money" to 
ensure that Indonesian domestic workers in countries including Saudi Arabia and 
Malaysia escape the death penalty.

This obvious double standard has drawn much criticism, including from 
Indonesian civil society. The government justifies it by drawing a clear 
distinction between, on one hand, its overseas workers - many of them maids who 
have murdered abusive employers - and, on other other hand, drug offenders, 
whom it categorises with terrorists as "mass murderers". This distinction has 
support in Indonesia, where a high-profile "war on drugs" policy has been in 
place for years and many locals rely on overseas workers for remittances.

However, it does make it much harder for Indonesia to run an in-principle 
argument in favour of the death penalty, as leading Indonesian human rights 
organisations such as NGOs KontraS (Commission for the Disappeared and Victims 
of Violence) and LBH (the Legal Aid Institute) have been arguing.

Many Indonesians still support the death penalty, including some active 
anti-drug NGOs. There is, however, a growing debate about whether it is still 
appropriate in an open liberal democratic state committed to human rights of 
the kind Indonesia claims to have become since Soeharto fell in 1998.

A question of politics as much as law

This ambivalence over how the death penalty sits with recognition of human 
rights is reflected in the "bob each way" decision the Indonesian 
Constitutional Court made in 2007. It held that execution is not inconsistent 
with the guarantee of right to life in its liberal post-Soeharto constitution.

However, the court also recommended that prisoners who have been on death row 
for 10 years and have shown reform and rehabilitation should have their 
sentences commuted to imprisonment.

Jimly Asshiddiqie, the Constitutional Court Chief Justice at the time, has 
recently complained that the government has completely ignored this part of the 
judgment. He has also indicated discomfort with his court's decision to uphold 
the death penalty, suggesting the time may be right to abolish it.

Sukumaran and Chan were arrested in 2005, and prison authorities have described 
them as reformed model prisoners. If the Constitutional Court's proposal was 
implemented they would have a strong argument for their death sentences being 
replaced by long jail terms.

As this suggests, Indonesia may be undergoing a slow transition towards 
abolition. Many newspapers, including the leading daily, Kompas, have published 
articles criticising Jokowi's decision to resume executions. But this shift in 
public opinion does not seem to big enough or moving fast enough to save 
Sukumaran and Chan.

It may not move Jokowi much either. Indonesian political observers say that 
while he is a strong democrat and anti-corruption reformer, he is personally 
morally conservative and not greatly focused on human rights issues.

They also say that Jokowi is under massive political pressure to match the 
decisive hardline "tough guy" image of his defeated presidential rival, former 
general Prabowo Subianto, who made much of "standing up" to foreign influences.

Jokowi lacks strong elite support and is fighting hard to build a workable 
coalition to overcome Prabowo's stranglehold on the national legislature, which 
has so far prevented any laws being passed. While granting mercy to Sukumaran 
and Chan might have helped Jokowi with the 2nd-rank challenge of building a 
relationship with Australia, he might well have seen it as too damaging for his 
own political survival.

Courts divided over appeal rights

Sukumaran and Chan's lawyers have announced they will soon lodge a 2nd 
application with the Supreme Court to re-open their case. This is known as a 
"PK" or "Reconsideration".

As might be expected, lawyers for the pair will argue that Sukumaran and Chan's 
rehabilitation should be taken into account. Indonesian authorities have said 
they will probably not execute while a related court case is pending, but the 
PK faces 2 problems. Both relate to political tensions between the 
Constitutional Court and the Supreme Court, Indonesia's judicial "twin peaks".

The Constitutional Court says there is no limit on the number of PKs a person 
may bring. The Supreme Court says only one is possible. The Supreme Court seems 
not to consider itself bound by the Constitutional Court, and may therefore 
reject Sukumaran and Chan's 2nd PK out of hand.

For the same reason, if the Supreme Court does consider the PK on its merits, 
it may pay little heed to the Constitutional Court's suggestion that after 10 
years' rehabilitation, death penalty sentences should be commuted. Discussions 
have been arranged between the 2 courts to resolve their differences, but so 
far without much success.

This all means that despite the huge effort being made by their Indonesian and 
Australian lawyers - and by the Australian government - Sukumaran and Chan's 
future hangs on matters that have little to do with the actual crimes they 
committed or their own conduct since then.

Whether Sukumaran and Chan are executed depends on how all these factors play 
out and, in particular, the timing. In Indonesia, as in most countries that 
execute, death row is little more than a grim lottery.

(source: The Conversation)