Comment

No ambiguity in Indonesia's law

Love is the motive, justice is the instrument. Article 28A, 28-1 August 18,1945 of the Constitution of the Republic of Indonesia provides that the rights to life, free of torture are "fundamental human rights that shall not be curtailed under any circumstances".

Indonesia has a constitution that includes a human rights regime, which is more than Australia can claim. However it is the threat that the instruments of justice will be 12 rifles, (under the Penal Code of Indonesia. Art 11. 1915 as amended February 27,1982), three of which will be loaded with live bullets, that has the population on their toes and politicians like Abbott with a foot in his mouth.

Prime Minister Tony Abbott and Indonesian President Joko Widodo: Indonesians have taken to Twitter to express outrage at ...
Prime Minister Tony Abbott and Indonesian President Joko Widodo: Indonesians have taken to Twitter to express outrage at Mr Abbott. Photo: AFP

If ever there was a time for careful, calibrated diplomacy, when saving face for President Joko Widodo is the paramount concern, if ever there was to be a commutation of the death sentences, where two lives are on the line, it certainly was not the time to make empty threats or boast of favours past. Abbott's promise to deliver an "absolutely unambiguous response" to any executions is as empty as the fist he held in the air. It was embarrassing and unnecessarily provocative, as it was dunderheaded.

There is always strong public appeal in the spilling of blood. George W. Bush boasted of 39 executions in Texas under his governorship. Roman emperors gave their subjects buckets of blood. There is always a strong appetite for the crucifixion and sacrifice of others. A new president, caught in the coattails of leadership of former generals, corruption on every corner, a massive population and minimum wages, might be tempted to distract attention by enforcing the law, by not exercising his power for clemency in order to be perceived as strong. There are no votes in assisting drug dealers and every reason to beat the drum. In this context, capital punishment serves to steady civil unrest, in a short-term practical way. It displays to the world and to Indonesians that President Joko is no Joker.

Indonesia is an enormous hive of bees living right over our heads. It requires the delicacy of a beehive keeper and a high calibre surgeon to deliver the goods. We need them. They don't need us. There are 300 million of them,and 22 million of us. When we were locking up their poor Indonesian fisherman who wandered into our territorial waters, duped by sophisticated middlemen into carrying refugees for $100, they didn't rage into the night, bully us with unspeakable retaliation. Our Labor Government passed mandatory jail terms for persons in the position of those fishermen of up to five years, which was called uncivilised by our own judiciary. The lesson is to step very lightly in the affairs of another nation, especially if there's nothing in it for them. 

The Constitutional Court in Indonesia delivered a sophisticated judgment in 2007 on the Constitutional Rights of Andrew Chan and Myuran Sukumaran to avoid execution for drug dealing. In a peculiarity of history Scott Rush (whose father alerted the AFP who in turn alerted the Indonesian authorities) a mule in the drug train known as the Bali Nine, had appealed his life sentence, only to be given the death penalty by the appeals court. He joined the other two ringleaders in the Constitutional Court challenge. The decision was given on October 30, 2007. The issues were the constitutionality of the death penalty and the standing of Australians or foreigners to challenge Indonesian law.

The US Supreme Court upset the Bush and Obama administrations by finding that foreigners in foreign jails held by US forces could also bring claims of unconstitutionality in US courts. On the death penalty issue, the court was eloquently divided. The majority upheld the right to execute, rationalised the right to life with a "just and fair" limitation by a fair trial. It also turned the spotlight on the individual who chose to engage in such acts that are punishable by death. The court said it was the decision by Chan and Sukumaran that led to their executions, rather than the policy of the state. The court also noted that Indonesia was a ratified party to the International Covenant on Civil and Political Rights, where the right to life is not an absolute and in the constitution incorporated the covenant's exceptions. Notable exceptions are children under 18, unless proven they knew the difference between good and bad; pregnant women cannot be executed until 40 days after delivery; the mentally ill and mentally retarded are also exempted from capital punishment. The court found that most treaty obligations recognised the right of countries to execute for serious crimes.

The Constitutional Court relied on the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances which allows ratifying  states to "adopt more serious measures where considered desirable or necessary". It noted the preamble to the UN Drugs Convention, that drugs "adversely affect the economic, cultural and political foundations of society" and cause "a danger of incalculable gravity".

The court recommended that criminal law be reformed to impose capital punishment with a probation period of 10 years; if the convict indicates good behaviour it could be changed to 20 years or life. It is clear that this reform has not happened.

In a few days Chan and Sukumaran can elect to either kneel, stand or lie down together to be shot under the law. They can elect to be blindfolded or not. There will be a circle drawn on their chests to assist the riflemen to aim for the heart. If by chance they miss the commander will approach and shoot them behind the ear, according to law.

 Whatever Abbott says about being  "absolutely unambiguous" will finally become clear.