INDONESIAN CONSTITUTIONAL COURT UPHOLDS DEATH

UNCLAS SECTION 01 OF 02 JAKARTA 003043 SIPDIS SENSITIVE SIPDIS DEPT FOR EAP, EAP/MTS, DRL, S/CT, INL FOR BOULDIN NSC FOR EPHU DOJ FOR CRIM AAG SWARTZ, DOJ/OPDAT FOR LEHMANN/ALEXANDRE/BERMAN DOJ/CTS FOR MULLANEY, ST HILAIRE FBI FOR ETTUI/SSA ROTH NCTC WASHDC E.O. 12958: N/A TAGS: PGOV KJUS SNAR CASC PTER ID SUBJECT: INDONESIAN CONSTITUTIONAL COURT UPHOLDS DEATH PENALTY REF: JAKARTA 2939 JAKARTA 00003043 001.2 OF 002 ¶1. (U) This message is Sensitive but Unclassified -- Please handle accordingly. ¶2. (SBU) SUMMARY: In a highly anticipated October 30 ruling, the Indonesian Constitutional Court affirmed the constitutionality of capital punishment under Indonesian law. The ruling came in a case involving two Indonesians and three Australians sentenced to death for narcotics trafficking. The Court's urging that all summary death sentences "be carried out as soon as possible" has implications for other important cases, including the Bali bombers. END SUMMARY. ¶3. (U) TWO PETITIONS: Defense lawyers for three young Australians and two Indonesians petitioned Indonesia's Constitutional Court to review the constitutionality of the death penalty handed down in their sentences. Separate petitions were filed for the Indonesian and the Australian defendants. The petitions argued that capital punishment violated the right to life guaranteed in Indonesia's 1945 constitution and was incompatible with international norms. The five are part of a group, dubbed the "Bali nine" by Australian media, who were arrested in Bali in April 2005 and convicted of drug offenses on the basis of a Indonesia's 1997 narcotics law. Of the nine, six were sentenced to death, two received life imprisonment and one was given a 20-year prison sentence. The law indicates a range of penalties for narcotics offenses but specifies the death penalty for production and trafficking of drugs. ¶4. (U) SPLIT DECISIONS: The 6-3 decision, presented by Chief Justice Jimly Asshiddiqie, addressed only the Indonesians' petition and was released in a 469-page document on October ¶30. The court rejected the Australians' petition on the grounds that foreigners had no legal position to contest the constitutionality of Indonesian laws. The court noted, however, that other legal avenues, including appeal to the Supreme Court, remained open to the Australians. In dissenting positions, three justices argued against the death sentence in principle. Two justices held that capital punishment violated fundamental human rights, while a third justice argued that the social and legal objectives of the law could be achieved with other penalties short of capital punishment. In a separate dissenting opinion, a different combination of three judges argued that the Australians were entitled to the same constitutional review as the Indonesians. ¶5. (U) INTERNATIONAL PROTOCOLS: The majority opinion also found that international protocols such as the International Convention on Civil and Political Rights (ICCPR) allowed ratifying states to impose the death penalty. "The right to life cannot be weakened, except by court decision," one justice explained in delivering his judgment, and in serious cases such as narcotics trafficking, the penalty was justified. The majority opinion noted that abolition of capital punishment had not yet become a universally accepted norm. ¶6. (SBU) IMPLICATIONS FOR BALI BOMBERS: A finding for the defendants in this case could have invited a rash of appeals from others on death row. As of the end of 2006, there were 134 persons awaiting execution in Indonesia, according to the latest publicly available statistics. Among these are the three Bali Bombers in central Java, whose legal appeal options have been exhausted (reftel). The implications of the Court's recent decision for these other cases are significant. Perhaps with that in mind, Chief Justice Jimly stated that "for the purposes of fairness, the Constitutional Court recommends that all those sentenced to death who have no further appeals available be executed as soon as JAKARTA 00003043 002.2 OF 002 possible." HUME