CONSTITUTIONAL COURT BEGINS BALI BOMBER PROCEEDINGS

C O N F I D E N T I A L SECTION 01 OF 02 JAKARTA 001737

SIPDIS

DEPT FOR EAP, EAP/MTS, EAP/MLS, S/CT, INL FOR
BARCLAY/ROESS/BUHLER
DOJ FOR CRIM AAG SWARTZ, DOJ/OPDAT FOR
LEHMANN/ALEXANDRE/BERMAN
DOJ/CTS FOR MULLANEY, ST HILAIRE
FBI FOR ETTUI/SSA ROTH
NCTC WASHDC
NSC FOR E.PHU

E.O. 12958: DECL: 09/12/2018
TAGS: PGOV PTER KJUS ID AS
SUBJECT: CONSTITUTIONAL COURT BEGINS BALI BOMBER PROCEEDINGS

REF: A. JAKARTA 1628

B. JAKARTA 1582

JAKARTA 00001737 001.2 OF 002


Classified By: Pol/C Joseph L. Novak, reasons 1.4(b+d).


1. (C) SUMMARY: Indonesia's Constitutional Court has begun
hearing the three Bali bombers, last-ditch appeal. The
three (via their lawyers) have claimed that execution by
firing squad, the constitutionally mandated method of
execution, is "torture." Representatives from the Indonesian
government have asked the Court to deny the appeal. The
Supreme Court--which has parallel powers--has already turned
down all the bombers' appeals. It is not clear how long it
will take the Constitutional Court to decide this matter.
The GOI has already announced that the three will not be
executed during Ramadan. END SUMMARY.

PROCEEDINGS BEGIN


2. (SBU) On September 11, the Constitutional Court began a
plenary hearing regarding the constitutionality of execution
by firing squad. Abdul Mukhtie Fadjar, the newly elected
Deputy Chief Justice (ref B),presided over the first
session. The case was brought to the Constitutional Court by
the Bali bombers, lawyers, who have stated that death by
firing squad was torture (ref A). (Note: The three
terrorists, Amrozi, one name only, Imam Samudra and Ali
Gufron, are on death row, incarcerated on an island prison
located off of Central Java. They were given death sentences
for their roles in the October 2002 Bali bombing.)

"SHOT TO THE HEART" METHOD -- IS IT TORTURE?


3. (SBU) Before the Constitutional Court, the lawyers
claimed that execution by firing squad, the legal form of
execution in Indonesia, was "torture" because there was "a
(time) gap" between the shot to the heart and death. The
lawyers argued that during this gap the executed prisoner
felt pain, which made this form of execution
unconstitutional. The bombers requested that they be
beheaded instead as they believed this form of execution was
more in line with Islamic precepts.


4. (U) The Bali bomber's attorneys also claimed that the law
regarding executions was enacted undemocratically: as the
result of an authoritarian government and adopted via a
decree. While the GOI representatives acknowledged the
origins of the law, they explained that the decree passed a
legislative review and was legally and constitutionally
upgraded to a law.

GOI PRESSES BACK


5. (SBU) Andi Mattalatta (Justice and Human Rights
Minister),Abdul Bari Azed (Secretary General of the
Department of Justice and Human Rights),and Qomaruddin (one
name only--Director of Litigation and Legislations of the
Department of Justice and Human Rights) represented the
government of Indonesia at the hearing. Mattalatta, in
statements to the press, said he asked the Constitutional
Court to deny the Bali bombers, appeal. He elaborated that
the method of execution was the most direct and immediate
available and that pain should not be considered torture, but
"an inevitable consequence of dying."


JAKARTA 00001737 002.2 OF 002


A TEST FOR CONSTITUTIONAL COURT


6. (SBU) It is not clear how long it will take the
Constitutional Court to decide this matter. The GOI has
already announced that the three will not be executed during
Ramadan.


7. (C) Given the changing composition of the court, there is
debate on how the court will decide the case. On August 19,
the justices elected Mohammad Mahfud Mahmodin and Abdul
Mukhti Fadjar as the new chief and deputy chief justices. Of
the eight justices sitting on the panel during the September
11 session, three judges presiding in this case--Akil
Mochtar, Maria Farida Indrati, and Achmad Sodiki--are new to
the court.


8. (C) The proceedings on the Bali bombers will serve as a
barometer of the views of the new justices of the
Constitutional Court. Although the new court has already
begun hearing cases since the new members were sworn in on
August 21, this is the first case to attract serious
attention. Fritz Siregar, a Constitutional Court clerk, told
poloff that he was no longer able to predict rulings given
the change in composition of the Constitutional Court judges
and he could not speculate whether the case would be decided
quickly.

HUME