Decision no. 2-3/PUU-V/2007 (2007) (Indonesian Constitutional Court).

• Author: Zerial, Natalie
• Position: Human rights

Introduction

After the fall of President Suharto's authoritarian 'New Order' regime in 1998, Indonesia's legal and political systems underwent a seismic process of reform (the 'reformasi eta') (1) In less than four years, the 1945 Constitution of the Republic of Indonesia ('Constitution') (2) was amended no less than for four times, including the introduction of a set of human rights clauses in chapter XA that transformed Indonesia's disparate constitutional human rights protections into a comprehensive human rights framework. (3) The introduction of a constitutional human rights regime placed Indonesia in a somewhat unique and visionary position in a region that has been internationally notorious for its suspicion of 'Western' style rights regimes and where few countries have committed to either the core international human rights conventions or comprehensive internal human rights laws. (4) As a consequence, the work of Indonesia's fledgling Constitutional Court has been, and will continue to be, of interest to many within the region as a body of human rights jurisprudence offering unique insights into the ways in which human rights may be interpreted and applied within the Asia Pacific and Southeast Asian contexts.

The court's decisions have already been of more than passing significance to Australia, with two judgments having particular resonance. The first of these was the Constitutional Court's decision in 2004 regarding the constitutionality of the prosecutions of the Bali Bombers. (5) The second important decision for Australia, and the subject of the present note, was the court's decision in 2007 to uphold the constitutionality of the death penalty in the context of an appeal made by Andrew Chan, Myuran Sukumaran and Scott Rush, three of the Bali Nine who had bee caught smuggling heroin into Bali in 2005. (6).

In the process of reaching its judgment in that decision, the judges heard a panoply of expert evidence and traversed philosophy, sociology, history and religion in addition to Islamic, secular Indonesian and international law. In this context it is impossible to cover all the issues raised by the case, and as a consequence this case note will focus on the ways in which the judgment reflects a cultural and regional perspective on international human rights law, including the light it throws on the 'Asian values' debate concerning human rights. This note will consider in particular how the court approached the balance between the rights of the individual and the rights of society, and the influence of religion on various aspects of the judgment. The note will also discuss the utilisation and constitutional interpretation in a framework that conceived of the human rights aspects of Indonesia's Constitution in a global rather than merely national context.

1. Background

   1. The Bali Nine

      On 17 April 2005, nine young Australians, all in their late teens or twenties, were arrested in Bali and charged with trafficking commercial quantities of heroin, (7) an offence that may be punished by the death penalty under Indonesian law. (8) At their original trials, the seven 'drug mules', Matthew Norman, Si Yi Chen, Tan Due Thanh Nguyen, Renae Lawrence, Scott Rush, Michael Czugaj and Martin Stephens were sentenced to life imprisonment. (9) The remaining two, the 'ringleader', Andrew Chan and Myuran Sukumaran, were both sentenced to death by firing squad.

      At first set of appeals resulted in the life sentences originally imposed on Lawrence, Nguyen, Chen and Norman being reduced to twenty year sentences, while life sentences for Czugaj and Stephens were upheld. However, in a subsequent appeal, during which prosecutors sought to have the original life sentences reinstated, the court unexpectedly increased the sentences of Rush, Nguyen, Chen and Norman to death.

      The imposition of the death penalty for these four had come at an unexpectedly late stage of the appeal process, and at a high level of the Indonesian court hierarchy, leaving few options open for challenging it. With limited rights of appeal available, Rush chose to join with Chan and Sukumaran in their attempt to challenge the constitutionality of the death penalty in Indonesia before Indonesia's Constitutional Court, a petition that ultimately failed for the reasons discussed in this note.

      Meanwhile, Norman, Chen and Nguyen sought to have their sentences reviewed and, in 2008, had life sentences reinstated. (10) It is still possible for Rush, Chan and Sukumaran to have their sentences reviewed. In the face of the revised sentences for Norman, Chen and Nguyen, lawyers are particularly hopeful that Rush will also have his death sentence reduced to life, as Rush is now the only 'drug mule' facing the death sentence.

   2. The Indonesian Legal System and Human Rights

      The Indonesian legal system is a fascinating product of a diversity of influences, including vestiges of the era of Dutch colonialism, adat (customary laws), Shari'ah law, as well as international legal standards that have had particular influence in the reformasi era. (11) Since 1945 this syncretic legal system has been underpinned by the pancasila' a set of five principles, which broadly translate into the belief in God, humanitarianism, Indonesian unity, representative democracy and social justice. These together are an attempt to enforce a unified, national character onto a heterogenous population. (12) Under Suharto, pancasila was considered the ultimate source of law; under the legal order post reform asi it. was enfolded into the Constitution, which continues to play an integral part in its interpretation (13)

      The pancasila always carried humanitarian overtones and the Constitution included various human rights. However, a comprehensive human rights regime did not exist in Indonesia until the reformasi occurred, human rights being one of the 'three pillars' upon which the process of reform was based (the other two being democratisation, and the rule of law). (14) The articles introduced into the Constitution during this period are contained in the new chapter XA, arts 28A-J. The ones that are particularly relevant in the present case are arts 28A, I and J.

      Article 28A of the Constitution states that 'every person shall have the right to live and to defend his/her life and living'. Article 281 states that:

      The right to life, the right not to be tortured, the right of freedom of thought and conscience, the right to have a religion, the right not to be enslaved, the right to be recognized as a person befor the law, and the right not to be prosecuted under retroactive law shall constitute human rights which cannot be reduced under any circumstances whatsoever. Article 28J states that:

      (1) Every person shall have the duty to respect the human rights of others in the orderly life of the community, nation and state.

      (2) In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.

      It is...