Cablegate: Indonesian Constitutional Court Upholds Death

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OO RUEHCHI RUEHCN RUEHDT RUEHHM
DE RUEHJA #3043/01 3041147
ZNR UUUUU ZZH
O 311147Z OCT 07
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6878
INFO RUEHBY/AMEMBASSY CANBERRA IMMEDIATE 1467
RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
RUEAWJB/DEPT OF JUSTICE WASHDC PRIORITY
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RUEHWL/AMEMBASSY WELLINGTON 1950
RHMCSUU/FBI WASHINGTON DC
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RHHJJPI/USPACOM HONOLULU HI
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UNCLAS SECTION 01 OF 02 JAKARTA 003043

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DEPT FOR EAP, EAP/MTS, DRL, S/CT, INL FOR BOULDIN
NSC FOR EPHU
DOJ FOR CRIM AAG SWARTZ, DOJ/OPDAT FOR
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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

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