Indonesian constitutional judges have knocked back a legal challenge by three of six Australians sentenced to death for drug trafficking over the validity of the death sentences delivered against them.
In a split decision delivered in a Jakarta court room, the panel of nine judges rejected the application by three Australians and two Indonesians and upheld the death penalty in relation to drugs offences.
The judges ruled that the right to life in the constitution and under international protocols was not absolute and had to be balanced against the rights of victims of the drug trade.
They focused very heavily on effects of drugs while delivering their decision.
“It’s not against the constitution, (and it’s) not violating international obligations,” the judges ruled.
There were several dissenting judges, but numbers were not initially clear as the hearing ended.
The ruling is a major blow for Bali nine ringleaders Andrew Chan and Myuran Sukumaran, and drug mule Scott Rush, who had hoped a favourable ruling would add weight to their final appeals against their death sentences.
Six of the nine Australians convicted of drug trafficking in Indonesia are on death row.
Today’s decision considered whether a 2000 amendment to the constitution declaring the right to life as a basic human right could be upheld by other parts of the constitution.
Lawyers for Rush, Sukumaran and Chan launched the challenge in January, along with two Indonesian women, Edith Sianturi and Rani Andriani, who are also on death row for drug trafficking.
A victory in today’s case would not have automatically spared the lives of all the applicants.
The verdict could become the basis for a final appeal to the Supreme Court, which has at times refused to impose Constitutional Court decisions retrospectively.
It could also come too late for the other three members of the heroin smuggling scheme on death row, as they have already lodged their final appeals and did not join the constitutional challenge.
Before the decision, Foreign Minister Alexander Downer said Australia would make pleas for clemency for the Bali nine once all legal avenues had been exhausted for the convicted drug smugglers in Indonesia.
Mr Downer said that he had written to Indonesia on behalf of the condemned Australians “quite some time ago” and would intervene again when legal proceedings ceased.
But the government anti-death penalty stance did not extend to the men responsible for the Bali bombings.
“Although I’m opposed to capital punishment I won’t use any Australian government resources at all to plead on behalf of terrorists who killed 88 of my fellow countrymen and women,” he told reporters in Melbourne today.
“I make no apology for this … I would not weep for people who have killed 88 Australians if they were executed. I can’t pretend otherwise.”
After the decision, Mr Downer this evening said the Government would appeal to Indonesian President Susilo Bambang Yudhoyono if all legal appeals failed.
“We will plead for them,” he said.
Chan and Sukumaran’s lawyer said the ruling was a tragedy for his clients, and for anyone on death row in Indonesia.
“For me this is a setback for Indonesia’s human rights movement,” Todung Mulya Lubis said.
“This is a very disappointing day, a disappointing decision for everyone.”
In the 469-page ruling, which took more than four hours to deliver, the judges ruled the death penalty was valid for the Australians, and two death-row Indonesians who were also part of the challenge.
The penalty was not unconstitutional because the part of the constitution that enshrined life as a basic human right could be limited by law, the judges ruled.
Nor did the penalty violate any international obligations. Indeed, Indonesia must act because it had signed a international convention on fighting drugs.
“The punishment given to these criminals has to be looked at as an effort to bring back social harmony to society,” they said.
Drugs posed a serious threat to Indonesian society, and were “a danger of incalculable gravity”.
“The death penalty mentioned in the narcotics law (under which the Bali Nine and the Indonesians were sentenced) has been formulated carefully and correctly,” the ruling said, and was appropriate for the most serious drug offenders.
While today’s challenge to the death penalty related to drug crimes only, the judges said the case had broader implications.
The outcome could have affected other death penalty cases, including those involving terrorists, they said.
“The lives of the victims of such crimes must also be taken into account,” they said.
The other three death row members of the Bali Nine have already lodged their judicial reviews and are awaiting a decision by the Supreme Court.
with Dewi Cooke, AAP