Constitutional Rights - Only if You are Indonesian

The Constitutional Court handed down its Decision in the 'Death Penalty' case. Many were hoping for a watershed or seminal moment in Indonesian legal history and in many respects perhaps it was but in most respects probably not in the way many had envisaged and hoped for.

Cutting to the chase the Court upheld the constitutionality of the death penalty in Indonesian law. Simply, the arguments submitted that the death penalty was unconstitutional because it breached a constitutionally guaranteed 'right to life' under Chapter XA of the 1945 Constitution was rejected. Chapter XA is in essence a 'Bill of Rights' and incorporates many of Indonesia's human rights obligations under international conventions.

Chapter XA is interesting as it uses the Indonesian term 'setiap orang' which in a literal translation means all people. This is an inclusive term and can be distinguished from the more exclusive term 'warga negara Indonesia' or Indonesian citizen. Therefore, a reasonable interpretation of Chapter XA is that the provisions apply to all persons legally resident in Indonesia and not just Indonesian citizens. This can be distinguished from Article 51 of the Constitutional Court Law (Law No. 24 of 2003 if you're interested?) which explicitly refers to Indonesian citizens. The relevance here is that only Indonesian citizens can submit claims for judicial review of legislation that potentially is in conflict with the Constitution. In other words you must be Indonesian to enjoy the ability to prove legal standing at the Constitutional Court.

The application for review by the members of the Bali Nine who have been sentenced to death and who were hoping to have the death penalty declared constitutionally invalid are clearly not Indonesian citizens. But nonetheless would seem to enjoy constitutional protections under the provisions contained in Chapter XA, a real dilemma.

Now, this is one of those funny in a sadly perverse kind of a way moments. Perhaps the best course of action now is for someone to submit an application to the Constitutional Court to test the constitutional validity of Article 51 which restricts access to the Constitutional Court only to Indonesians where, as this case clearly highlights, there are occasions that the protected rights enjoyed by non-Indonesian citizens resident in Indonesia can be potentially breached. This in essence means there is not constitutional legal recourse for non-citizens. The Chief Justice of the Constitutional Court rightly pointed out that the rights of non-citizens to use the appeals process is no way infringed, simply a non-citizen may appeal their verdicts from the District Court through the High Court to the Supreme Court for both cassation and judicial review, and ultimately where all other avenues fail, they can also seek Presidential clemency or pardon.

The fact that the Constitutional Court upheld the validity of the death penalty is not really a surprise, the fact that it was a split decision was perhaps more of a surprise. The reason is that the death penalty is not expressly prohibited under international law. To suggest that it is misrepresents reality. This is not to say that the death penalty is not wrong. I am most definitely against the death penalty! No one has yet been able to convince me that the idea of an 'eye for an eye' or 'a tooth for a tooth' serves as a deterrent in any meaningful way. Besides recalling the words of a great pacifist and thinker for peace, Gandhi, an eye for an eye does nothing more than blind us to the real truth. I am not convinced that this is a mechanism that ensures law and order. Furthermore, as the Innocence Project and others like it have shown us the death penalty is fraught with danger where it is not uncommon that the innocent are sentenced to death.

So, the point after all this is that non-Indonesians resident in Indonesia have legal rights but they do not enjoy rights to constitutional review. However, in a strict legal sense this means that non-Indonesians enjoy protections under the Constitution but they do not have the legal right to seek judicial review of these rights if they believe that these rights have been breached.

'Such is life' as Ned Kelly would say!