This blog post is part of our Frequently Asked Legal Questions series.
In late April 2015, Indonesia executed two Australian citizens, Andrew Chan and Myuran Sukumaran, who had been convicted of drug trafficking offenses in 2006. The two men were part of the “Bali Nine” syndicate that had attempted to smuggle 18 pounds (more than 8 kilograms) of heroin from Thailand to Australia, via Indonesia, and were arrested in Bali in April 2005. In addition to the two Australians, six other convicted drug offenders, including five foreigners, were executed by firing squad on April 29, 2015, shortly after midnight Indonesian time. The other foreigners were from Nigeria (three men), Ghana, and Brazil. A French man who was also due to be executed for drug offenses was recently given a temporary reprieve in order for a new legal challenge to be heard. The execution of a woman from the Philippines was also halted shortly before the scheduled time after another woman admitted she had recruited her to be a drug courier and Philippines officials frantically contacted their counterparts in Indonesia, arguing that the convicted woman’s testimony would be needed in the Philippines.
These and the earlier executions of five foreigners and one Indonesian citizen for drug offenses in January 2015, have been the subject of significant diplomatic and public discussion, and have received considerable media and academic attention in the Asia-Pacific region and elsewhere. I previously wrote about some of the issues surrounding the Bali Nine cases in a 2010 blog post, when three members of the group were facing the death penalty. I have continued to follow developments in the cases via news reports, academic writings, and social media. The following are some of the legal issues discussed by the media, politicians, and the public.
1. What are Indonesia’s laws related to drug trafficking and the death penalty?
Indonesia’s current law related to drug offenses is Law No. 35 of 2009 on Narcotics (an English version is available here). The previous law, under which the members of the Bali Nine group were convicted, was Law No. 22 of 1997 on Narcotics. Both of these laws provide for the death penalty (pidana mati or hukuman mati (capital punishment)) to be imposed for the trafficking of Class I drugs in larger quantities. Class I drugs include heroin, methamphetamine, and a number of other substances. Under the current law, article 113 provides that a person who produces, imports, exports, or distributes Class I drugs in plant form weighing more than one kilogram, or in non-plant form and weighing more than five grams, may be sentenced to death, life imprisonment, or imprisonment for between five and twenty years.
The President of Indonesia, Joko Widodo (known in Indonesia as Jokowi), who was elected in 2014, has emphasized that the strict laws against drug trafficking are needed as the country is facing a drug crisis. He has cited figures that indicate 50 people a day die from using drugs in Indonesia. However, many have disputed these figures. President Widodo has stated that he will not grant clemency to anyone sentenced to death for drug offenses. There are currently around 60 other people in Indonesia’s prisons who received this sentence for such offenses.
The death penalty is also available under several other laws in Indonesia, including the Penal Code and laws related to corruption and terrorism. Surveys have shown that a majority of Indonesians support the death penalty, including for drug offenses. However, between 2008 and 2013 there was an unofficial moratorium on all executions. The moratorium ended when four executions were carried out in 2013 (including two for drug offenses), followed by the six earlier this year.
Procedures for the death penalty are set out in Presidential Decree No. 2 of 1964 (Law No. 2/PNPS/1964, later adopted as a law by Law No. 5 of 1969). Under this law, and under article 11 of the Penal Code, the death penalty must be executed by shooting the sentenced person to death. A Constitutional Court decision, Decision No. 21/PUU-VI/2008, in which the Court reviewed and upheld the constitutionality of the 1964 law, reinforced that the only acceptable method of execution in Indonesia is by firing squad. Some news articles related to the recent executions provided information on the formal procedures involved in implementing this law.
2. Do other countries have similar laws regarding drug trafficking?
Indonesia’s drug laws are seen as particularly tough. In Southeast Asia, however, some other countries also have laws that impose the death penalty for certain drug offenses. This includes Malaysia and Singapore, where the death penalty is actually mandatory for trafficking narcotics in larger quantities. According to a 2012 study, there are potentially thirty-three countries or territories around the world that could impose the death penalty for drug trafficking under their laws, although of these only twelve to fourteen were estimated to have carried it out in practice in recent years. Six countries were identified as routinely carrying out such a sentence at the time of the study: China, Iran, Saudi Arabia, Vietnam, Malaysia, and Singapore.
In March 2015, the International Narcotics Control Board, in the foreword to its annual report, encouraged “those States which continue to impose the death penalty for drug-related offences to consider abolishing the death penalty for such offences.”
3. Has the death penalty for drug offenses been challenged in Indonesian courts?
In addition to the 2008 decision on the constitutionality of the death penalty law, the Constitutional Court in 2007 also specifically held that the death penalty for drug offenses under Law No. 22 of 1997 on Narcotics is constitutional. The petitioners in that case included three members of the Bali Nine group. They sought judicial review of articles 80 and 82 of the 1997 law. The arguments were essentially that these provisions were unconstitutional due to the provisions in the Indonesian Constitution regarding the right to life (arts. 28A & 28I(1)).
Expert witnesses from different countries, including from New York University, Columbia University, the University of New South Wales, and the National University of Ireland provided statements regarding the meaning of this right under international human rights law and in domestic law. The statements to the Court by Indonesian government agencies included arguments that criminal acts related to narcotics are “crimes against humanity” aimed at slowly destroying human beings, and therefore severe punishments, including capital punishment, are appropriate. Some legal experts from Indonesian universities and other entities also supported the need for the provisions and provided interpretations of the right to life in the Constitution and internationally.
The Court found that the foreign petitioners did not have standing to bring the case, but the Indonesian petitioners did. In terms of the principal issue, it ruled that the right to life provisions in the Constitution may be limited in accordance with articles 28J and 29(2) – that is, that the right to life is not absolute. In reaching its finding that the death penalty for drug offenses is a valid limit on this right, the judges reviewed international human rights treaties and concluded that the death penalty is possible for only the most serious crimes. They then referred to international conventions on narcotics as indicating the seriousness of crimes involving drug trafficking. In addition, they considered the fact that other countries, specifically Malaysia and Singapore, provide for the death penalty for drug offenses. There were four dissenting opinions, including three that disagreed with the majority regarding their findings on the principal issue.
While upholding the ability to impose the death penalty for drug offenses, the majority of the Constitutional Court judges also recommended that, in the context of considering reforming and harmonizing laws related to capital punishment, and in implementing those laws, “capital punishment shall be imposed with a probation period of ten years [and] that if the convicts indicate good behaviors [the sentence] may be changed into a life imprisonment or 20 years.”
4. What are the appeal processes for those sentenced to death?
Much has been written about the clemency decisions of the President of Indonesia with regard to the Bali Nine duo and others convicted of drug offenses. Article 14(2) of the Constitution gives the President power to grant amnesty, while specific procedures related to clemency are contained in separate laws: previously Law No 3 of 1950 on Appeals for Clemency, and now Law No. 22 of 2002 on Clemency, amended by Law No. 5 of 2010. According to one study published in 2014 on clemency in death penalty cases in Southeast Asia, twenty-four to thirty-three percent of death penalty cases in Indonesia result in clemency.
Before reaching the President, cases must go through appeal processes in the different courts. The judicial hierarchy in Indonesia in relation to criminal cases includes District Courts in each city and district, and High Courts in each province and special region. The Supreme Court (Mahkamah Agung) is the final court of appeal and can also reopen a case for “reconsideration.” The powers and procedures of the courts are governed by different laws, including Law No. 8 of 1981 on Criminal Procedure and Law No. 14 of 1985 on the Supreme Court.
President Widodo rejected the clemency appeals of the two Bali Nine members in January 2015. There were subsequently various attempts to seek rulings on issues such as how the clemency decisions were made and allegations that judges sought bribes for lower sentences in the original trial. With regard to clemency, lawyers for the two men claimed that the President did not have all the documents needed to make a determination with respect to their cases, did not give reasons for his decision, did not consider the extent of rehabilitation of the men, and that he could not make a blanket ruling regarding drug cases and instead had to examine each clemency appeal on its own merits. The State Administrative Court in Jakarta ruled in April that it did not have jurisdiction to determine the matter, and an appeal was then lodged with the Constitutional Court. However, it was noted by an Indonesian law expert, that the Constitutional Court would not have the power to alter the sentence, only to state how the clemency law should be interpreted. The Court did not hear arguments in the case prior to the executions taking place, and on May 21 it dismissed the case on the grounds that the petitioners are now deceased.
The cases of the others executed alongside the two Australians also progressed through appeal and judicial review processes in various courts.
5. How have different countries reacted to the executions?
Several countries with citizens impacted by death sentences for drug offenses in Indonesia have engaged in considerable diplomatic efforts to seek reprieves for those individuals. Following the executions that have taken place this year, some of these countries have expressed their concerns through diplomatic actions. In January this year, both the Netherlands and Brazil recalled their ambassadors from Indonesia. A spokesman for the Brazilian president said that “[u]sing the death penalty, which is increasingly rejected by the international community, seriously affects relations between our countries.” Later, in February, Indonesia recalled its new ambassador to Brazil after the ceremony to present his credentials at the presidential palace was postponed without notice.
Australia also recalled its ambassador from Indonesia following the April executions of two of its citizens, and warned of further diplomatic sanctions. The French ambassador has said that if the execution of the French citizen goes ahead it would “not be without consequences on our bilateral relations.” Meanwhile, the Nigerian government summoned the Indonesian ambassador to meetings following both the January and April executions.