"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, April 6, 2015

'Bali Nine': Indonesia Rejects Appeal by Australian Death-Row Convicts

Andrew Chan, Myuran Sukumaran
Andrew Chan, Myuran Sukumaran
Andrew Chan, 31, and Myuran Sukumaran, 33, now face another excruciating wait while the appeals of other foreigners condemned to death for drug-related crimes are heard. Indonesia's Attorney-General, Muhammad Prasetyo, has said that all 10 - including Chan and Sukumaran - will be executed at the same time.

The latest crushing court defeat follows repeated pleas for mercy by the Australian Government, as well an international campaign - joined by celebrities, politicians, artists and musicians - urging Indonesia to spare the Australian pair's lives.

The most recent appeal was made in a Facebook post on Sunday by the British band Mumford & Sons, drawing their fans' attention to the men's plight.

The ringleaders of the "Bali Nine" heroin smuggling operation, Chan and Sukumaran had asked the State Administrative Court to overturn its earlier decision, in February, that presidential decrees fall outside its jurisdiction.

But the three judges ruled yesterday that the "refusal of clemency is not in [the court's] authority ... That is the President's decision".

Last December, claiming that the country was facing a "drug emergency", Widodo announced that none of the 64 drug criminals then on death row would have their sentences commuted to life imprisonment. Six of those, including five foreigners, were executed in January.

The Australians, widely recognised to have rehabilitated themselves during a decade in jail, argued that the President - who is under domestic pressure to take a hard line on drugs - is duty-bound to consider each plea for clemency in detail and individually.

One of their lawyers, Todung Mulya Lubis, a prominent human rights advocate, said the fight was not over for the pair, who are being held in semi-isolation on the Central Java prison island of Nusakambangan.

"We have anticipated that the court would be very legalistic," he tweeted. "The court failed to understand the miscarriage of justice. The struggle to find justice continues. We lost our fight in the court. We have not lost our fight in finding justice."

Last week, Lubis said the legal team was "still trying to think outside the box".

If the latest appeal was rejected, Lubis said, "we will have to find our way ... to launch another legal action".

But it is doubtful whether there are any further legal avenues to pursue. After presenting their case to the Administrative Court last week, another of the pair's lawyers, Leonard Arpan, said: "We did our best."

Indonesia's Supreme Court has yet to rule on judicial review applications from two of the other eight death row prisoners, Frenchman Serge Areski Atlaoui and Ghanaian Martin Anderson. However, decisions are expected as early as this week.

The court has already rejected similar applications by Nigerian Raheem Agbaji Salami, Filipina Mary Jane Fiesta Veloso, the only woman in the group, and the one Indonesian, Zainal Abidin.

Salami is also planning an appeal in the Administrative Court. But all the legal hearings are expected to be fast-tracked. Veloso's request for judicial review was rejected within days, while the process normally takes up to three months.

Brazil's Rodrigo Gularte
Brazil's Rodrigo Gularte
Another of the eight, Brazilian Rodrigo Gularte, has been deemed mentally fit to be executed, despite being diagnosed with schizophrenia.

Brigid Delaney, co-founder of the Australian-based Mercy Campaign, yesterday tweeted: "No words ... Just such a heavy feeling of sadness."

Chan and Sukumaran were condemned to death in 2006, after being convicted of trying to leave Bali with 3.8kg of heroin, to import into Australia.

Speculation that Indonesia might delay the executions until after it has hosted the Asia-Africa Summit in the city of Bandung on April 19-23 - to which more than 100 national leaders have been invited - has been dismissed by Attorney-General Prasetyo.

What next for the two Australians?

•Lawyers for Andrew Chan and Myuran Sukumaran have said they will try to mount another legal challenge, but it is unclear whether any further avenues remain to be explored.

•Indonesia has said the pair will be executed at the same time as eight other death row prisoners, including seven other foreigners.

•The executions will not take place until all 10 convicted drug criminals have exhausted all their legal appeals. But that could happen within a matter of weeks, or even sooner.

•Indonesian law requires that all death row prisoners be given 72 hours' notice of their date of execution.

•All 10 will face a firing squad on the prison island of Nusakambangan.

Source: NZ Herald, Kathy Marks, April 6, 2015

Bali Nine: Indonesian court rejects Andrew Chan, Myuran Sukumaran's last-ditch appeal against execution

Bali Nine drug smugglers Andrew Chan and Myuran Sukumaran have their appeal against president Joko Widodo's refusal to grant clemency thrown out by an Indonesian court.

An Indonesian court has rejected Bali Nine pair Andrew Chan and Myuran Sukumaran's appeals against president Joko Widodo's refusal to grant them clemency.

Mr Widodo had controversially ruled out granting mercy to the two Australians, who are due to face the firing squad on the Nusakambangan prison island.

On Monday, three judges from Indonesia's state administrative court said clemency fell under the constitution but not under administrative law, and so was not in their jurisdiction.

The court said it could only hear matters to do with regulations created by parliament or government.

Chan and Sukumaran had argued that Mr Widodo did not give proper consideration to their pleas for clemency.

The pair were convicted in 2005 of being the ringleaders in a plot to smuggle heroin out of Indonesia.

During the case an expert witness was used to try to convince the court Mr Widodo's refusal to grant pardons could be challenged and the administrative court was the right jurisdiction.

However, the president's legal team argued his clemency power could not be contested and the court did not have the authority.

In their verdict, the judges dismissed expert witness testimony provided by Mr Widodo's lawyers because they did not appear in person.

"There is no more legal recourse," Novarida, head of the state lawyers team, told reporters after the decision.

Lawyers for the pair said they were disappointed in the verdict and vowed to continue to pursue all legal options to save Chan and Sukumaran.

"They have the right to live, and the state attorney knows that [the law] allows them to defend their lives," the pair's lawyer Leonard Arpan told reporters.

Peter Morrissey SC, who is part of the team of lawyers that has been exploring every legal avenue to spare the two Australians, told Lateline the pair may not hear the result until Tuesday, citing their location on Nusakambangan island as the reason for the delay.

He said the pair would be disappointed with the result, but were resilient and in good spirits.

"Of course it's a pretty stressful situation. They will be disappointed when they're told of the result," he said.

"They're resilient. They take blows like this all the time and they remain lovely people ... they are good, strong people.

"They know that there was a chance of winning and a chance of losing ... they're also aware that we're going to keep fighting," he said.

Legal team to appeal to Indonesia's constitutional court

Another of the pair's lawyers, Michael O'Connell, said in the next few days the pair's Indonesian legal team would lodge an application in Indonesia's constitutional court.

"That application is essentially directed to the way in which the clemency law should be interpreted," he told the ABC.

"It argues that there should be an obligation on the president to genuinely consider the clemency application."

Mr O'Connell said the judges' decision, however, came as a surprise.

"Whilst there's a constitutional power for the president to grant clemency, that power is regulated by statute," he said.

"The application [in the administrative court] was really directed to the law that regulates clemency rather than the constitutional power."

In a statement, Foreign Affairs Minister Julie Bishop said the Australian Government was disappointed with the decision.

"Both men have undergone extensive rehabilitation and I will continue to make representations to my counterpart, just as Australia will continue to use all diplomatic options to seek a stay of execution," she said.

Opposition Leader Bill Shorten and Opposition spokeswoman for foreign affairs Tanya Plibersek said all legal processes should be allowed to run their course.

"While there's life, there's hope," they said in a joint statement.

"We will not give up. We continue to offer every support to the Australian Government in relation to this matter."

The court's ruling against Chan and Sukumaran does not mean they will face a firing squad straight away.

The two are among 10 drug convicts awaiting execution on Nusakambangan island prison, but the Indonesian government is waiting for all of those listed for execution alongside them to exhaust all legal avenues of appeal.

How long that could take is still unclear.

Jakarta has said it will wait for all legal appeals to be resolved before putting the group to death at the same time. Some other convicts have lodged Supreme Court appeals, which could take weeks to resolve.

Indonesia originally planned to carry out the executions in February, but, following an international outcry, agreed to let legal appeals run their course.

Indonesia resumed executions in 2013 after a five-year hiatus. It did not put anyone to death in 2014 but executed six drug convicts in January this year.

Source: Radio Australia, April 7, 2015 (local time)

AG won't wait for another Bali Nine appeal

Nusakambangan island, where executions are carried out in Indonesia.
Nusakambangan island, where executions are carried out in Indonesia.
Andrew Chan and Myuran Sukumaran have lost their final chance at being spared execution, and Indonesia won't respect any fresh legal action for the Australians, the attorney-general says.

HM Prasetyo had vowed to wait for 10 death row prisoners to exhaust their legal options before setting a date for their mass execution.

The state administrative court on Monday rejected an appeal for the Bali Nine pair, upholding its earlier decision that presidential clemency isn't within its jurisdiction.

Lawyers for the men now plan to challenge the constitutional court to outline the president's obligations in clemency.

They argue the executions should be stayed pending the new action, to be filed this week.

But Mr Prasetyo says he won't wait for another court challenge.

"No, there shall be no more (delays)," he said after Monday's verdict.

"This is proof of their tendency to delay ... it's like toying with law." The attorney-general argued clemency was a matter of presidential prerogative only.

"For me it's enough. It's finished. It's finished," he said.

The Australians' lawyers have argued that President Joko Widodo erred by rejecting their clemency on the basis they were drug offenders, without considering their rehabilitation.

Lawyer Leonard Arpan said their next move was planned in conjunction with human rights groups.

"After 10 years, this has been a successful rehabilitation program and it's very regretful if in the end, they must die," he told reporters after the verdict.

"It's our spirit to keep on fighting through any available avenues."

The federal government has also asked that new legal options be allowed to run their course.

Foreign Minister Julie Bishop said the government was disappointed by the court verdict.

"Both men have undergone extensive rehabilitation and I will continue to make representations to my counterpart, just as Australia will continue to use all diplomatic options to seek a stay of execution," Ms Bishop said in a statement.

"Again, the Australian government respectfully requests the president to review their pleas for clemency."

It's believed the constitutional review request on clemency would be the first of its kind.

The administrative court action was also unusual, having only been attempted once before and lost - a precedent raised in the judges' reasoning on Monday.

The administrative court had rejected the Bali Nine pair's challenge in February, determining the decrees by Mr Joko were not within its jurisdiction.

Chan and Sukumaran await execution in semi-isolation conditions on Nusakambangan, a penal island in Central Java.

Source: AAP, April 6, 2015

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