Death penalty apparently has no deterrent effect on drugs dealers. Without any regulation prohibiting drug distribution, Indonesia will surely have lost generation.

The above is the summary of the opinion expressed by the Executive Director of the National Narcotics Agency (BNN), Commissioner General I Made Mangku Pastika as the Direct Related Party in the hearing for judicial review of Law No. 22 Year 1997 on Narcotics (Narcotics Law) against the 1945 Constitution on Thursday, March 15, 2007 in the Constitutional Court’s courtroom. The hearing that commenced at 10:00 AM Western Indonesia Time was scheduled for hearing testimonies from the Government, DPR, the National Commission on Human Rights (Komnas HAM) and the National Narcotics Agency (BNN).

Mr. Pastika’s statement was based on various data indicating, among others, that during the last five years, there has been a 34.4% increase in drug-related cases each year. Fifteen thousand people in Indonesia die from drugs per year. “It means that there are 41 deaths every day due to overdose or drug-related HIV/AIDS infection. On the day the artist Alda Risma died from drugs, 40 other people also died due to the same cause,” explained Pastika.

In line with Mr. Pastika’s statement, the Minister of Law and Human Rights of the Republic of Indonesia, Dr. Hamid Awaludin stated that there are about 3.2 million drug users in Indonesia. 30% of the total 111,000 inmates nation-wide are implicated in drug-related cases. “Drug cases have transcended the gender, economic class and even age range limits,” explained Hamid.

In relation to the judicial review of the articles providing for capital punishment in the Narcotics Law, the Attorney General of the Republic of Indonesia Abdul Rahman Saleh, S.H., M.H. stated that the government had expressly rejected such request because all acts of criminalization are basically violating the human rights. “However, such violation is legal because it is in accordance with the prevailing law,” he said.

As to the right to life which is a non-derogable right under any circumstances as set forth in Article 28I Paragraph (1) of the 1945 Constitution, the Attorney General stated that this provision is actually limited by the application of Article 28J Paragraph (2) of the 1945 Constitution which provides that in exercising his rights and freedom, every person shall be subject to limitations stipulated by law.

Whereas in response to the government’s objection to the involvement of foreign citizens in filing a petition for judicial review, Todung Mulya Lubis, the Attorney-in-Fact for Australian citizens Myuran Sukumaran and Andrew Chan, stated that this is actually possible in the context of the universal principles of Human Rights, as already performed in Australia and the USA. “For example, in the USA, Hamdan, a citizen of Yemen who was detained in Guantanamo prison, challenged the American Government before the Supreme Court for depriving him of his legal rights,” explained Todung.

Background

The hearing was held for examining two cases with similar petitions for judicial review of the Narcotics Law, namely case No. 2/PUU-V/2007 filed by four petitioners namely, Edith Yunita Sianturi and Rani Andriani (Melisa Aprilia), both are inmates in a special correctional institution for women in Tangerang, and Myuran Sukumaran and Andrew Chan, Australian citizens who are undergoing their punishment in Krobokan Correctional Institution, Kuta, Bali, represented by their Attorneys-In-Fact, Dr. Todung Mulya Lubis, S.H., LL.M., Ir. Alexander Lay, S.H., LL.M., and Arief Susijamto Wirjohoetomo, S.H., M.H. The Petitioners are on death row and have followed the proceedings from the District Court level to the Supreme Court level for a criminal offense prescribed in the Narcotics Law within the territory of the Republic of Indonesia.

Whereas case No. 3/PUU-V/2007 was filed by Scott Anthony Rush, Australian citizen represented by his Attorney in Fact Denny Kailimang, S.H., M.H. cs. The Petitioner has been sentenced with death penalty by the Supreme Court and is presently behind bars in Krobokan Correctional Institution, Bali.

The Constitutional Court has issued Decision No. 2-3/PUU-V/2007 dated February 21, 2007 to combine the two cases as they have similar substance.

Death penalty sanctioned on the Petitioners is been based on the provision prescribing death penalty in the Narcotics Law, which have had binding legal effect (in kracht van gewijsde). However, it has not been executed yet. In the explanation of their petition, the Petitioners state that the verdict has harmed their interests and constitutional rights to life as guaranteed and protected by the 1945 Constitution.

Based on the suggestion of the Chairperson of the Panel of the Constitutional Court Justices, Prof. H. A. Mukthie Fadjar, S.H., M.S., to revise their petition, the Petitioners in case No. 2/PUU-V/2007 requested the Panel of the Constitutional Court Justices to declare, firstly, that Article 51 Paragraph (1) Sub-Paragraph (a) of Law No. 24 Year 2003 concerning the Constitutional Court is contradictory to Article 28D Paragraph (1) of the 1945 Constitution and to declare the article as having no binding legal effect, with all legal consequences of the declaration.

Secondly, they requested the Justices to declare that Article 80 Paragraph (1) Sub-Paragraph (a), Article 80 Paragraph (2) Sub-Paragraph (a), Article 80 Paragraph (3) Sub-Paragraph (a), Article 81 Paragraph (3) Sub-Paragraph (a), Article 82 Paragraph (1) Sub-Paragraph (a), Article 82 Paragraph (2) Sub-Paragraph (a), Article 82 Paragraph (3) Sub-Paragraph (a) of the Narcotics Law insofar as they are related to death penalty, do not have binding legal effect with all the legal consequences thereof.

As a response to the suggestion of the Member of the Panel of Justices, Achmad Roestandi, S.H., the Petitioners in case number 3/PUU-V/2007 in the petitum of their revised petition requested the Panel of Constitutional Justices to grant their petition in its entirety and to declare that Article 80 Paragraph (1) Sub-Paragraph (a), Article 80 Paragraph (2) Sub-Paragraph (a), Article 80 Paragraph (3) Sub-Paragraph (a), Article 81 Paragraph (3) Sub-Paragraph (a), Article 82 Paragraph (1) Sub-Paragraph (a), Article 82 Paragraph (2) Sub-Paragraph (a), Article 82 Paragraph (3) Sub-Paragraph (a), insofar as they are related to the phrase: “...death penalty or...” are contradictory to Article 28A and Article 28I Paragraph 1 of the 1945 Constitution and to also declare that those articles do not have binding legal effect.