Indonesia enacted its human rights law in 2000 and its constitutional court began operation in 2003. Its very first decision was to declare unconstitutional the retrospective application of Indoensia’s anti-terror laws to the Bali bombings. More recently, it issued a ten-year moratorium on the death penalty. And, today, the Bali bombers Amrozi, Mukhlas and Imam Samudra, who were convicted under Indonesia’s anti-terror laws, were executed for their crimes. It’s a case study of how transitional issues can cause a human rights law to go awry. Such issues, in a much less extreme form, also bedevil Victoria’s Charter.
SIx days after the Bali bombings, Indonesian President Megawati Sukanoputri issued an emergency decree setting out new terrorism offences. The Indonesian Legislative Assembly confirmed that law, as well as a further emergecy decree stating that the terrorism offences could be used against the Bali bombers. Various Bali bombers were soon convicted and sentenced to death. All of them raised constitutional objections to their trial and convictions based on this provision of the Indonesia’s Bill of Rights:
Art 28I(1) The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance
This provision is clearly relevant to the Bali Bombers, who were convicted under a law passed six days after the bombings and whose life is very much at stake.
Article 28I(1) covers the ground of a number of Charter rights, including:
9 Every person has the right to life and has the right not to be arbitrarily deprived of life.
27(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.
(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.
The omission of an equivalent to Charter s. 27(4) in Indonesia is controversial, given the repeated claims of human rights abuses by former regimes. The Bali court trying the bombers all rejected the bombers constitutional arguments, on the basis that the bombings were offences against international law and that in any case they should be limited in accordance with an Indonesian Constitutional provisions concerned with respecting the rights of others, which could be regarded as roughly similar to Charter s. 7(2).
However, when a lesser participant in the bombings – Maskyur Abdul Kadir – took his conviction for pariticpating in the bombings to the Constitutional Court in 2004, the Court, in a 5-4 decision, construed Art 28I(1) according to its literal terms and declare Indonesia’s terrorism law unconstitutional in relation to its retrospective effect, including to the Bali bombings. Since 2004, all prosecutions in relation to the Bali bombings have since been conducted under the existing Criminal Code, covering offences like murder and using explosives (which still carry the death penalty.) There would seem to be no cogent objection to retrying the people already convicted – including Amrozi, Mukhlas and Imam Samudra – under those laws.
So far, so straightforward. But then things get weird. And deadly. In the midst of a misguided international outcry against the Constitutional Court’s quite straightforward decision – a decision that would be made in many national courts, apart from Australia’s, with its absent bill of rights – Indonesia’s justice minister and the head of its constitutional court issued simultaneous statements to the effect that people already convicted under the invalid law would stay convicted. The basis for this was the Court’s apparent adoption of the transitional rule that it’s rulings were prospective only, an approach that is not atypical in constitutional courts that follow the continental European tradition. That being said, I’m told that, unsurprisingly, modern European courts have stepped back from that strict rule, especially in criminal cases.
The consequences of the Indonesian Constitutional Court’s approach to transition – that rights rulings only apply prospectively – are basically insane. Not only do they mean that the bombers’ conviction under an invalid law remains valid, and indeed that they can still be punished under it, but even Kadir got nothing out of his challenge. He remains in prison serving a fifteen year sentence, though at least he won’t get shot. Given that there appears to be a strict standing requirement in the Constitutional Court, the effect of its approach to transition is that human rights challenges will never carry any benefits to the people who bring them. When you add in the fear that some Indonesian lawyers have of being tarred with their clients’ brush, the dangers for Indonesia’s nascent human rights system are obvious.
The application of this approach in a case that is concerned with retrospectivity is especially absurd, as it basically locks in the retrospective application of applicable criminal offences until the first conviction under those offences reaches the court. But even that absurdity is less shocking that the use of the same transitional principle to carry out death sentences on Bali Bombers. Not only were they convicted under invalid laws, but the Constitutional Court has in the meantime applied the similarly unequivocal right to life to declare a moratorium on the death penalty. But, of course, that moratorium is prospective only.
For once, the Charter isn’t quite so bad. There’s no doubt that interpretations and remedies under the Charter can be applied retrospectively, including to the people who seek those remedies. But two features of the Charter have the capacity for similar, if less extreme, absurdity. First, Charter s. 49(2) bar the Charter’s application in proceedings commenced before 2007, permanently denying criminal defendants charged before then with any of the protections of the Charter, including the right to life and the bar on retrospective criminal laws. Second, declarations of inconsistent interpretation carry no legal benefits for anyone, including the people who seek them. If Victoria re-instated the death penalty, it would almost certainly be contrary to Charter s. 9. But, unless Parliament responded to a declaration of inconsistent interpretation by retrospectively repealing the dealth penalty law, the person who sought the certificate could still be executed.