Re: Lies 1998 Subtitle Indonesia Guardian
Edgars Rob
Human rights; right to life; arbitrary deprivation oflife; death penalty; equality; access to court by foreigners; InternationalCovenant on Civil and Political Rights; International Convention on theElimination of All Forms of Racial Discrimination; Indonesia;ConstitutionalCourt of Indonesia
1.This case a fundamentallyimportant one, not just for the individuals involved and the Indonesian legalsystem, but also for theAsia Pacific region and the international communitymore generally. It is the first occasion in over a decade in which the apexcourtof a major Asian jurisdiction has had the opportunity to examine in depththe question of the death penalty and its legality underinternational humanrights law, taking into account the major developments in human rights law andscientific studies about the supposeddeterrent effect of capitalpunishment.
2.As a member of the international community ofStates, Indonesia is bound by applicable rules of customary international law,aswell as by the treaties to which it has become party (including theInternational Covenant on Civil and Political Rights and theInternationalConvention on the Elimination of All Forms of Racial Discrimination). Underinternational law a State is obliged toensure that its constitution, laws andpractices are in conformity with its international obligations; the fact thatdomestic lawrequires or permits actions which are inconsistent withinternational obligations is no justification under international law forafailure to fulfil those obligations. (paras 6-8)
3.Customary international law prohibits discrimination on the basis ofnationality and Indonesia is obliged to ensure that personswho are notnationals are guaranteed and in fact enjoy the equal protection of the law,equal access to the courts and tribunals,and the right to a remedy for allegedviolations of internationally guaranteed human rights.
4.Under the ICCPR and the CERD Convention Indonesia is obliged to ensurethat persons who are not nationals enjoy the equal protectionof the law, equalaccess to courts and tribunals, and the right to a remedy for alleged violationsof internationally guaranteedhuman rights. (paras 37-70)
5.These customary international law and treaty obligations are binding onall organs of the Republic of Indonesia, and the actionsof the courts ofIndonesia, should they fail to do what lies within their power to ensure theenjoyment of those rights, may engagethe international responsibility ofIndonesia and give rise to liability on the international plane. (paras 7-8)
6.The considered views of the Human Rights Committeeand other UN human rights treaty bodies are viewed by courts and States partiesas a highly authoritative and persuasive interpretive source, and shouldnormally be followed. (paras 20-36)
8.This obligation specifically includes the duty to ensure to non-nationalsthe right of access to the courts and tribunals on abasis of equality withcitizens, including equal access to procedures before the Constitutional Courtas well as to all other courtsand tribunals.
9.Equality and non-discrimination in this context requires the identicaltreatment of citizens and non-citizens in relation to theprocedural right tobring cases before the Constitutional Court asserting violations of rightsguaranteed to them under the Constitution, unless the State clearly demonstratesthat there is an objective and reasonable justification for the distinctionbetween citizensand non-citizens. (para 55)
10.While the Constitution confers rights both on citizens and non-citizens(though some political rights are legitimately confined to citizens), article 51of the Law on the Constitutional Court appears to deny to non-citizens the rightto bring cases before the Constitutional Court incases in which they allegeviolations of the Constitution, and in which citizens in the same circumstanceswould be able to raise the same constitutional challenge. (paras 57-58)
16.While international law does not absolutely prohibit the imposition ofthe death penalty, it sees it as an exceptional measure,and there has been atrend supported by the majority of States over the last 50 years towards theabolition of the death penalty,and in particular the limitation of the offencesfor which it can be imposed. (paras 72-94)
21.The imposition of the death penalty (for drug offences) may be arbitraryin contravention of Article 6(1) of the ICCPR to theextent that it relates onassumptions about the unique deterrent effect of the death penalty, since thoseassumptions are not borneout by the empirical evidence. (paras 122-137)
1. Article 1, paragraph 1, of the Convention defines racialdiscrimination. Article 1, paragraph 2 provides for the possibilityofdifferentiating between citizens and non-citizens. Article 1, paragraph 3declares that, concerning nationality, citizenship ornaturalization, the legalprovisions of States parties must not discriminate against any particularnationality;
2. Article 1, paragraph 2, must be construed so as to avoid undermining thebasic prohibition of discrimination; hence, it shouldnot be interpreted todetract in any way from the rights and freedoms recognized and enunciated inparticular in the Universal Declarationof Human Rights, the InternationalCovenant on Economic, Social and Cultural Rights and the International Covenanton Civil and PoliticalRights;
3. Article 5 of the Convention incorporates the obligation of States partiesto prohibit and eliminate racial discrimination in theenjoyment of civil,political, economic, social and cultural rights. Although some of these rights,such as the right to participatein elections, to vote and to stand forelection, may be confined to citizens, human rights are, in principle, to beenjoyed by allpersons. States parties are under an obligation to guaranteeequality between citizens and non-citizens in the enjoyment of these rights tothe extent recognized under international law;
[1] This is a revisedversion of the Opinion submitted to the Constitutional Court of the RepublicIndonesia in April 2007 (Andrew Byrnes,Opinion on International Legal Issuesarising out of proceedings before the Constitutional Court to challenge theconstitutionalityof provisions of the Narcotics Law authorising imposition ofthe death penalty, 23 April 2007). The revisions involve the omission ofmaterial relating to the qualifications of the author as an expert witness.Iwould like to express my thanks to Ms Julia Mansour, law student at the UNSWFaculty of Law, for her assistance with the researchon which this opinion isbased. The opinion was prepared at the request of the legal advisers for ScottRush, one of the petitionersin thecase.
[2] Jakarta:Secretariat General,2003.
[3] Englishversion published by the National Narcotic Board), available at ,%20Year%201997%20on%20Narcotics.doc(visited 20 March2007).
[4] Unofficialtranslation available at
[5] -ottawa.org/indonesia/law_treaties.php(unofficial translation) (visited 14 April 2007)
[6] See Articles onState Responsibility, arts12-15
[7] Article2(2) of the ICCPR makes specific provision for this obligation in the context ofthat treaty.
[8] SeeInternational Law Commission, Articles on State Responsibility (2001),article 4:
[12] Convention (No105) concerning the Abolition of Forced Labour, ratified by Law No. 19 of 1999;Convention (No 138) concerning MinimumAge for Admission to Employment, ratifiedby Law No 20 of 1999; Convention (No 111) concerning Discrimination in Respectof Employmentand Occupation, ratified by Law No 21 of 1999; Convention (No 87)concerning Freedom of Association and Protection of the Right toOrganize,ratified by Presidential Decree No 83 of 1998; Convention (No. 100) concerningEqual Remuneration, ratified by Law No 80of 1957; Convention (No 98) concerningRight to Organize and Collective Bargaining, ratified by Law No 18 of 1956;Convention (No29) of 1930 concerning Forced Labour, ratified by Staatsblad No261of 1933.
[13]Commitment and voluntary pledges of Indonesia in the field of HumanRights, Diplomatic Note No 306/SOC-101/IV/06 from the Permanent Mission ofthe Republic of Indonesia to the United Nations New York to theSecretariat ofthe United Nations General Assembly, 28 April 2006, pp 2, 3, available at (visited 12 April2007)
[14] It wason that date that Indonesia, as a matter of international law, became formallylegally bound as a matter of treaty law bythe all obligations it has acceptedunder the ICCPR, although most of these would in any case have already beenbinding on Indonesiaas part of customary internationallaw.
[15] As of 13March 2007, there were 109 States parties to the First OptionalProtocol.
[16] Asof 13 March 2007, there were 60 States parties to the Second OptionalProtocol.
[17]Other important sources include interpretations by the International Court ofJustice or other judicial bodies of the relevant provisions,the interpretationby regional human rights bodies of similar guarantees in regional treaties onhuman rights, eg the judgments ofthe European and Inter-American Courts ofHuman Rights, and the African and Inter-American Commissions. The decisions ofnationalcourts may also prove useful. Many of these are readily availableon-line through the World Legal Information Institute: www.worldlii.org.
[18] Tangiora vWellington District Legal Services Committee [1999] UKPC 42; [2000] 1 NZLR 17, at 21 (PrivyCouncil)
[19] Seealso the judgment of Judge Robert (dissenting as to the result) in Gosselin vQuebec, Quebec Court of Appeal, 23 April 1999, at 223, referring to theoutput of the counterpart of the Human Rights Committee under theInternationalCovenant on Economic, Social and Cultural Rights:
"Notons que si les conclusions et recommandations du Comit n'ont pasde caractre contraignant, elles n'en refletentpas moins l'opinion duseul organ d'experts charg de faire des declarations de cettenature."[20]The General comments and General recommendations adopted by thevarious committees up until mid-2006 have been consolidated in UN DocHRI/GEN/1/Rev 8 (2006), available at -mc/documents.htm.
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